Municipal Alert by Sheryl L. Brown, Esquire
To Record or Not to Record…That is the Question.
What the Passing of Senate Bill 976 Could Mean for the Use of Body Cameras.
Senate Bill 976 was initially introduced to amend the Pennsylvania Wiretap Act to permit law enforcement officials to use body worn cameras. More than a year after the Bill was referred to the Judiciary, SB 976 passed by a 45-5 vote on October 19, 2016. What was approved, however, was not just an amendment to the Pennsylvania Wiretap Act to permit law enforcement audio recordings within a residence, but also an exemption of the production of law enforcement created audio or video recordings from the Right to Know Law.
SB 976, as approved by the Pennsylvania Senate, will permit law enforcement officers (a member of the Pennsylvania State Police or MPOETC certified) to record audio and video within a person’s residence, previously precluded by the Pennsylvania Wiretap Act. Accordingly, the potential of violating the Wiretap Act has been removed paving the way for law enforcement officers to utilize approved body cameras to record both audio and visual communications without fear of violating any laws. SB 976 also acts to amend exceptions to the Wiretap Act regarding correctional facilities interception of oral, electronic or wire communications involving inmates.
Additionally, a new proposed amendment to SB 976 would amend Title 42 to include a chapter regarding the Production of Recordings by Law Enforcement Officers. More specifically, proposed Chapter 67 would exempt audio or video recordings by a law enforcement officer from the Right to Know law, instead statutorily creating a separate procedure for the production of such recordings. Much like the Right to Know law, an individual may request a copy of the recording, in writing, but “shall” do so within 14 days of the date on which the recording was made. The written request is to be served on the person who was designated as the Right to Know officer for the relevant law enforcement agency, i.e, the agency that made the recording. The written request must identify with particularity the incident, date, time, and location along with the identification of each individual who was present at the time of the recording or if that identity is unknown a description of the individual. If the recording has been identified by the law enforcement agency as potential evidence in a criminal matter, the agency is to notify the respective District Attorney or Attorney General’s office. If the District Attorney or Attorney General certifies that the recording pertains to an investigation, it is grounds to deny release.
Also like the Right to Know Law, SB 976 provides for the ability of the requestor to appeal the decision of the law enforcement agency by filing a petition with the Court of Common Pleas. Any such Petition must be filed within 14 days of the denied request and include the requisite filing fee. Additionally, notice of the petition is to be served (or attempted) on each individual present at the time of the audio or video recording and, if the audio or video recording was made inside a structure, to the owner and occupant of that structure. (It is anticipated that this provision was included to protect against any claims of invasion of privacy for any individuals or properties captured in a recording.) The Petition may be summarily dismissed by the court if the initial request to the Law Enforcement Agency was untimely; the written request did not describe with sufficient particularly the incident or event; or the District Attorney/Attorney General certified that the recording pertained to an investigation.
A court may grant the Petition (in whole or in part) and order the disclosure of the recording if it determines that the petitioner established that the recording does not pertain to an investigation; would be permissible under the Right to Know law; and the public interest in disclosure outweighs the interest of the law enforcement agency.
What’s the next step? SB 976 heads to the House of Representatives, where it will be reviewed. The current legislative session ends on November 30, 2016 with only 5 scheduled voting days. Further complicating the potential passing of Senate Bill 976 in the House is the upcoming November 8, 2016 election. While there is no preclusion from voting in the lame duck period, generally, neither the House nor the Senate undertakes such votes. Therefore, if Senate Bill 976 is not passed in the House before election day, it is likely that it will die within the current House session.
Check back for additional Municipal Alerts as we will be monitoring this on a regular basis. In the interim, if you would like a copy of Senate Bill 976, passed by the Senate on October 19, 2016, please contact me at firstname.lastname@example.org.
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