an agency is allowed “to reboot the entire fact-development process with the benefit of both perfect hindsight and a judicial explication” of the flaws in its initial attempt to defeat disclosure, ACLU claims that it is irreconcilable with the structure and goals of the RTKL and should be disapproved. 28 Today’s case, ACLU argues, is more akin to McKelvey v. Pennsylvania Department of Health, where this Court rejected a request to supplement the record because the agency in question had “received numerous opportunities to submit evidence and argument before the OOR, and chose not to take advantage of those opportunities.” 29 Finally, ACLU insists that the decision below constituted an abuse of discretion because courts may only adopt the mantle of advocate and sua sponte fashion relief in the rarest of circumstances, such as when there is a question of subject matter jurisdiction. 30 Here, PSP had consistently maintained that the Burig Affidavit by itself was sufficient to justify invocation of the public safety exception, and it had resisted the consideration of any other facts. 31 Because concerns about jurisdiction did not animate the Commonwealth Court’s disposition, because PSP never requested a remand, and because supplementation was antithetical to the position that PSP maintained throughout this litigation, ACLU requests that we deem the Commonwealth Court’s remand to be an abuse of discretion. Although it acknowledges this Court’s statement in PSP II that, “[i]n keeping with its authority under the RTKL, the [Commonwealth Court] . . . retains discretion to further develop the record,” ACLU argues that any such development 28 See ACLU Br. at 21-22. 29 255 A.3d 385, 404 (Pa. 2021). In re Adoption of K.M.G., 219 A.3d 662, 668 (Pa. Super. 2019) (“It is well established that an appellate court may not raise an issue sua sponte, except when the issue addresses the subject-matter jurisdiction of the court.”). 30 31 See ACLU Br. at 22-23 (citing PSP briefs throughout this litigation). [J-3-2023] - 7