Commonwealth Court Stays In Camera Review of Police Videos

On August 8, 2016, the Pennsylvania Commonwealth Court filed an opinion on three requests by the Office of Open Records (“OOR”) for in camera review of certain records, including dash-cam video, held by Pennsylvania State Police (“PSP”).  Com., Office of Open Records v. Penn. State Police, 370 M.D. 2016 (Pa. Commw. 2016)  PSP denied each request, and OOR petitioned the Court to enforce OOR’s order directing production of these documents for in camera review.

In the first of the three requests, Collazo v. PSP, the requester sought surveillance video obtained by PSP in the course of a criminal trespass investigation.  In the other two requests, Hamill v. PSP and Blanchard v. PSP, the requesters sought dash-cam and body-cam footage.  PSP argued that all of these records contained investigative information protected from release under the Criminal History Record Information Act (“CHRIA”).  CHRIA prohibits PSP from distributing “investigative information” to anyone other than criminal justice agents or agencies.  “Investigative information” is defined as any information assembled as a result of any formal or informal inquiry into a criminal incident or allegation of criminal wrongdoing.

Here, OOR did not argue that it was a criminal justice agency.  Rather, OOR cited the unreported Commonwealth Court decision PSP v. Grove, where the Court held that records connected to criminal proceedings were not automatically exempt records under CHRIA.  In Grove, the Court determined that dash-cam videos are not themselves investigative information exempt from disclosure.  However, PSP appealed Grove to the Pennsylvania Supreme Court.  Arguments were heard on September 14, 2016, and a final decision has not yet been rendered.  Consistent with other cases seeking dash-cam footage, the Court stayed the OOR’s petition seeking these records pending the Supreme Court’s decision.

As for the surveillance video in the Collazo request, the Court held that this video constituted an investigative record, noting that the video only came into PSP’s possession as part of a criminal investigation.  The court also distinguished this video from dash-cam video or other records created by PSP based on the fact that the video was recorded by a third-party.  Furthermore, the court held that OOR was not a criminal justice agency permitted to receive investigative information.  This holding indicates that records created by a private entity, once obtained by a law enforcement agency, can become protected investigative information under CHRIA that will not be available for disclosure.  As for the dash-cam videos, we will have to wait and see what the Pennsylvania Supreme Court decides in Grove.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.