nevertheless must be consistent with the structure of the RTKL. 32 Here, where the court
reviewed the unredacted version of AR 6-9 in camera and concluded that PSP’s
justification was insufficient, the only appropriate action was to order that the record be
disclosed.
PSP counters that the Commonwealth Court acted within its discretion as the
ultimate finder of fact when it remanded the case to OOR to expand the record. Moreover,
PSP asserts, that action was consistent with this Court’s instruction in PSP II. 33 Contrary
to ACLU’s assertion, PSP argues that Carey controls and that supplementation of the
record is appropriate.
There, the Commonwealth Court recognized inherent risks
associated with the disclosure of information in the prison setting, 34 and PSP contends
that the same is true in the context of law enforcement. According to PSP, ACLU’s
position would represent “an impermissible restriction on the discretion of [fact-finding
courts] to seek additional evidence when circumstances” require it. 35 PSP asserts that
such a position would “remov[e] most, if not all, discretion from the court” to balance
competing interests and would require critical public safety information to be disclosed
“simply because an affidavit drafter hews slightly away from the needed specificity,
despite operating in good faith and raising legitimate concerns.” 36 PSP dismisses ACLU’s
concerns about agencies intentionally drafting affidavits that lack detail as “simple
fearmongering.”37
32
232 A.3d at 671; ACLU Br. at 25.
33
PSP Br. at 11-12.
34
See Carey, 61 A.3d at 377.
35
PSP Br. at 15-16.
36
Id. at 17.
37
Id.
[J-3-2023] - 8
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