POLICE DASHCAM FOOTAGE MUST BE PROVIDED TO THE PUBLIC, UNLESS IT INCLUDES “INVESTIGATIVE INFORMATION”
The PA Supreme Court has recently held, in the case of PA State Police v. Grove, No. 25 MAP 2016 (June 20, 2017), that police dashcam mobile video recordings (MVRs) MUST be released to the public when requested pursuant to the Right To Know Law (RTKL), unless the MVR contains criminal investigative records.
On March 24, 2014, Grove made a request to the PA State Police (PSP) pursuant to the RTKL for “a copy of the police report, and any video/audio recordings taken by the officers” at the scene of a two-vehicle accident. The recordings at issue were two MVRs that were generated when two PSP troopers responded to the scene of the accident.
PSP denied Grove’s request, informing her that the recordings were exempt from any public disclosure because they were: (1) “criminal investigative records” under the RTKL and “investigative information” under the Criminal History Record Information (CHRIA) and (2) records “pertaining to audio recordings, telephone or radio transmissions received by dispatch personnel, including 911 recordings” under the RTKL.
Grove filed an appeal to the Office of Open Records (OOR) based on PSP’s letter response that denied her request. PSP alleged in its position statement the MVRs are criminal investigative records, and thus exempt from disclosure under the RTKL. The OOR issued its Final Determination, directing PSP to provide complete copies of the MVRs to Grove, reasoning that PSP failed to submit any evidence that the MVRs were investigative records and thus, failed to meet its burden they were exempt from disclosure.
PSP appealed to the Commonwealth Court and was permitted to produce supplemental information in support of its position, including an Affidavit that set forth the general standards and internal PSP regulations concerning the use of MVRs. The Affidavit provided that MVRs are typically activated when a trooper activates his or her emergency lights or siren. It also referenced a PSP internal regulation which set forth enumerated situations in which MVRs are to be used. Additionally, the Affidavit stated that MVRs are retained and destroyed by PSP on a normal schedule but, will not be destroyed when there is an anticipation the records are going to used “in civil, criminal, quasi-criminal, forfeiture, administrative enforcement or disciplinary proceedings.”
The Commonwealth Court noted that information documenting the actions of Commonwealth agencies, including the PSP, is presumed to be publicly accessible under the RTKL, unless an exemption applies. The court concluded that, to be exempt, records must be created to report a criminal investigation, document evidence in a criminal investigation, or to set forth steps carried out in a criminal investigation. The Commonwealth Court also determined that “MVRs are 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.” Citing instances in which MVRs do not contain investigative content (i.e. – “directions to motorists in a traffic stop or at an accident scene, police pursuits, and prisoner transports”), the court concluded that MVRs themselves are, therefore, not investigative material.
The Commonwealth Court thereafter applied the above legal analysis to the MVR information related to Grove’s request, concluding that, because the audio portion of one of the MVRs included witness interviews, that portion was deemed be investigative information and therefore exempt from disclosure. Accordingly, PSP was entitled to redact the audio portion but, PSP was not permitted to withhold the entire MVR.
When addressing PSP’s argument that the PA Wiretap Act precluded disclosure of the audio recording, the Commonwealth Court noted that the Act does not apply to “oral communications” where the speaker has notice of the recording; however, the record in Grove’s case failed to state whether or not the witnesses and drivers recorded on the requested MVRs knew they were being recorded. Therefore, the Commonwealth Court remanded the matter to the OOR to make that determination. Additionally, the Commonwealth Court directed PSP to redact from the MVR any audio portions if it included statements of private citizens who had no notice of the recording.
The PSP filed a petition for allowance of appeal to the PA Supreme Court, essentially arguing that the Commonwealth Court’s decision should be reversed because MVRs are always “related” to a criminal investigation. Therefore, the MVRs were exempt from disclosure under the RTKL and also included exempt “investigative information” under CHRIA. Grove countered that the Commonwealth Court correctly analyzed the nature and purpose of MVRs when it stated they “are 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.” In support of Grove’s position, the OOR filed an amicus brief arguing that the RTKL and CHRIA do not provide a general prohibition on the release of MVRs, and should ordinarilybe publicly accessible.
The PA Supreme Court first concluded that there is no dispute that MVRs are public records of an agency as defined in the RTKL and thus subject to public disclosure unless some exemption applies. It then considered whether MVRs generally (and the video portions of the MVRs at issue in Grove’s request) qualified under an enumerated exemption to disclosure described in the RTKL regarding “criminal investigative records.” Noting that the RTKL does not define the phrase “criminal investigation,” the Court looked to the plain meaning of a “criminal investigation,” concluding that it “clearly and obviously refers to an official inquiry into a possible crime.” With this standard in mind, the Court set out to determine whether the video aspects of the MVRs at issue depicted a systematic inquiry or examination into a potential crime.
The Supreme Court affirmed the Commonwealth Court’s conclusion that, in general, MVRs are not exempt from disclosure under the RTKL because MVRs do not always “relate to” or “result in” criminal investigations. Accordingly, the Court held that whether an MVR contains criminal investigative material must be determined on a case-by-case basis. In Grove’s case, the Court concluded that the MVRs at issue presented nothing more than what a bystander would observe, thus affirming the Commonwealth Court’s conclusion that the video aspects of the MVRs were not exempt from release to Grove pursuant to the RTKL.
The Supreme Court then considered whether disclosure of the MVRs, both generally and specifically, was prohibited by CHRIA. CHRIA prevents the disclosure of “investigative information” to the public, defining such information as “[i]nformation assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing and may include modus operandi information.” Having previously determined that the only potential “investigative information” on the MVRs requested was contained in the [redacted] audio portion of the witness interviews, the Supreme Court affirmed the Commonwealth Court’s decision that CHIRA did not prevent disclosure of the requested MVRs as redacted.
As to those redacted records, the PSP claimed that the Commonwealth Court’s decision improperly required it to create a “new record” in violation of the RTKL. The RTKL states that “an agency shall not be required to create a record which does not currently exist or, to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.” Grove and the OOR noted that the RTKL also specifically permits redaction of records and, requires agencies to redact exempt information from records that are otherwise subject to disclosure.
In addressing this issue, the Supreme Court concluded that the redaction of the audio aspects of an existing MVR does not constitute the creation of a new record and the Commonwealth Court’s order did not mandate PSP to create a new record in violation of the RTKL.
Lastly, the Supreme Court addressed the Commonwealth Court’s conclusion that the matter needed to be remanded to determine if the private citizens were placed on notice that they were being recorded. In reversing this portion of the Commonwealth Court’s order, the Supreme Court noted that it was clear under the circumstances that the individuals at the scene could not have had a reasonable expectation of privacy, or any justifiable expectation that their statements and images were not being captured on MVRs (or, by any number of cellphones, for that matter). Thus, the recordings did not involve an “oral communications” that, as defined by the Wiretap Act, required an “expectation that such communication was not subject to interception under circumstances justifying such expectation.” Accordingly, disclosure of the MVRs pursuant to the RTKL in the instant case did not violate the Wiretap Act.
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