Law handcuffs efforts to get police video
In last year, Pa. state troopers granted just 2 of 16 requests for recordings
Dash camera videos have captured police at their very best and their very worst. They’ve roiled communities in which unarmed suspects were gunned down by officers. They’ve also shown police acting bravely when confronted with the violence that is inevitably part of their jobs.
But in Pennsylvania, the public’s right to those recordings is so restricted as to be virtually nonexistent. That was the warning open records advocates issued last year when the Legislature voted to exempt police audio and video recordings from the state’s rightto-know law. They cautioned the new rules would all but prevent the public from accessing videos documenting officers’ actions and interactions on their beats.
According to state police records, that is largely what has happened.
In a year since the law took effect in September 2017, Pennsylvania State Police processed 16 requests for recordings made by troopers, but granted just two of them, according to documents obtained by The Morning Call through a right-to-know request.
Those seeking videos included the media, members of the public, insurance companies and law firms. The requests asked for recordings that documented troopers pulling over drunken driving suspects, responding to sometimes fatal accidents or ticketing drivers after traffic stops — among other encounters involving police.
But one by one, the answer was usually no.
Eight of the requests were denied on the grounds the recordings were potential evidence in criminal matters. Five were denied because no videos existed, and one because the record had been expunged by court order.
Of the two videos that were
released, one was sent to a Monroe County woman who was cited in September in Polk Township for allegedly driving with no headlights, no rearview mirror and obscured plates and windows.
The other involved a Mechanicsburg, Cumberland County, man who said he was involved in a commercial vehicle accident in May that troopers responded to.
“Our policy is if it’s a summary traffic [offense] and there’s no, how do you say, criminal element in it, we tend to provide those,” said William Rozier, state police’s open records officer.
While public records advocates say it is good to hear that even a limited number of videos are being released, they call it a far cry from the transparency that some states demand of their police at a time of heightened scrutiny of law enforcement.
“The reason that body and dash camera video is created in the first place is as an accountability tool,” said Melissa Melewsky, an attorney for the Pennsylvania NewsMedia Association, a newspaper trade group that opposed the changes. “If there is not public access, there is not accountability.”
The law, known as Act 22, expanded restrictions on the release of police video and eliminated the presumption that they are public records. A request for a recording must be made within 60 days of its production, and police are granted even wider latitude to deny the release of recordings they deem to be part of an investigation.
Aauthorities can keep recordings secret if they contain “potential evidence in a criminal matter” or “information pertaining to an investigation.” The law also changed the appeal process, and those denied videos must sue in court to challenge the decision — instead of turning to the Office of Open Records, an administrative body that oversees the right-toknow law, but is more userfriendly and charges no fee.
Act 22 was part of a push by lawmakers to encourage the use of body and dash cameras, which supporters say improve public trust in law enforcement, assist in investigations and preserve a record that protects officers from unwarranted allegations of misconduct. The law closed a loophole in the state’s Wiretap Act by allowing police to use body cameras in private residences — a critical step for departments interested in equipping officers.
Supporters say the law’s new restrictions recognize a basic reality: that police recordings are different from other government records, and raise legitimate safety and privacy concerns for police and crime victims.
“The provisions in Act 22 that exempt certain recordings from release to noninvolved parties are crucial for law enforcement to maintain the integrity of criminal investigations,” Ryan Tarkowski, a state police spokesman, said in a prepared statement. “Additionally, they protect the privacy of victims, witnesses and bystanders.”
Many states are grappling with just how publicly accessible police videos should be. According to the National Conference of State Legislatures, 23 states and the District of Columbia have enacted legislation governing their release.
States such as Connecticut, Nevada, North Dakota and Texas treat the videos as a public record, but provide exceptions — whether to protect police informants, minors or recordings made in “private places,” for instance. South Carolina gives law enforcement broad discretion to decide whether a recording should be released. Louisiana prohibits release of footage that violates a person’s reasonable expectation of privacy.
Act 22 was approved by lawmakers just eight days after Pennsylvania’s Supreme Court opened the door for some police videos to be accessible under the right-to-know law.
The 5-2 ruling, issued in June 2017, granted a Centre County woman’s request for recordings of a car crash in which her friend was involved. The justices rejected state police’s claims that all dashboard videos are investigative records exempt from disclosure, finding police had the burden to show on a case-by-case basis why a video shouldn’t be released.
The American Civil Liberties Union of Pennsylvania opposed Act 22, saying it failed to strike an adequate balance between transparency and privacy. Elizabeth Randol, the group’s legislative director, said the new law creates a “burdensome,” “cumbersome” and “byzantine” process that undermined the motivation behind the push to equip police with body cameras.
“This bill certainly falls short, dangerously short, of upholding the end of the bargain where police body cameras will be used as an effective tool for police accountability,” Randol said.
Bethlehem police Chief Mark DiLuzio thinks the law struck that balance.
“The public does have the right to many things, but at the proper time and place,” he said.
DiLuzio’s department is gearing up to implement body cameras next year, coming in line with a growing number of Lehigh Valley communities that include Allentown. DiLuzio said there are real reasons to keep the recordings out of the public eye, given the voyeurism engendered by social media.
“Let’s say your neighbor had a domestic with his wife and they’re in the front yard,” DiLuzio said. “Someone wants to put it out there and embarrass him and make him move out of the neighborhood. It brings up issues like that.”
DiLuzio said he recognizes there are cases that have larger public interest, but he maintained that must be weighed against the need to ensure a fair trial in the justice system.
“If it’s part of a criminal case, let it go through the court and let them decide whether to release it,” DiLuzio said.
That’s how video of one recent high-profile police-involved shooting wound up being made public. The dash-camera recording captured a gun battle last year on Route 33 in Plainfield Township in which Daniel K. Clary opened fire on two state troopers during a traffic stop, critically injuring Cpl. Seth Kelly, who nearly died.
The video played a central role in the June trial of Clary, who was sentenced to more than 53 years in prison after being convicted of attempted murder. The video was released by the Northampton County district attorney’s office after The Morning Call sued to obtain it, noting it had been introduced as evidence in court.
That marked a rare instance in which police video was published in Pennsylvania. State police records show that nine months before, WFMZ-TV in Allentown requested the recording in the immediate aftermath of the shooting, but was denied under Act 22 because it was part of a criminal investigation.
The same fate befell a request by The Morning Call for video of a December standoff on Dennis Street in Bethlehem Township that ensued after 35-year-old Justin Kephart killed his mother, then opened fire on police, holding them at bay with two assault rifles before taking his own life.
Bethlehem Township denied the request, citing a criminal investigation. (The Morning Call filed a similar request with state police, but their troopers recorded no video or audio of the incident, the agency said.)
Lehigh County District Attorney Jim Martin told reporters in August that he will not release footage showing former South Whitehall Township police officer Jonathan Roselle fatally shooting an unarmed man during an encounter near Dorney Park.
Roselle is charged with voluntary manslaughter in the July 28 death of Joseph Santos of Hasbrouck Heights, N.J. Roselle’s attorney says his client believed Santos, who was acting erratically and jumping on cars, was a threat to him and the community.
Roselle’s body camera captured the shooting, in which Santos blurted, “Don’t do it,” seconds before five gunshots sent him crumpling to the street.
The video has been displayed publicly on one occasion — in court, during a September preliminary hearing in which a district judge ruled enough evidence exists for Roselle to face trial.