Legal Hotline: Act 22 and Law Enforcement Recordings

Legal Hotline: Act 22 and Law Enforcement Recordings

PNA Legal Hotline

Q:  Are police dash and body camera videos public records under the Right-to- Know Law?

A:  No, the records are not subject to public access under the Right-to-Know Law.  Act 22 of 2017 removed law enforcement audio and video recordings from the RTKL and instituted a parallel, more restrictive means of requesting access that has resulted in significant barriers to public access.

Requesters seeking access to audio or video recordings made by law enforcement agencies must file a formal, written request within 60 days of the date the recording was made. The request must be filed with the law enforcement agency’s RTKL officer, although the RTKL does not apply to the recordings themselves.

The request must be hand-delivered or sent via certified mail, and must include the following information:

  • The date, time and location of the event recorded;
  • A statement describing the requester’s relationship to the event recorded; and
  • If the recorded incident took place inside a residence, the request must also identify every person present at the time of the recording, unless unknown and not reasonably ascertainable.

The agency has 30 days to respond to the request and it may deny requests for various reasons that are broader than the those found in the RTKL’s criminal investigation exemption. Some grounds for denial under Act 22 include revealing potential evidence in a criminal matter, the recording contains information pertaining to an investigation or a matter in which a criminal charge has been filed, confidential information or victim information appears on the audio or video, and redaction would not safeguard potential evidence.

If an agency denies access or fails to respond within 30 days, the denial or deemed denial  may be appealed within 30 days to a court with jurisdiction. The Office of Open Records does not have jurisdiction over Act 22 appeals. For local agency denials, the county Court of Common Pleas is the proper venue to bring an Act 22 appeal, for commonwealth agencies, the appeal would be filed with the Commonwealth Court. News organizations must retain counsel in order to pursue an Act 22 appeal in court.

The filing fee for an Act 22 appeal is $125, plus any fees and costs associated with litigation.  Appeals must include a copy of the written request and any responses, as well as proof of service showing the agency’s RTKL officer was served within five days of the appeal being filed.

If the recording was made inside a residence, the appeal must also certify that notice of the appeal was served on each individual present at the time of the recording, and on the owner and occupant of the residence, unless that information is unknown and not reasonably ascertainable.

If an agency grants an Act 22 request, “reasonable” fees may be imposed. The fee schedule is not set by law and fees will differ among law enforcement agencies. Law enforcement agencies and district attorneys also have broad discretion under Act 22 to release a recording (with or without a written request). However, in the years since Act 22 was passed, public access and discretionary release has been rare.

PNA opposed the law’s public access limits during the legislative process and Act 22 and its prohibitive public access provisions have come under increased scrutiny. PNA continues to oppose the lack of transparency created by Act 22, and we continue to work to improve public access to law enforcement recordings as legislative reform efforts take shape.

The Office of Open Records provides resources on Act 22 as well as a model request form here.

As always, this is not intended to be, nor should it be construed as, legal advice.  Please consult your organization’s private attorney or the PNA Legal Hotline at (717) 703-3080 with questions.