1. Amendments to the Wiretap Act
Prior to passage of Act 22, the Pennsylvania Wiretap Act provided only a limited exception for police audio recordings of interactions with the public. The limited exception required a uniformed officer, in close proximity, to announce “as soon as reasonably practicable” that a recording was being made, and prohibited recordings inside residences. 18 Pa.C.S. § 5704(16). As such, the widespread use of police body cameras with audio was problematic under the Wiretap Act.
The Act 22 amendments provide a broad exemption for most police audio (and video) recordings. Specifically, Act 22 amends the Wiretap Act’s definition of an “oral communication” to exclude entirely communications recorded by law enforcement that meet the following criteria:
(1) The communication is made in the presence of a law enforcement officer who is on official duty;
(2) who is in uniform or otherwise clearly identifiable as a law enforcement officer; and,
(3) who is using an approved recording device to intercept the communication in the course of law enforcement duties.
If the criteria above are met, the police officer does not violate the Wiretap Act when recording audio, even when the officer is inside a residence. There is no longer a requirement under the Wiretap Act that police officers announce that they are recording, although it is advisable for the time being that officers provide such notice before recording inside a residence with a body camera. The State Police is charged with annually establishing recording equipment standards and storage standards.
2. Policies and Training
Act 22 provides that law enforcement agencies must provide training to officers authorized to use recording devices and establish written policies for the following:
(1) time periods when the recording devices will be in operation,
(2) proper use, maintenance, and storage of the recording devices,
(3) information which is collected from audio or video recordings, including information storage, accessibility, and retrieval,
(4) electronic records retention,
(5) use of facial recognition software,
(6) a statement that violators of the policies will be subject to disciplinary procedures, and
(7) supervisory responsibilities.
Written policies are also the best practice for general liability purposes. In the event a dispute arises regarding the use of body cameras, the department will want to show that it trains its officers on the use of body cameras and has implemented policies. For example, a written policy should make clear when officers should and should not have their body camera activated.
3. Public Records Requests
The Right-to-Know Law no longer governs public requests for police audio or video recordings. Instead, Act 22 establishes a new system and rules for such requests, effective September 5, 2017. In this regard, Act 22 effectively moots the recent decision by the Pennsylvania Supreme Court in Pennsylvania State Police v. Grove, 2017 WL 2645401 (Pa. Jun. 20, 2017), as applied to recordings made by police departments. Below is an outline of the new procedures under Act 22 for public requests for police audio and video recordings:
1. Requests for police audio or video footage must be made within sixty (60) days of the date the recordings are created. As prior to the Act 22 amendments, requests will be made to the department’s Open Records Officer.
2. The request must specify with particularity the incident or event that is the subject of the audio or video recording, including the date, time and location of the incident or event.
3. The request shall include a statement describing the requester’s relationship to the incident or event that is the subject of the audio or video recording.
4. If the event occurred inside a residence, the request shall identify each individual who was present at the time unless not known and not reasonably ascertainable.
1. The department has thirty (30) days from the date of the request to produce the requested recordings or issue a written denial asserting one of the statutory bases for denying the request, unless the requester and police department agree to a longer time period.
2. The police department 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.
3. Requests may be denied if the department determines the 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, and if “reasonable redaction” of the recording would not safeguard the protected information. The written denial shall state that reasonable redaction of the recording will not safeguard potential evidence, information pertaining to an investigation, or confidential information or victim information.
4. Once a request is received for a recording, the unaltered recording must be preserved. There are open questions regarding whether police departments must preserve recordings for a minimum number of days regardless of whether a request is received and whether a maximum retention period should also be in place.
5. The police department may establish reasonable fees relating to the costs incurred.
If an agency/department denies a request for a recording, the requester may file a petition in the Court of Common Pleas within thirty (30) days. The Office of Open Records no longer has jurisdiction over requests for law enforcement audio or video recordings. The following applies to such appeals:
i. The requester must pay a $125 filing fee.
ii. If the recording occurred inside a residence, the petition must be served on each individual who was present at the time of the recording and on the owner and occupant of the residence. Such service is not required if the identity of the individual present or the location is unknown and not reasonably ascertainable by the requester.
iii. The District Attorney may intervene in the appeal.
The Court of Common Pleas’ standard of review under Act 22 is highly deferential to the police department. The court may order disclosure, in whole or in part, only if all of the following are demonstrated by a preponderance of the evidence: (1) the denial of the request was arbitrary and capricious; and (2) the public interest in disclosure of the recording or the interest of the requester outweighs the interest of the Commonwealth, the law enforcement agency or the individual’s interest in nondisclosure. The court may also consider 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 resources available to review and disclose the audio or video recording.”
4. Related Privacy and Evidentiary Concerns
Although Act 22 amends the Wiretap Act to allow uniformed police officers, on official duty, to make recordings with an approved body camera while inside a private residence, there are questions surrounding how recordings inside residences may be used by police and when such recordings are admissible evidence or evidence of probable cause. These issues will most certainly be decided by the courts in the following years. There is also an open question as to whether the best practice is for police to provide notice when recording in order to deter undesirable behavior, even though the Wiretap Act no longer requires notice of recording.