Senate Bill 560 was signed into law on July 7, 2017. As previously reported, the new law excludes the interception of certain communications to law enforcement officers from the provisions of the Pennsylvania Wiretap Act, which generally prohibits the interception of communication without the consent of the communicator. So long as the communication does not occur within the individual’s residence, and provided that the law enforcement officer, at the time of the interception of the communication, is a) in uniform or otherwise clearly identifiable as a law enforcement officer, b) is in close proximity to the individual’s oral communication, c) is using a Pennsylvania State Police-approved mechanism or device to intercept the communication, and d) informs, as soon as reasonably practicable, the individual that their communication was intercepted, any communication intercepted would not violate the Wiretap Act.
Just as important, the law removes all video or audio recordings by law enforcement officers from the purview of the Pennsylvania Right to Know law. Instead, when a request is made for an audio or video recording, the requester must comply with the following: 1) make a written request to the open-records officer for the law enforcement agency within sixty (60) days of date the recording was made; 2) the request must specify with particularity the incident or event (including date, time, and location of the incident or event) subject of the recording; 3) the request must contain a statement describing the requester’s relationship to the event that is the subject of the recording; and 4) if the request concerns an incident or event occurring with a residence, the request must identify each individual present at the time of the recording, unless it is not reasonably ascertainable. The law enforcement agency must respond to the request within thirty (30) days of receiving the same, and a request is deemed denied if the recording is not provided within that timeframe, or an extension is not agreed to by the agency and the requester. Lastly, the law permits law enforcement agencies to consult, and even enter into agreements, with the Pennsylvania Attorney General and the respective District Attorney’s Office regarding recordings containing potential evidence in a criminal matter, and whether such recordings must be provided to the requester.
The law will become effective in early September of 2017, sixty (60) days from July 7. Does this mean law enforcement agencies may simply start to use body cameras? Not so fast. The law requires any municipal law enforcement agency or sheriff who makes audio and/or video recordings to establish written policies, available for the public, concerning officer training, when the recordings will be in operation, how to use, maintain, and store the recording and equipment, storage of the recordings, record retention for such storing, using facial recognition software, supervision, and disciplinary actions for violating the policy. It is imperative for law enforcement agencies to consult with their respective solicitors for the preparation, and adoption of policies that are compliant with the requirements of the law.
For more information, contact our Municipal Group.