Discovery Right-to-Know Law Police Dashcam Criminal Investigation
Pa. State Police v. Grove, PICS Case No. 17-1010 (Pa. June 20, 2017) Dougherty, J.; Wecht and Todd, J.J., concurring; Saylor, C.J. and Mundy J., concurring and dissenting (57 pages).
The lower court properly found that motor vehicle recordings are not exempt from disclosure. The court affirmed in part, reversed in part and remanded.
In 2014, Michelle Grove made a request to the Pennsylvania State Police (PSP) pursuant to Section 301 of the Right to Know Law for a copy of a police report and any audio/video recordings taken by officers at the scene of a two-car accident in Potter Township. Troopers who responded to the accident scene had generated two motor vehicle recordings PSP gave Grove certain information, but denied her request for the recordings, asserting that they were exempt from any public disclosure as a criminal investigation record under Section 708(b)(16) of the RTKL, an investigative information under Section 9106(C)(4) of the Criminal History Record Information Act (CHRIA) and records pertaining to audio recording, telephone or radio transmission received by dispatch personnel under Section 708(b)(18) of the RTKL. On appeal, the Commonwealth Court found that the recordings generally are public records subject to disclosure and thus directed PSP to provide Grove with the recordings, but remanded to the Office of Open Records with instructions for redaction of the audio portion of the recordings. The Supreme Court granted discretionary review to consider whether the video components of recordings created by PSP were exempt from disclosure to the public as criminal investigation records under the RTKL or CHRIA and whether the records implicated provisions of the Wiretapping and Electronic Surveillance Act (Wiretap Act). There was no dispute that the recordings were public records of an agency as defined in the RTKL and thus subject to public disclosure unless some exemption applied. PSP acknowledged that it anticipated using recordings in various situations including civil, criminal, quasi-criminal and administrative enforcement proceedings. PSP acknowledged that recordings will be retained when a person captured on such a recording notifies PSP of his intent to use it in civil proceedings, which point supported a conclusion that the recordings do not always "relate to" or "result in "criminal investigations" such that they should be per se exempt from disclosure under the RTKL, the court reasoned. Thus, the lower court properly found that MVRs are not exempt from disclosure as a general rule. Recordings will likely also capture criminal investigations and therefore held that the issue of whether a recording contains criminal investigative material must be determined on a case-by-case basis, the court acknowledged. The court went on to consider the specific recordings at issue, which depicted the troopers responding to the crash scene and recorded what any bystander would have observed. PSP failed to explain how the video portion of the recordings captured any criminal investigation. Thus, the court affirmed insofar as the underlying order compelled production of the recordings' video aspects. Moreover, since the lower court ordered that any investigative information on the recordings be redacted, the lower court did not err in finding that the CHRI did not preclude disclosure in this case. Finally, the court found it clear that none of the individuals at the scene could have had a reasonable expectation of privacy or any justifiable expectation that their statements and images were not being captured on the recordings or cellphones. Thus, disclosure of the recordings pursuant to the RTKL did not violate the Wiretap Act. Justice Wecht concurred and questioned the court's continued adherence to the proposition that, for purposes of the Wiretap Act, one cannot have an expectation of noninterception absent a finding of a reasonable expectation of privacy.
Justice Mundy diverged with the majority's analysis on whether the subject recordings were record relating to or resulting in a criminal investigation under the RTKL and the CHRI.