Joy is an attorney in Obermayer’s Transparency Department. She represents media companies, contractors, developers, independent journalists, corporations, public and private partnership participants, and citizens, helping them either access public information that is...Read More by Author
Pennsylvania Body Cams: Strong in Theory, Weak in Practice
Reprinted with permission from the October 20, 2021 issue of The Legal Intelligencer. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
George Floyd’s death once again turned the national spotlight on the need for law enforcement reforms, training, and accountability. The public learned about Floyd’s death because Darnella Frazier, a teenager on a public street, had the presence of mind and courage to whip out her cellphone.
Frazier’s actions revealed two facts. First, that body-cam and dash-cam footage is essential to transparent policing. Second, that states’ attempt to provide footage through legislation is largely inadequate. The goal of body camera legislation is to ensure that the public has the ability to see police/citizen encounters from a close perspective. But in most states, unless you were there yourself, filming on a public street—you won’t see what Frazier saw, much less what the officers saw.
Prior to joining a national transparency law practice, I handled hundreds of appeals at the Pennsylvania Office of Open Records, a neutral and independent ombudsman that decides agency public record disputes in Pennsylvania. Three years before Floyd died, Pennsylvania enacted Act 22, a law that provides a mechanism to access body-cam and dash-cam footage. That new law unfortunately removed body camera footage from the Office of Open Record’s jurisdiction, forcing citizens who wish to appeal a denial to go to court instead. An agency public records appeal is free to citizens, but an appeal for body-cam footage costs at least $300, plus attorney fees. Fee Assessment based on Philadelphia filing fees, available at //www.courts.phila.gov/pdf/prothyfees.pdf (last accessed Oct. 14).
Because Pennsylvania law allows the police to withhold footage when the footage contains potential evidence in a criminal matter, or information pertaining to an investigation, denials are frequent. Almost every interaction undertaken by law enforcement can fit under that broad description.
In Floyd’s case, the police were responding to and investigating a potential crime. No member of the public could access law enforcement footage from that event, had it occurred in Pennsylvania. There is nothing in the Pennsylvania law that sets out an exemption for an act that occurs on a public street, for example, as opposed to a private residence. There is nothing in the law that provides clear guidance to carve out exemptions of any kind—instead, the law places an inordinate amount of discretion in law enforcement to decide whether to withhold. The requester’s recourse is a judicial appeal, but the fact that Pennsylvania has almost no case law interpreting Act 22 four years past its effective date proves that this law has created almost an insurmountable barrier for individual citizens, who are most likely to be the requesters.
Pennsylvania could strengthen the law in several common sense ways. Some amendments to consider:
- There should be a strong rebuttable presumption that any act captured on a public street or in another public venue should be accessible by the public. This is the same logic we use for the Sunshine Act, where a member of the public can record a public meeting. If the public can be present while the event is happening, then the recording of that same event should also be available. No redaction or face blurring should be necessary, as a person on a public street has no reasonable expectation of privacy.
- There should be a fee cap for video production and redaction. As a practitioner, I have seen fees for footage production and redaction reach into the thousands, with agencies claiming that they have no alternate vendors for price quotes. I’ve even heard agencies brag about how the easiest way to “get rid” of a requester is to simply assess fees to the extent provided by law. This law places the discretion in the law enforcement agency to establish “reasonable fees” for disclosure. Again, the only way for the requester to challenge the “reasonableness” of the assessed fee is to hire a lawyer and pay a fee to appeal.
- Pennsylvania needs a mechanism to “age out” the investigative exemption. For example, Colorado’s new body-cam footage law, enacted by House Bill 21-1250 and Senate Bill 20-217, requires the release of unedited footage within 21 days of request. If the video “would substantially interfere with or jeopardize an active or ongoing investigation,” the disclosure can be delayed for 45 days, in which case the prosecutor must explain in writing why the delay is justified and that statement must be released to the public when the video is released. In Pennsylvania, there is no mechanism that “ages out” the investigative exemption, instead, if a court finds that the material is investigative—it is inaccessible forever.
Transparency is best achieved when the public can access law enforcement footage directly from the source, instead of relying on citizen bystanders to promote accountability. It is very likely that Act 22 would have made policing footage more accessible, had it been passed in the aftermath of Floyd’s death instead of three years prior. While the intention to provide the public with footage is a good thing, only by amending the current law in Pennsylvania can we ensure that intention becomes reality.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.