Earlier today, I spoke to a group of District Attorneys at a conference organized by the Pennsylvania State Association of Elected County Officials.
The conversation focused on the Right-to-Know Law and the unique role played by District Attorneys in terms of hearing appeals filed which are related to law enforcement records held by local agencies such as police departments. (Section 503(d)(2) of the RTKL.) It was a great conversation, and I appreciate the invitation.
This session, hosted by George Spiess, our Chief of Training and Outreach, will focus on those aspects of the Right-to-Know Law that are specific to police departments, such as investigatory records, the impact of Act 22 of 2017 (which covers police recordings), and CHRIA.
Act 22 applies to “any audio recording or video recording made by a law enforcement agency” — the Right-to-Know Law does not apply to requests for those recordings.
Act 22 defines “law enforcement agency” as:
The Office of the Attorney General;
A District Attorney’s Office; or
An agency that employs a law enforcement officer.
Requests for police recordings must:
Be sent within 60 days of the recorded event;
Be sent to the law enforcement agency’s Open Records Officer;
Include the date and time of the event; and
Include the requester’s relationship to the event.
In addition, if the recording was made inside a residence, the request must identify every person present (unless their identities are unknown and not reasonably ascertainable).
After receiving a request, the agency has 30 days to respond. A request may be denied if the recording includes:
Potential evidence in a criminal matter; or
Information pertaining to an investigation or a matter in which a criminal charge has been filed; or
Confidential information; or
Victim information; and
Reasonable redaction will not safeguard the potential evidence or the information.
If a request is granted, the agency can charge “reasonable fees” (which is undefined in the law) for a copy of the recording.
If a request is denied, the requester has 30 days to file an appeal with the appropriate Court of Common Pleas. There’s a $125 filing fee, and the appeal must include:
Copies of the request and any response(s);
Proof the agency’s Open Records Officer was served with the appeal; and
If the recording was made inside a residence, proof that everyone who was in the residence was served with the appeal (unless their identities are unknown and not reasonably ascertainable).
Act 22 does allow for the discretionary release of police recordings: Nothing in the law precludes a law enforcement agency or a prosecuting attorney with jurisdiction from choosing to release an audio or video recording, with or without a written request. (In certain cases, the law enforcement agency can only release the recording with the written permission of the prosecuting attorney.)
Also taking part in the program were State Senator Randy Vulakovich; State Representative Dom Costa; former State Representative David Mayernik; Commander Clarence Trapp, head of the Pittsburgh Bureau of Police’s Special Deployment Division; and Duquesne University School of Law Professor John Rago.
It was a great event and a great discussion, and I very much appreciate the invitation to participate.
Also part of the program are State Senator Randy Vulakovich; State Representative Dom Costa; former State Representative David Mayernik; Commander Clarence Trapp, head of the Pittsburgh Bureau of Police’s Special Deployment Division; and Duquesne University School of Law Professor John Rago, who has been working closely with state legislators to develop legislation governing the use of body-worn cameras.
The program is scheduled for 1:00 p.m. to 4:30 p.m. and is approved by the Pennsylvania CLE Board for 3 hours of substantive CLE credit, by the University of Pittsburgh School of Social Work for 3 hours of Social Work credit, and by the Pennsylvania Coroners Education Board for 1 hour of Coroners Education credit.
Commonwealth Court today issued an opinion (Pennsylvania State Police v. Michelle Grove) holding that “video recordings of interaction between law enforcement officers and members of the public in a public place” are not exempt from disclosure and, thus, are public records under the Right-to-Know Law. Such recordings are commonly referred to as dash cam videos or MVRs (“mobile vehicle recordings”).
Senior Judge James Gardner Colins authored the opinion, which held that “as documentation of law enforcement officers’ conduct in carrying out their duties, MVRs are at the core [of] the RTKL’s purpose of enabling the public to ‘scrutinize the actions of public officials, and make public officials accountable for their actions'” (quoting Pennsylvania State Police v. McGill, 83 A.3d at 479).
The case was remanded to the Office of Open Records for further review related to the audio component of one of the videos and Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, aka the Wiretap Act.