Legal Update: Law Enforcement Recordings

  • Aug 30, 2018

Melissa Melewsky, Media Law Counsel

Q: My local police department just implemented a policy that requires officers to use body cameras during all interactions with the public.  Is the audio and video gathered by law enforcement officers public under the Right to Know Law?

A:  No, the Right to Know Law and its presumption of access no longer apply to audio and video gathered by law enforcement officers.  There is an alternative method for requesting access under Act 22 of 2017, but it is very restrictive and does not promote or facilitate public access to these records.  Pennsylvanians will face many obstacles, many insurmountable, when seeking for access to law enforcement audio and video under this law.

In August 2017, Pennsylvania enacted Act 22, which included significant changes to Pennsylvania’s Wiretap Act. The changes expressly removed from the Right to Know Law all audio and video recordings gathered by a law enforcement officer. The Act also removed communications between or within law enforcement agencies concerning an audio or video recording. The Act also gives law enforcement agencies discretion to proactively release audio and video recordings in some circumstances.

The Act creates new request and appeal procedures for those wishing to obtain access to law enforcement recordings when a law enforcement agency has not proactively provided access. In order to request access to law enforcement recordings, a requester must:

  1. File the request, in writing, within 60 days of the date when the audio recording or video recording was made.
  2. Serve the written request on the law enforcement agency’s designated RTKL open records officer.
  3. The request must be hand delivered or sent via certified mail with proof of service. 

The written request must meet several criteria under the Act. The request must:

  1. Specify with particularity the incident that is the subject of the audio recording or video recording, and at a minimum, include the date, time and location of the incident.
  2. Include a statement describing the requester's relationship to the incident that is the subject of the audio or video recording.
  3. If the incident occurred inside a residence, the request must also identify each individual who was present at the time of the recording, unless not known and not reasonably ascertainable.

Once a request meeting the criteria above is filed, the law enforcement agency has 30 days in which to respond to the request.  The Act requires law enforcement agencies to deny requests if the recording contains potential evidence in a criminal matter, information about an investigation or criminal charges, confidential information or victim information, and the reasonable redaction of the audio or video recording would not safeguard this information. If redaction can make the recording meet the standards of the Act, law enforcement agencies must release the recording. In the event that a law enforcement agency provides access, the law allows “reasonable fees” to be imposed.  The law does not otherwise define or specify what constitutes a “reasonable” fee.  If a law enforcement agency denies a request, it must do so in writing and explain that redaction is not feasible. 

If a request is denied or deemed denied by operation of law, the requester may file an appeal to the appropriate court of common pleas. The appeal must be filed within 30 days of the date of denial or deemed denial. The Act requires an appeal to take the form of a petition and imposes a fee of $125, in addition to any other court costs and fees that accompany a lawsuit.  

The petitioner (requester) must:

  1. Include a copy of the written request and any written responses to the request that were received.

  2. Certify that notice of the petition has been served or that service was attempted on each individual who was present at the time of the audio recording or video recording and on the owner and occupant of the residence, if the recording occurred inside a residence.
    • Notice shall not be required if the identity of an individual present or the location is unknown and not reasonably ascertainable by the petitioner.
    • Service of this notice must be made by personal delivery or certified mail with proof of service.
  3. Serve the petition on the open- records officer of the respondent within five days of the date that the petitioner files the petition.
    • Service must be made on the law enforcement agency’s open-records officer by personal delivery or certified mail with proof of service.

       

Once a petition has been filed, the burden of proof falls to the requester, and a court may only grant access if the petitioner (requester) proves, by a preponderance of the evidence, that:

  1.  The request was deemed denied, OR 
  2. The denial issued was arbitrary and capricious, AND,
  3. The public interest in disclosure of the recording or the interest of the petitioner outweighs the interests in nondisclosure. 

Courts dealing with these cases can consider a number of factors when balancing the public interest versus the interest in non-disclosure, including the public's interest in understanding how law enforcement officers interact with the public, the interests of crime victims, law enforcement and others with respect to safety and privacy and the resources available to review and disclose the audio recording or video recording.

As you can see from the complex and onerous system described above, public access to law enforcement audio and video is significantly burdened under Pennsylvania law, and Pennsylvanians will often be denied access and the accountability it provides. 

If your news organization is considering filing a request for law enforcement recordings or appealing a denial under Act 22, it is advisable to seek the assistance of counsel or contact the PNA Legal Hotline.

As always, this is not intended to be, nor should it be construed as, legal advice.  Please contact the PNA Legal Hotline at (717) 703-3080 with questions or concerns.

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