by Matt Clarke

On September 14, 2016, a Pennsylvania appellate court held that video and audio recordings made by police vehicles were not automatically exempt from disclosure under the Right-to-Know Law, 65 P.S. §67.101-76.3104 (RTKL) or the Criminal History Record Information Act, P.S. §§9101-9183 (CHRIA).

Michelle Grove made a request to the Pennsylvania State Police (PSP) under the RTKL for a copy of the police report and any video/audio recordings made by PSP when officers responded to a traffic accident. The PSP provided her a public information release report stating that both drivers had been cited, one for failing to yield right-of-way and the other for failure to wear a seat belt. The PSP also informed Grove they would not release the motor vehicle recordings (MVRs) made by the responding vehicles because they were exempt from disclosure under the RTKL as "criminal investigative records" and under the CHRIA as "pertaining to audio recordings, telephone or radio transmissions received by dispatch personnel, including 911 recordings."

Grove appealed to the Office of Open Records (OOR) which found that the recordings were not automatically exempt under either exemption because MVRs recorded many incidents that were not part of a criminal investigation and did not contain any recordings of emergency dispatch personnel. It then determined that the audio recordings of police interviewing witnesses could be related to a criminal investigation and could be redacted, but all of the video and the audio that did not include witness interviews must be released. PSP appealed.

The Commonwealth Court upheld the OOR's determinations. It considered a new argument by PSP, that disclosure would violate the Wiretap Act, 18 Pa.C.S. §§5702-5706, and held that it should be remanded to the 00R for additional findings on whether the citizens had a reasonable expectation of privacy when talking to police. PSP appealed.

The Supreme Court of Pennsylvania, Middle District, agreed with the findings of the OOR and Commonwealth Court except for the Wiretap Act issue. The court held that the troopers had no expectation of privacy in conversations between themselves. The conversations between troopers, witnesses and drivers, which took place in broad daylight at the scene of an accident on a public roadway within earshot of bystanders and passersby also could not have engendered an expectation of privacy. Therefore, the Wiretap Act did not apply and there was no need to remand that issue to the OOR. That part of the Commonwealth Court's opinion was reversed. The remainder of the Commonwealth Court's judgment was affirmed and the case was remanded to that court for further proceedings.

See: Pennsylvania State Police v. Grove, Penn.S.Ct., Middle Div., Case No. J-93-2016