instance, 47 to allow an agency the opportunity to make limited redactions where it had not
done so, 48 and to instruct OOR to conduct in camera review. 49 PSP argues that the
remand in this case was consistent with that authority, as well as our statement in PSP II
that the Commonwealth Court would retain its “discretion to further develop the record.”50
It is not.
In contrast to the foregoing examples, the Commonwealth Court in this instance
identified no outstanding questions of law or fact, nor any parties that should be granted
the opportunity to be heard. It discerned no legal error on the part of OOR. The
proceedings before OOR included in camera review. PSP had already redacted AR 6-9.
Neither party nor the court pointed to any particular evidence that was necessary to the
court’s analysis. Here, the Commonwealth Court answered the ultimate question 51 on a
record that was “sufficient for judicial review” 52 and—without naming any defect or
See, e.g., UnitedHealthcare of Pa., Inc. v. Baron, 171 A.3d 943, 965 (Pa. Cmwlth.
2017) (remanding to OOR to address two legal questions); Dep’t of Labor and Indus. v.
Heltzel, 90 A.3d 823, 834 (Pa. Cmwlth. 2014) (“[W]e remand to allow OOR to evaluate
the Section 708(b) exceptions in the first instance.”).
47
See, e.g., Pa. State Police v. Grove, 119 A.3d 1102, 1111 (Pa. Cmwlth. 2015)
(remanding to “permit PSP . . . to redact from [the] audio component [of the record]
witness interviews and utterances of private citizens who had no notice of the recording”),
rev’d on other grounds, 161 A.3d 877 (Pa. 2017); Carey, 61 A.3d at 377 (remanding
where “DOC did not connect responsive records with a threat to public safety” or address
whether it “may be able to redact responsive records and thus render them nonthreatening to public safety”).
48
See, e.g., California Univ. of Pa. v. Schackner, 168 A.3d 413, 423 (Pa. Cmwlth.
2017) (“[W]e remand this matter to the OOR to conduct in camera review of [the records]
and to determine whether the records should be exempt from disclosure based on the
attorney-client privilege.”).
49
50
PSP II, 232 A.3d at 671.
PSP III, 2021 WL 5356532, at *5 (finding that the Burig Affidavit is “insufficient to
connect the text of AR 6-9 with the risks he articulates”).
51
52
Bowling I, 990 A.2d at 822.
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