On Friday, July 7, Governor Tom Wolf signed into law Act 22 of 2017. The law changes dramatically how police body camera footage is treated under Pennsylvania law. That same day, the Governor announced that the Pennsylvania State Police have received a $52,000 federal grant to help fund a pilot program for body-worn cameras. The timing is not coincidental. Act 22 encourages more widespread adoption of police body cameras by removing body camera footage from Pennsylvania’s Wiretap Act. Under the Wiretap Act, it is a felony of the third degree for any person to intentionally intercept, disclose, or use any wire, electronic, or oral communication. 18 Pa.C.S. § 5703. The Act also generally prevents the disclosure of the contents of the communication in court proceedings. 18 Pa.C.S. § 5721.1. Although an exception for police officer recordings existed, it did not apply in homes, and it contained an undefined mandate that the officer announce, “as soon as reasonably practicable,” that the interaction was being recorded. 18 Pa.C.S. § 5704(16). These issues have hampered widespread use of body cameras.
Act 22 simplifies the treatment of law enforcement recordings by changing the definition of “oral communication” under the Wiretap Act to exclude entirely communications captured by law enforcement which meet four criteria: (1) The communication must be made in the presence of a law enforcement officer, (2) who is on official duty, (3) who is in uniform or otherwise clearly identifiable as a law enforcement officer, and (4) who is using an approved recording device to intercept the communication in the course of law enforcement duties. This exclusion applies to members of the state police, individuals employed as police officers with MPOETC certification, sheriffs, and deputy sheriffs. Law enforcement personnel who meet these conditions are no longer required to announce that they are recording, or switch off their recording devices when they enter a residence, to avoid a Wiretap Act violation. Act 22 does not however, alter Fourth Amendment liability for the entrance into a home without a warrant or probable cause.
The Pennsylvania State Police is tasked with establishing and publishing standards for approved recording equipment. Now, the PSP will also be tasked with establishing standards for the onsite and offsite storage of the recordings. Law enforcement agencies that adopt body cameras will need to ensure compliance with these standards. Otherwise, the recordings will remain subject to the Wiretap Act.
Act 22 also provides that law enforcement agencies that make Act 22 compliant audio or video recordings must establish written policies for (1) the training of officers authorized to make recordings, (2) the time periods when the recording devices will be in operation, (3) the proper use, maintenance, and storage of the recording devices, (4) the information which is collected from audio or video recordings, including information storage, accessibility, and retrieval, (5) electronic records retention, (6) the use of facial recognition software, (7) a statement that violators of the policies will be subject to disciplinary procedures, and (8) supervisory responsibilities. Grant funding for the implementation of body worn cameras may be conditioned on the adoption of these policies, the availability of the policies to the public, and compliance with applicable recommendations of the Pennsylvania Commission on Crime and Delinquency.
Three weeks ago, in Pennsylvania State Police v. Grove, the Pennsylvania Supreme Court held that police motor vehicle (“dash cam”) recordings were not exempt from disclosure under Pennsylvania’s Right to Know Law. --- A.3d ----, 2017 WL 2645401 (Pa. Jun. 20, 2017). The reign of Grove will be short-lived, because Act 22 also establishes a statutory scheme governing the production of video and audio recordings captured by law enforcement agencies. These recordings will no longer be subject to the Right to Know Law.
Instead, under Act 22, a different process for requesting law enforcement recordings has been established. Requests must be made within sixty (60) days of the date the recordings are created. As before, requests will be made upon an agency’s Open Records Officer. The agency has thirty (30) days from the date of the request in which to produce the requested recordings or issue a written denial asserting one of the statutory bases for denying the requests. The Act provides that a law enforcement agency may enter into a memorandum of understanding with the Attorney General or the district attorney with jurisdiction to obtain consultation regarding the disclosure of requested recordings. Requests may be denied if the requested recordings contain potential evidence in a criminal matter, information pertaining to an investigation or a matter in which a criminal charge has been filed. Confidential information or victim information, as those terms are defined in Act 22, are also permitted to be withheld. Refusal to produce will be upheld if any of these exceptions are present and the “reasonable redaction” of the recording would not safeguard the protected information. Act 22 does not define a “reasonable redaction,” an omission which is sure to be the subject of litigation in the future. Previously, under the Right to Know Law, appeals of denied requests were brought to the Office of Open Records. Once Act 22 goes into effect, appeals of such denials will instead be brought to the court of common pleas.
Act 22 will become effective on September 5, 2017. Act 22 may promote more widespread use of body worn cameras, but it also establishes standards for the equipment utilized and the maintenance and production of the information gathered. Because it also impacts dash cam video, it will impact most municipal police departments. With the onset of Act 22 less than two (2) months away, the time for considering updating your policies and procedures is now.