Expanded Use of Police Body Cameras by Michelle R. Calvert, Esquire

On July 7, 2017 Pennsylvania Act 22 of 2017 was signed into law. This law, which became effective on September 5, 2017, changes the treatment of police body camera recordings under Pennsylvania’s Wiretap Act. Whereas prior to the law’s enactment, police were not permitted to make such recordings inside citizens’ homes and were only permitted to make them elsewhere if they announced that the recording was being made, Act 22 eliminates these requirements under most circumstances. The new law provides that police may record body camera footage, including inside a citizen’s home, without announcing that such a recording is being made, if (a) it is made in the presence of a law enforcement officer, (b) the officer is on official duty, (c) the officer is in uniform or otherwise clearly identified as a law enforcement officer and (d) the officer is using an approved recording device to intercept communications in the course of his or her official duties.

The value of police body camera recordings lies in their use as evidence in court. It is therefore crucial that the recordings be accurate and of good quality. In order to ensure the integrity of recordings made on body cameras worn by law enforcement officers, the new law obligates the Pennsylvania State Police to establish and publish standards for approved recording equipment and storage of the recordings made by such equipment. If the recordings do not comply with these standards, they will remain subject to the prior Wiretap Act rules. The law also requires law enforcement agencies who use audio and/or video recordings to establish, maintain and enforce written policies relating to those recordings. These policies will be required to be made available to the public for inspection.

Act 22 also establishes a different process to be followed by citizens seeking copies of police body camera footage. These recordings will no longer be subject to the Right to Know Law. Under the new law, although requests for the recordings will still be made to a police agency’s Open Records Officer, there are stricter requirements as to the timing and content of the request, as well as new standards for when the request may be denied. Specifically, requests for body camera recordings may be denied if the recordings contain potential evidence in a criminal matter or information pertaining to an investigation or a matter in which a criminal charge has been filed. This standard will likely result in most requests for body camera footage being denied and as a result, have already drawn criticism from the ACLU and similar organizations. The law also allows the withholding of confidential information or victim information contained in a body camera recording, as those terms are defined in Act 22. Finally, while under the Right to Know Law appeals of denied requests were brought to Pennsylvania’s Office of Open Records, such appeals must now be filed with the County Court of Common Pleas.

Act 22’s revised standards for the use and disclosure of police body camera footage gives greater leeway to police agencies in carrying out their official duties. As a result, it is likely that the use of police body cameras will become more widespread in Pennsylvania.

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