The Commonwealth Court has affirmed in part an order of the Office of Open Records (OOR) requiring the Pennsylvania State Police (PSP) to disclose copies of dashboard mobile video recordings (MVR) from the scene of a traffic accident. Pennsylvania State Police v. Michelle Grove, 1146 C.D. 2014 (Pa. Cmwlth. Jul. 7, 2015).
The Court concluded that one MVR, which contained no audio component, did not fall under the Criminal Investigation Exemption of the Right-to-Know Law (RTKL). The Court also reversed and remanded an OOR order mandating disclosure of a separate MVR containing both audio and video components, permitting the PSP to redact any exempt information from the audio component prior to disclosing the MVR.
A requester submitted to the PSP a request under the RTKL seeking a copy of any audio/video taken by police officers when they arrived at the scene of a two-vehicle accident in 2014. Two officers arrived at the scene — one officer’s MVR (the Vanorden MVR) was purely video with no audio; and the other officer’s MVR (the Thomas MVR) contained both video and audio. The Vanorden MVR showed the trooper speaking with the two drivers and directing one of them to move his vehicle. The Thomas MVR recorded video and audio of the trooper interviewing both drivers, as well as bystanders nearby.
In determining whether the MVRs fell under the Criminal Investigation Exemption of the RTKL, the Commonwealth Court’s analysis turned on whether the MVR contained “investigative information.”
The Court noted that a mere connection to a criminal proceeding does not automatically exempt a record from disclosure. It also stressed that MVRs in and of themselves are not necessarily investigative information, and are therefore not automatically exempt from disclosure under the RTKL. In order for an MVR to be exempt from an RTKL request, the PSP must prove that the content (be it audio or video) of the MVR is investigative in nature. Ultimately, the Court determined that the Vanorden MVR lacked any investigative information because the MVR does not require an investigative event to be activated (it turns on automatically with the cruiser’s sirens or lights), and it did not record the officer carrying out any steps of a criminal investigation such as taking measurements, collecting evidence, or physically inspecting/analyzing the accident scene. As to the Thomas MVR, the Court concluded that the audio recording of the trooper’s interviews of the drivers was investigative information because possible criminal charges could result from the accident. The video depiction of the trooper interviewing the drivers was deemed not to be investigative information, thus the PSP was permitted to redact only the audio portions relating to the driver interviews.
The Court noted that previous OOR decisions categorizing MVRs as investigative records exempt from disclosure have been overruled. Also, although the audio/video distinction was crucial to the instant case, the Court did not go so far as to establish a bright-line rule that all audio content on MVRs are exempt from disclosure, but no video content is exempt. The determination of exemption hinges on whether the audio and video portions of the MVR qualify as investigative information.
Finally, the Court found that video portions of the MVRs were not exempt from disclosure under the Wiretap Act, but that it was possible for portions of the audio interviews to be exempt if the drivers or witnesses did not have notice or reason to believe their interviews were being recorded. The troopers’ audio recordings were not exempt, as they had notice that the MVRs were recording their conversations.
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.