Police Recordings and the Right to Know Law

Earlier this month, Attorney Allen Thompson authored a post Yes, You Can Record Police Officers During The Course of Their Official Duty. The following day, the Commonwealth Court of Pennsylvania released its decision in Pennsylvania State Police v. Grove, 1146 C.D. 2014. The primary issue in Grove was whether the video recordings of interactions between law enforcement officers and members of the public in a public place were exempt from disclosure under the Right to Know Law (RTKL).

Grove had requested a copy of the police report and any video and/or audio taken by the officers at the site of an accident. The Pennsylvania State Police (PSP) denied the request for video and/or audio recordings claiming those recordings were exempt as records “pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings,” under Section 708(b)(18)(i) of the RTKL. In its denial, the PSP provided a verification that gave no description of the video or audio or the nature or purpose of the records, but only concluded that they were exempt from disclosure.

Grove appealed the decision to the Office of Open Records (OOR), the administrative agency that handles RTKL appeals. The OOR issued a final determination ordering the PSP to provide copies of the recordings to Grove, as the verification that PSP submitted was not sufficient to show the recordings were records exempt under Section 708(b)(18)(i). The PSP appealed the decision to the Commonwealth Court.

The Court, exercising its discretion to permit a party to enlarge the record on appeal and consider additional evidence, allowed the PSP to submit an affidavit. The affidavit established that there were two video recordings responsive to Grove’s request. Id. at 5. The first recording had no audio component, while the second one did. The second recording included interviews of the two drivers and bystanders regarding the accident. Id.

More importantly, the affidavit set forth how the recording system is operated and the guidelines for its use. The recording equipment is activated and begins recording when a trooper activates his emergency lights or sirens. PSPs internal field regulations state that the equipment is to be used to document investigative work and also to record traffic and criminal stops, in-progress vehicle and crimes code violations, police pursuits, patrol vehicle travel when lights and sirens are activated, prison transports and other incidents the member deems appropriate while acting in performance of their duties. Id. at 6.

The PSP argued that the recordings were exempt from disclosure under Section 708(b)(16)(i) of the RTKL, which provides for the exemption of:

 A record of an agency relating to or resulting in a criminal investigation, including:

(i) Complaints of potential criminal conduct other than a private criminal complaint.

(ii) Investigative materials, notes, correspondence, videos and reports.

(iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised.

(iv) A record that includes information made confidential by law or court order.

(v) Victim information, including any information that would jeopardize the safety of the victim.

(vi) A record that, if disclosed, would do any of the following:

(A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges.

(B) Deprive a person of the right to a fair trial or an impartial adjudication.

(C) Impair the ability to locate a defendant or codefendant.

(D) Hinder an agency’s ability to secure an arrest, prosecution or conviction.

(E) Endanger the life or physical safety of an individual.

This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by the Pennsylvania State Police, local, campus, transit or port authority police department or other law enforcement agency or in a traffic report except as provided under 75 Pa.C.S. § 3754(b)(relating to accident prevention investigations).

The PSP argued that the recordings are “criminal investigative records because the accident to which they relate resulted in traffic citations, which are summary criminal offenses, and because one of the troopers investigated the accident before issuing the citations.” Id. at 8. The Court disagreed, finding that the PSP’s evidence demonstrated the recordings were “created to document troopers’ performance of their duties in responding to emergencies and in their interactions with members of the public, not merely or primarily to document, assemble or report on evidence of a crime or possible crime.” Id. at 9. Furthermore, the PSP uses the recordings to “document the entire interaction and actions of the trooper, including actions which have no investigative content, such as directions to motorists in a traffic stop or at an accident scene, police pursuits, and prisoner transports.” Id. The Court concluded that therefore the recordings were not investigative material or videos, investigative information or records relating or resulting in a criminal investigation exempt under Section 708(b)(16).

The Court did agree that some of the information contained on the recordings in this instance, such as witness interviews, are investigative information exempt from disclosure by Section 708(b)(16). However, that doesn’t prevent PSP from having to produce the record, they must do so with the information redacted. Id. at 10.

As such, even the video and audio recordings that the PSP make in the performance of their duties may be available under a RTKL request.

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