The Pennsylvania Supreme Court recently affirmed a Commonwealth Court decision in the matter of Pennsylvania State Police v. Michelle Grove, finding that motor vehicle recordings (MVRs) created by the Pennsylvania State Police (PSP) are not exempt, as a general rule, from disclosure pursuant to a Pennsylvania’s Right to Know Law (RTKL). The impact of this case has been dramatically reduced by Senate Bill 560 (“SB 560”), which makes the RTKL law inapplicable to audio and visual recordings created by law enforcement, was signed into law by Governor Wolf on July 7th.
In Grove, two PSP troopers responded to the scene of a motor vehicle accident, where their vehicle recording devices captured the troopers’ interactions with the involved motorists, as well as bystanders at the scene. Both audio and visual recordings of the scene were generated as a result. After completing the investigation, PSP issued criminal summary citations to a motorist involved in the accident.
Michelle Grove subsequently submitted a RTKL Request, requesting the MVRs generated by the recording devices in the troopers’ vehicles. PSP denied the request, alleging that the MVRs were exempt under the RTKL as criminal investigative records.
In its opinion, the Supreme Court discussed MVRs and their purpose. It found that while MVRs may contain investigative information, they are not investigative materials per se. The Court determined that MVRs often document non-investigative, routine interactions between the police and civilians, the sort of information the RTKL makes available to the public.
The Court ultimately held that where a police MVR is the subject of a RTKL request, the responding agency must determine on a case-by-case basis whether the MVR contains criminal investigative material. In order to be exempt as criminal investigative material, the Court held, the material “must be created to report a criminal investigation, document evidence in a criminal investigation, or set forth steps carried out in a criminal investigation.” Where only portions of the subject MVR constitute criminal investigative material, the Court held that the responding agency shall redact such exempt information from the MVR and provide those portions of the MVR which are not exempt under the RTKL.
Governor Wolf’s signing of SB 560, however, renders the Grove decision almost moot. SB 560 makes the RTKL inapplicable to audio and video recordings created by law enforcement, and provides new regulations governing requests for these recordings. The language of SB 560 expands the scope of recordings exempt from disclosure pursuant to a RTKL request. Under this new broad language, any recording that merely contains “potential evidence in a criminal matter” or “information pertaining to an investigation or matter in which a criminal charge has been filed”, is now exempt.
The entirety of Section 67(A)(4) of SB 560 reads:
If a law enforcement agency determines that an audio recording or video recording contains 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 the reasonable redaction of the audio or video recording would not safeguard potential evidence, information pertaining to an investigation, confidential information or victim information, the law enforcement agency shall deny the request in writing. The written denial shall state that reasonable redaction of the audio recording will not safeguard potential evidence, information pertaining to an investigation, confidential information or victim information. (Emphasis added)
As the section makes clear, agencies responding to requests must still determine whether reasonable redaction would safeguard information exempted by SB 560. If so, the agency must provide a redacted copy of the recording to the requesting party.
In addition to modifying what records are exempt, SB 560 creates a new appellate procedure for denials. Where the RTKL requires appeals of denials to be submitted to the Office of Open Records, SB 560 directs appeals of denials to be filed with the court of common pleas with jurisdiction. Importantly, where an agency denies a request for a law enforcement recording, SB 560 requires the denying agency to preserve the requested recording until the time period for judicial review of the denial has expired.
While SB 560 further exempts the disclosure of law enforcement audio and video recordings and minimizes the impact of the Supreme Court’s decision in Grove, it does not eliminate an agency’s requirement to review and assess whether the requested recording can be redacted to protect exempt material. Law enforcement agencies should familiarize themselves with the provisions of SB 560 to ensure compliance going forward. Municipalities and law enforcement agencies interested in learning more about Grove and SB 560 are encouraged to contact Lamb McErlane’s municipal department.
Max is an associate in Lamb McErlane’s litigation and municipal practice groups. Max handles a wide variety of municipal, land use, property tax, administrative and environmental law matters and advises townships, boroughs, school districts and municipal authorities, as well as corporations and individuals. He can be reached via email or phone 610-701-3260.