PSP v. Grove: Motor Vehicle Recordings are not exempt from disclosure under Right to Know law
In Pennsylvania State Police v. Grove, the Supreme Court of Pennsylvania rules that Motor Vehicle Recordings are not exempt from the disclosure requirements of the Right to Know Act, and that they could not be withheld under the Wiretap Statute or CHRIA.
Motor Vehicle Recordings (MVRs) are recordings made by a police car’s dashboard camera, typically when the lights and siren are activated. Michelle Grove, a concerned private citizen, requested MVRs that captured investigation in the aftermath of an accident that she had observed. The record is “not clear” as to Grove’s motivation for trying to obtain the records of the accident, but she apparently became curious or concerned about the nature of the Pennsylvania State Police (PSP)’s investigation at the scene of a traffic accident where minor traffic citations were issued.
The Right to Know (RTK) Act broadly requires Commonwealth agencies to disclose various documents within their possession at the request of a citizen. 65 P.S. § 67.301. Exceptions to this broad duty of disclosure exist, of course, and two such exceptions are for “audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings,” Section 708(b)(18)(i), and “criminal investigative records” under Section 708(b)(16). PSP denied Grove’s RTK requests, citing these exceptions, as well as the Criminal History Record Information Act (CHRIA).
Majority by Dougherty: Whether an MVR is a criminal investigative record is a case-by-case determination
Justice Kevin Dougherty, writing for the 5-2 majority, holds that MVRs are public records and therefore generally subject to disclosure under RTK requests. Exceptions should be construed narrowly to effectuate the general intent of the statute, “which is to empower citizens by affording them access to information concerning the activities of their government.” (quoting SWB Yankees LLC v. Wintermantel, 615 Pa. 640 (2012)). Any exception, including the exception for investigative materials, must be determined on a case-by-case basis.
The burden is on the Commonwealth agency to justify non-disclosure by a preponderance of the evidence. PSP’s position that MVRs are “generally exempt” would impermissibly shift this burden to the requestor to show that PSP would not be burdened. The legislature’s intent to keep RTK a broad power is underscored by the legislature’s recent expansions of RTK, and PSP, like other Commonwealth agencies, must comply.
In the present case, “The video depiction presents nothing more than what a bystander would observe.” The videos did not reveal the accident as it unfolded, and “the fact and nature of the Vehicle Code violations could not have been garnered from the video-only aspect of the MVRs.” Indeed, PSP conceded that “the only potentially investigative information consisted of the verbal statements captured on Trooper Thomas’s MVR,” which were ordered redacted by the Commonwealth Court, which neither party argued to overturn at SCOPA.
But PSP had one more argument up their sleeve in the case—RTK does not require an agency to create a “new record.” In other words, if in order to comply with an RTK request, an agency would have to redact documents so heavily as to actually compile an entirely new record, the agency can deny the request on the basis that it requires them to create something rather than disclose a document they already have. The majority wastes no time rejecting this argument in this case. All that was required here was the redaction of some audio from the MVRs—a task easily accomplished without great expenditures of labor on behalf of PSP.
The Court goes on to hold that the Wiretap Statute is not violated by the capture of oral conversations in which no privacy interest reasonably existed. The conversations were made with no expectation of privacy to investigating officers at the scene of an accident. The conversations were in public, overheard by other bystanders (including Grove), and any sensitive portions had already been agreed to be redacted from the audio. Therefore, the Wiretap Statute is not violated.
Concurrence by Wecht: Wiretap Act jurisprudence should be re-examined
Justice Wecht concurs in the result, but writes separately to argue that the Court should re-examine our interpretation of the Wiretap Statute in a future case. The Court’s jurisprudence in the past has impermissibly collapsed statutory and constitutional analysis into a singular consideration. An individual’s “privacy interest” in the content of the conversation in question, in other words, should not be relevant in determining whether capturing someone’s conversation was prohibited by the Wiretap Statute. Nonetheless, the precedents are good law at the moment, and were correctly applied to this case.
Dissent by Saylor: the exception in question here is for anything “related to” a criminal investigation
Chief Justice Saylor dissents, joined by Justice Mundy, writing that the term “related to” criminal investigation in the RTK Act is broader than the majority allows. The balance between the need for secrecy and confidentiality in criminal investigations and the public’s right of access is a delicate consideration. “[T]he appropriate balance among such important interests is a matter most closely suited to determination by the political branch, which, for the present at least, has designed a broad criminal-investigations exception to public access extending to MVRs.”
Dissent by Mundy: Police investigations should be exempt from disclosure
Justice Mundy reiterates Chief Justice Saylor’s argument that the term “related to” should be read more broadly, and that she would be satisfied with a showing that the video was recorded during an investigation, regardless of the content it captured. Her view would hold something closer to a per se rule that, once on the scene of an investigation, what is capture by MVRs is within a criminal investigation file exempt from disclosure. “Having accepted that Troopers Thomas and Vanorden engaged in a criminal investigation upon arriving at the scene of the accident, the MVRs’ record of the steps the officers took, the persons they spoke with, and the state of the scene they encountered became a record related to that investigation.”
Conclusion: Implications for body-cams, cell phones, the First Amendment
This case strikes me as the most important of the term. Yes, other cases have received more hype, but Grove will be remembered and cited to obtain access to surveillance video, MVRs, and most crucially, body-camera footage from officers. These videos have already had a profound impact on the public’s understanding of police work, and have shown horrifying images in cases such as the Philando Castile slaying by an officer in Minnesota. RTK requests will proliferate, and as this case makes clear, the requestor need not have a personal or obvious interest in the matter, they need only be a concerned citizen.
This case should be read in conjunction with the 3rd Circuit case, Fields v. City of Philadelphia, which held that citizens have a First Amendment right to record police actions, even when they don’t yet know if they’re going to use the video or post it anywhere. As technology changes, the citizen’s right to access the substantial recordings made of their own daily activities by police and other agencies is leading to growing concern that our privacy is under assault. In this case, as well as in Fields, the courts are ruling that the people have the power to turn government surveillance power into a government liability. They more they record, the more we potentially have access to.