The Pennsylvania Supreme Court has ruled that the video portion of police vehicle dash cams are public records under the Right-to-Know Law (RTKL), unless some exception applies. The Supreme Court was required to evaluate, among other issues, whether the videos are exempt in their entirety as criminal investigative records.
The particular videos at issue in Pennsylvania State Police v. Grove contained both audio and video footage and were created when two Troopers responded to a motor vehicle accident. The videos did not record the accident itself, but instead showed the Troopers evaluating the scene and vehicle damages, conducting interviews with the drivers and witnesses, and obtaining statements about how the accident occurred. The Commonwealth Court below had held that the videos from Troopers’ cruisers were public records subject to disclosure and directed the PSP to release the recordings with certain portions that contained investigative material redacted. The PSP appealed.
The Supreme Court found that all such videos do not necessarily include investigative material simply because they are recorded while Troopers are performing their duties. The Court examined the language of the criminal investigative record exemption under the RTKL, which exempts from disclosure any record, “relating to or resulting in a criminal investigation.” While “criminal investigation” is not defined by the RTKL, the Court reasoned that the plain meaning of the term clearly refers to an official inquiry into a possible crime.
Since dash cam videos do not always “relate to” or “result in” criminal investigations, the Court determined that whether they would be exempt from disclosure under RTKL must be determined on a case-by-case basis. Regarding these videos, the Court observed that the videos showed nothing more than a bystander would observe and the PSP did not meet its burden of establishing that the videos constituted criminal investigative records. However, the portions of one of the Trooper’s recording could be redacted in accordance with the RTKL because it included his interviews with the drivers and witnesses.
The PSP attempted to argue that redacting portions of the video would constitute the creation of a “new record” and therefore would not be required to be disclosed under the RTKL. The PSP tried to assert redacting portions of the videos is distinct from redacting portions of physical documents. The Court soundly rejected this argument finding it contrary to the purpose and construction of the RTKL since this would effectively render Section 706 (relating to redaction) meaningless. “[R]edaction of the audio aspects of an existing MVR does not constitute the creation of a new record…” The Court held redacting portions of a video is not creating a ‘new’ record just as striking out portions of a written document with a black marker is not. The Court also held that the videos were not shielded from release under the Criminal History Records Information Act (CHRIA) as they were not ‘investigative information,’ nor the Wiretap Law as those being recorded were in a public place and had no reasonable expectation of privacy.
Two Justices, Justice Mundy and Justice Saylor, wrote concurring and dissenting opinions objecting to the finding of the majority that the criminal investigation exemption did not apply. Justice Mundy argued that the videos should be exempt from disclosure because they constitute criminal investigative records. She reasoned that whether charges were filed or citations were issued is irrelevant to the analysis, because not every criminal investigation leads to that conclusion. Similarly, the fact that the incident in the videos occurred in public is irrelevant when determining whether the criminal investigative record exemption applies. Finally, she argued that redacting the audio portion of the video would be insufficient since the visual recording shows the witnesses’ demeanors, physical conditions, and gestures. Justice Saylor agreed and asserted that the records should be exempted from disclosure and do not meet the criteria for mandatory redaction.
The Supreme Court’s decision comes at a pivotal time, as pending legislation, Senate Bill 560, contains provisions that would exempt police dash cam videos from disclosure under the RTKL. The bill will need to be voted on by the Senate and be signed by Governor Tom Wolf before it becomes law.
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.