HOUSE AMENDED
PRIOR PRINTER'S NOS. 595, 614, 821, 922
PRINTER'S NO. 936
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
560
Session of
2017
INTRODUCED BY GREENLEAF, BREWSTER, BROOKS, RESCHENTHALER,
VULAKOVICH, SCHWANK, COSTA, MENSCH, McGARRIGLE, HAYWOOD,
RAFFERTY, BROWNE AND WARD, MARCH 27, 2017
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 12, 2017
AN ACT
Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in wiretapping and electronic surveillance, further
providing for definitions, for exceptions to prohibition of
interception and disclosure of communications and, for
exceptions to prohibitions in possession, sale, distribution,
manufacture or advertisement of electronic, mechanical or
other devices AND FOR EXPIRATION OF CHAPTER; and providing
for recordings by law enforcement officers.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definition of "oral communication" in section
5702 of Title 18 of the Pennsylvania Consolidated Statutes is
amended to read:
§ 5702. Definitions.
As used in this chapter, the following words and phrases
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
* * *
"Oral communication." Any oral communication uttered by a
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person possessing an expectation that such communication is not
subject to interception under circumstances justifying such
expectation. The term does not include [any electronic
communication.] the following:
(1) An electronic communication.
(2) A communication made in the presence of a law
enforcement officer on official duty who is in uniform or
otherwise clearly identifiable as a law enforcement officer ,
sheriff or deputy sheriff and the law enforcement officer ,
sheriff or deputy sheriff is using an electronic, mechanical
or other device which has been approved under section 5706(b)
(4) (relating to exceptions to prohibitions in possession,
sale, distribution, manufacture or advertisement of
electronic, mechanical or other devices) for the purpose of
recording the communication.
(2) A COMMUNICATION MADE IN THE PRESENCE OF A LAW
ENFORCEMENT OFFICER ON OFFICIAL DUTY WHO IS IN UNIFORM OR
OTHERWISE CLEARLY IDENTIFIABLE AS A LAW ENFORCEMENT OFFICER
AND WHO IS USING AN ELECTRONIC, MECHANICAL OR OTHER DEVICE
WHICH HAS BEEN APPROVED UNDER SECTION 5706(B)(4) (RELATING TO
EXCEPTIONS TO PROHIBITIONS IN POSSESSION, SALE, DISTRIBUTION,
MANUFACTURE OR ADVERTISEMENT OF ELECTRONIC, MECHANICAL OR
OTHER DEVICES) TO INTERCEPT THE COMMUNICATION IN THE COURSE
OF LAW ENFORCEMENT DUTIES. AS USED IN THIS PARAGRAPH ONLY,
"LAW ENFORCEMENT OFFICER" MEANS A MEMBER OF THE PENNSYLVANIA
STATE POLICE, AN INDIVIDUAL EMPLOYED AS A POLICE OFFICER WHO
HOLDS A CURRENT CERTIFICATE UNDER 53 PA.C.S. CH. 21 SUBCH. D
(RELATING TO MUNICIPAL POLICE EDUCATION AND TRAINING), A
SHERIFF OR A DEPUTY SHERIFF.
* * *
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Section 2. Sections 5704(13), (14) and (16) and, 5706(b) AND
5781 of Title 18 are amended to read:
§ 5704. Exceptions to prohibition of interception and
disclosure of communications.
It shall not be unlawful and no prior court approval shall be
required under this chapter for:
* * *
(13) An investigative officer, a law enforcement officer
or employees of the Department of Corrections for State
correctional facilities to intercept, record, monitor or
divulge any [telephone calls] oral communication, electronic
communication or wire communication from or to an inmate in a
facility under the following conditions:
(i) The Department of Corrections shall adhere to
the following procedures and restrictions when
intercepting, recording, monitoring or divulging any
[telephone calls] oral communication, electronic
communication or wire communication from or to an inmate
in a State correctional facility as provided for by this
paragraph:
(A) Before the implementation of this paragraph,
all inmates of the facility shall be notified in
writing that, as of the effective date of this
paragraph, their [telephone conversations] oral
communication, electronic communication or wire
communication may be intercepted, recorded, monitored
or divulged.
(B) Unless otherwise provided for in this
paragraph, after intercepting or recording [a
telephone conversation] an oral communication,
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electronic communication or wire communication, only
the superintendent, warden or a designee of the
superintendent or warden or other chief
administrative official or his or her designee, or
law enforcement officers shall have access to that
recording.
(C) The contents of an intercepted and recorded
[telephone conversation] oral communication,
electronic communication or wire communication shall
be divulged only as is necessary to safeguard the
orderly operation of the facility, in response to a
court order or in the prosecution or investigation of
any crime.
(ii) So as to safeguard the attorney-client
privilege, the Department of Corrections shall not
intercept, record, monitor or divulge [any conversation]
an oral communication, electronic communication or wire
communication between an inmate and an attorney.
(iii) [Persons who are calling in to a facility to
speak to an inmate shall be notified that the call may be
recorded or monitored.] Persons who are engaging in an
oral communication, electronic communication or wire
communication with an inmate shall be notified that the
communication may be recorded or monitored. Notice may be
provided by any means reasonably designed to inform the
non-inmate party of the recording or monitoring.
(iv) The Department of Corrections shall promulgate
guidelines to implement the provisions of this paragraph
for State correctional facilities.
(14) An investigative officer, a law enforcement officer
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or employees of a county correctional facility to intercept,
record, monitor or divulge [any telephone calls] an oral
communication, electronic communication or wire communication
from or to an inmate in a facility under the following
conditions:
(i) The county correctional facility shall adhere to
the following procedures and restrictions when
intercepting, recording, monitoring or divulging [any
telephone calls] an oral communication, electronic
communication or wire communication from or to an inmate
in a county correctional facility as provided for by this
paragraph:
(A) Before the implementation of this paragraph,
all inmates of the facility shall be notified in
writing that, as of the effective date of this
paragraph, their [telephone conversations] oral
communications, electronic communications or wire
communications may be intercepted, recorded,
monitored or divulged.
(B) Unless otherwise provided for in this
paragraph, after intercepting or recording [a
telephone conversation] an oral communication,
electronic communication or wire communication, only
the superintendent, warden or a designee of the
superintendent or warden or other chief
administrative official or his or her designee, or
law enforcement officers shall have access to that
recording.
(C) The contents of an intercepted and recorded
[telephone conversation] oral communication,
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electronic communication or wire communication shall
be divulged only as is necessary to safeguard the
orderly operation of the facility, in response to a
court order or in the prosecution or investigation of
any crime.
(ii) So as to safeguard the attorney-client
privilege, the county correctional facility shall not
intercept, record, monitor or divulge [any conversation]
an oral communication, electronic communication or wire
communication between an inmate and an attorney.
(iii) [Persons who are calling into a facility to
speak to an inmate shall be notified that the call may be
recorded or monitored.] Persons who are engaging in an
oral communication, electronic communication or wire
communication with an inmate shall be notified that the
communication may be recorded or monitored. Notice may be
provided by any means reasonably designed to inform the
non-inmate party of the recording or monitoring.
(iv) The superintendent, warden or a designee of the
superintendent or warden or other chief administrative
official of the county correctional system shall
promulgate guidelines to implement the provisions of this
paragraph for county correctional facilities.
* * *
[(16) A law enforcement officer, whether or not
certified under section 5724 (relating to training), acting
in the performance of his official duties to intercept and
record an oral communication between individuals in
accordance with the following:
(i) At the time of the interception, the oral
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communication does not occur inside the residence of any
of the individuals.
(ii) At the time of the interception, the law
enforcement officer:
(A) is in uniform or otherwise clearly
identifiable as a law enforcement officer;
(B) is in close proximity to the individuals'
oral communication;
(C) is using an electronic, mechanical or other
device which has been approved under section 5706(b)
(4) (relating to exceptions to prohibitions in
possession, sale, distribution, manufacture or
advertisement of electronic, mechanical or other
devices) to intercept the oral communication; and
(D) informs, as soon as reasonably practicable,
the individuals identifiably present that he has
intercepted and recorded the oral communication.
(iii) As used in this paragraph, the term "law
enforcement officer" means a member of the Pennsylvania
State Police or an individual employed as a police
officer who holds a current certificate under 53 Pa.C.S.
Ch. 21 Subch. D (relating to municipal police education
and training).]
* * *
§ 5706. Exceptions to prohibitions in possession, sale,
distribution, manufacture or advertisement of
electronic, mechanical or other devices.
* * *
(b) Responsibility.--
(1) Except as provided under paragraph (2), the Attorney
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General and the district attorney or their designees so
designated in writing shall have the sole responsibility to
buy, possess and loan any electronic, mechanical or other
device which is to be used by investigative or law
enforcement officers for purposes of interception as
authorized under section 5704(2), (5) and (12) (relating to
exceptions to prohibition of interception and disclosure of
communications), 5712 (relating to issuance of order and
effect), 5713 (relating to emergency situations) or 5713.1
(relating to emergency hostage and barricade situations).
(2) The division or bureau or section of the
Pennsylvania State Police responsible for conducting the
training in the technical aspects of wiretapping and
electronic surveillance as required by section 5724 (relating
to training) may buy and possess any electronic, mechanical
or other device which is to be used by investigative or law
enforcement officers for purposes of interception as
authorized under section 5704(2), (5) and (12), 5712, 5713 or
5713.1 for the purpose of training. However, any electronic,
mechanical or other device bought or possessed under this
provision may be loaned to or used by investigative or law
enforcement officers for purposes of interception as
authorized under section 5704(2), (5) and (12), 5712, 5713 or
5713.1 only upon written approval by the Attorney General or
a deputy attorney general designated in writing by the
Attorney General or the district attorney or an assistant
district attorney designated in writing by the district
attorney of the county wherein the suspected criminal
activity has been, is or is about to occur.
(3) With the permission of the Attorney General or a
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district attorney who has designated any supervising law
enforcement officer for purposes of interceptions as
authorized under section 5713.1, the law enforcement agency
which employs the supervising law enforcement officer may
buy, possess, loan or borrow any electronic, mechanical or
other device which is to be used by investigative or law
enforcement officers at the direction of the supervising law
enforcement officer solely for the purpose of interception as
authorized under sections 5704(12) and 5713.1.
(4) The Pennsylvania State Police shall annually
establish equipment standards for any electronic, mechanical
or other device which is to be used by law enforcement
officers for purposes of [interception as authorized under
section 5704(16).] recording a communication, other than an
oral communication, made in the presence of the law
enforcement officer on official duty who is in uniform or
otherwise clearly identifiable as a law enforcement officer.
R ECORDING A COMMUNICATION UNDER CIRCUMSTANCES WITHIN
PARAGRAPH (2) OF THE DEFINITION OF "ORAL COMMUNICATION" IN
SECTION 5702 (RELATING TO DEFINITIONS). The equipment
standards shall be published annually in the Pennsylvania
Bulletin.
(5) The Pennsylvania State Police shall annually
establish and publish standards in the Pennsylvania Bulletin
for the secure onsite and offsite storage of an audio
recording or video recording made in accordance with
paragraph (4) OR ANY ACCOMPANYING VIDEO RECORDING . The
standards shall comply with the Federal Bureau of
Investigation's Criminal Justice Information Services (CJIS)
Security Policy.
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(6) A vendor to law enforcement agencies which stores
data related to audio recordings and video recordings shall,
at a minimum, comply with the standards set forth by the
Pennsylvania State Police under paragraphs (4) and (5). Law
enforcement agencies under contract with a vendor for the
storage of data before the effective date of this paragraph
shall comply with paragraphs (4) and (5) and this paragraph
upon expiration or renewal of the contract.
§ 5781. EXPIRATION OF CHAPTER.
THIS CHAPTER EXPIRES DECEMBER 31, [2018] 2023, UNLESS
EXTENDED BY STATUTE.
Section 3. Title 42 is amended by adding a chapter to read:
CHAPTER 67A
RECORDINGS BY LAW ENFORCEMENT OFFICERS
Sec.
67A01. Definitions.
67A02. Scope of chapter.
67A03. Requests for law enforcement audio recordings or video
recordings.
67A04. Law enforcement review .
67A05. Procedure .
67A06. Petition for approval.
67A07. Audio recording or video recording policies.
67A08. Construction.
67A09. Applicability.
§ 67A01. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Confidential information." Any of the following:
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(1) The identity of a confidential source.
(2) The identity of a suspect or witness to whom
confidentiality has been assured .
(3) Information made confidential by law or court order.
"Information pertaining to an investigation." An audio
recording or video recording which contains any of the
following:
(1) Complaints or depictions of criminal conduct,
including all actions or statements made before or after the
criminal conduct that are part of or relate to the same
incident or occurrence.
(2) Upon disclosure, information that would:
(i) reveal the institution, progress or result of a
criminal investigation;
(ii) deprive an individual of the right to a fair
trial or an impartial adjudication;
(iii) impair the ability of the Attorney General, a
district attorney or a law enforcement officer to locate
a defendant or codefendant;
(iv) hinder the ability of the Attorney General, a
district attorney or a law enforcement officer to secure
an arrest, prosecution or conviction; or
(v) endanger the life or physical safety of an
individual.
(3) UPON DISCLOSURE, INFORMATION THAT WOULD:
(I) REVEAL THE INSTITUTION, PROGRESS OR RESULT OF AN
AGENCY INVESTIGATION.
(II) DEPRIVE A PERSON OF THE RIGHT TO AN IMPARTIAL
ADMINISTRATIVE ADJUDICATION.
(III) CONSTITUTE AN UNWARRANTED INVASION OF PRIVACY.
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(IV) HINDER AN AGENCY'S ABILITY TO SECURE AN
ADMINISTRATIVE OR CIVIL SANCTION.
(V) ENDANGER THE LIFE OR PHYSICAL SAFETY OF AN
INDIVIDUAL.
"Law enforcement agency." The Office of Attorney General, a
district attorney's office or an agency that employs a law
enforcement officer.
"Law enforcement officer." An officer of the United States,
the Commonwealth or a political subdivision thereof, another
state or political subdivision thereof or who is empowered by
law to conduct investigations of or to make arrests for offenses
enumerated in this chapter or an equivalent crime in another
jurisdiction, a sheriff or deputy sheriff and any attorney
authorized by law to prosecute or participate in the prosecution
of the offense.
"Victim." An individual who was subjected to an act that was
committed by another individual, including a juvenile, which
constitutes any of the following:
(1) An offense committed under any of the following:
(i) The act of April 14, 1972 (P.L.233, No.64),
known as The Controlled Substance, Drug, Device and
Cosmetic Act.
(ii) 18 Pa.C.S. (relating to crimes and offenses).
(iii) 30 Pa.C.S. § 5502 (relating to operating
watercraft under influence of alcohol or controlled
substance).
(iv) 30 Pa.C.S. § 5502.1 (relating to homicide by
watercraft while operating under influence).
(v) 75 Pa.C.S. § 3732 (relating to homicide by
vehicle).
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(vi) 75 Pa.C.S. § 3735 (relating to homicide by
vehicle while driving under influence).
(vii) 75 Pa.C.S. § 3735.1 (relating to aggravated
assault by vehicle while driving under the influence).
(viii) 75 Pa.C.S. § 3742 (relating to accidents
involving death or personal injury).
(ix) 75 Pa.C.S. Ch. 38 (relating to driving after
imbibing alcohol or utilizing drugs).
(x) Any other Federal or State law.
(2) An offense similar to an offense listed under
paragraph (1) committed outside of this Commonwealth.
(3) An offense which would constitute grounds for the
issuance of relief under Chapter 62A (relating to protection
of victims of sexual violence or intimidation) or 23 Pa.C.S.
Ch. 61 (relating to protection from abuse).
(4) An offense against a resident of this Commonwealth
which is an act of international terrorism.
"Victim information." Information that would disclose the
identity or jeopardize the safety of a victim.
§ 67A02. Scope of chapter.
The act of February 14, 2008 (P.L.6, No.3), known as the
Right-to-Know Law, shall not apply to an audio recording or a
video recording by a law enforcement officer under this chapter,
including communications between a law enforcement agency and
the Attorney General or the district attorney with jurisdiction.
An audio recording or video recording made inside of a facility
owned or operated by a law enforcement agency shall not be
subject to public requests.
(A) EXEMPTION.--THE PROVISIONS OF THIS CHAPTER, AND NOT THE
ACT OF FEBRUARY 14, 2008 (P.L.6, NO.3), KNOWN AS THE RIGHT-TO-
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KNOW LAW, SHALL APPLY TO ANY AUDIO RECORDING OR VIDEO RECORDING
MADE BY A LAW ENFORCEMENT AGENCY.
(B) LIMITATION.--NOTHING IN THIS CHAPTER NOR THE RIGHT-TO-
KNOW LAW SHALL ESTABLISH A RIGHT TO PRODUCTION OF AN AUDIO
RECORDING OR VIDEO RECORDING MADE INSIDE A FACILITY OWNED OR
OPERATED BY A LAW ENFORCEMENT AGENCY OR TO ANY COMMUNICATIONS
BETWEEN OR WITHIN LAW ENFORCEMENT AGENCIES CONCERNING AN AUDIO
OR VIDEO RECORDING.
§ 67A03. Requests for law enforcement audio recordings or video
recordings.
The following shall apply:
(1) An individual who requests an audio recording or
video recording made by a law enforcement agency shall,
within 20 60 days of the date when the audio recording or
video recording was made, serve a written request to the
individual who is designated as the open-records officer for
the law enforcement agency under section 502 of the act of
February 14, 2008 (P.L.6, No.3), known as the Right-to-Know
Law. Service is effective upon receipt of the written request
by the open-records officer FROM PERSONAL DELIVERY OR
CERTIFIED MAIL WITH PROOF OF SERVICE .
(2) The request under paragraph (1) shall specify with
particularity the incident or event that is the subject of
the audio recording or video recording, including the date,
time and location of the incident or event.
(3) The request shall include a statement describing the
requester's relationship to the incident or event that is the
subject of the audio or video recording.
(4) If the incident or event that is the subject of the
audio recording or video recording occurred inside a
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residence, the request shall identify each individual who was
present at the time of the audio recording or video recording
UNLESS NOT KNOWN AND NOT REASONABLY ASCERTAINABLE .
§ 67A04. Law enforcement review .
(a) Determination.--Except as provided in this section, if a
law enforcement agency determines that an audio recording or
video recording contains potential evidence in a criminal
matter, information pertaining to an investigation or a matter
in which a criminal charge has been filed, confidential
information or victim information and the reasonable redaction
of the audio or video recording would not safeguard potential
evidence, information pertaining to an investigation,
confidential information or victim information , the law
enforcement agency shall deny the determination REQUEST in
writing. The written denial shall state that no reasonable
redaction of the audio recording or video recording will NOT
safeguard potential evidence, information pertaining to an
investigation, confidential information or victim information.
If an agreement under subsection (b) is in effect between the
law enforcement agency and the Attorney General or the district
attorney with jurisdiction, the law enforcement agency shall
issue the written denial to the requester.
(b) Agreement.--A law enforcement agency may enter into a
memorandum of understanding with the Attorney General or the
district attorney with jurisdiction to ensure consultation
regarding the reviewing of audio recordings or video recordings
in order to make a determination or to DISTRICT ATTORNEY WITH
JURISDICTION TO:
(1) ENSURE CONSULTATION REGARDING THE REVIEWING OF AUDIO
RECORDINGS OR VIDEO RECORDINGS IN ORDER TO MAKE A
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DETERMINATION; OR
(2) require the Attorney General or district attorney
with jurisdiction to issue a denial permitted under
subsection (a).
§ 67A05. Procedure .
(a) Disclosure.--A law enforcement agency that receives a
request under section 67A03 (relating to requests for law
enforcement audio recordings or video recordings) for an audio
recording or video recording shall provide the audio recording
or video recording or identify in writing the basis for denying
the request within 30 days of receiving the request, unless the
requester and law enforcement agency agree to a longer time
period. If an agreement under subsection (b) SECTION 67A04(B)(2)
(RELATING TO LAW ENFORCEMENT REVIEW) is in effect between the
law enforcement agency and the Attorney General or district
attorney with jurisdiction, then an agreement to a longer time
period must be between the requester and the Attorney General or
district attorney with jurisdiction.
(b) Denials BY OPERATION OF LAW .--The request under section
67A03 shall be deemed DENIED BY OPERATION OF LAW denied if the
law enforcement agency does not provide the audio recording or
video recording to the requester or explain why the request is
denied within the time period specified or agreed to under
subsection (a).
(c) Preservation.--A law enforcement agency that has
received a request for an audio recording or video recording
shall preserve the unaltered audio recording or video recording
that has been requested for no less than the time periods
provided in this chapter for service of and responses to written
requests for the production of the audio recording or video
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recording AND ANY PERIOD WITHIN WHICH A PETITION FOR JUDICIAL
REVIEW IS ALLOWABLE OR PENDING .
(d) Fees.--A law enforcement agency may establish reasonable
fees relating to the costs incurred to disclose audio recordings
or video recordings. The fees shall be paid by the requesting
party at the time of disclosure of the audio recording or video
recording.
(e) Construction.--Nothing in this section shall be
construed to prohibit a law enforcement agency from redacting an
audio recording or video recording in order to protect potential
evidence in a criminal matter, information pertaining to an
investigation, confidential information or victim information.
§ 67A06. Petition for approval JUDICIAL REVIEW .
(a) Petition.--
(1) If a request under section 67A03 (relating to
requests for law enforcement audio recordings or video
recordings) is denied, the requester may file a petition for
judicial review in the court of common pleas with
jurisdiction within 30 days of the date of denial.
(2) The respondent to a petition filed under this
section shall be the entity that denied the request for the
audio recording or video recording under section 67A05(a)
(relating to procedure ) unless the request is denied under
section 67A05(b), in which case the law enforcement agency
that created the audio recording or video recording shall be
the respondent.
(b) Duties of petitioner.--A petitioner under this section
shall have the following duties:
(1) The petitioner shall pay a filing fee of $125.
(2) If the incident or event that is the subject of the
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request occurred inside a residence, the petitioner shall
certify that notice of the petition has been served or that
service was attempted on each individual who was present at
the time of the audio recording or video recording and on the
owner and occupant of the residence. Notice shall not be
required under this paragraph if the identity of an
individual present or the location is unknown or AND not
reasonably ascertainable by the petitioner. Service shall be
effective upon receipt from personal delivery or certified
mail WITH PROOF OF SERVICE .
(3) The petitioner shall include with the petition a
copy of the written request under section 67A03 that was
served on the law enforcement agency and any written response
by the law enforcement agency or Attorney General or district
attorney with jurisdiction to the request.
(3) THE PETITIONER SHALL INCLUDE WITH THE PETITION A
COPY OF THE WRITTEN REQUEST UNDER SECTION 67A03 THAT WAS
SERVED ON THE LAW ENFORCEMENT AGENCY AND ANY WRITTEN
RESPONSES TO THE REQUEST THAT WERE RECEIVED.
(4) The petitioner shall serve notice of the petition to
ON THE OPEN RECORDS OFFICER OF the respondent on the same
WITHIN FIVE DAYS OF THE date that the petitioner files the
petition with the court of common pleas with jurisdiction .
(c) Intervention.-- If not the respondent named in the
petition for judicial review, the Attorney General or the
district attorney who provides certification under section
section 67A04(c) (relating to law enforcement review) may
intervene in a petition filed under this section as necessary
and appropriate. , AND SERVICE SHALL BE EFFECTIVE UPON RECEIPT BY
THE OPEN RECORDS OFFICER FOR PERSONAL DELIVERY OR CERTIFIED MAIL
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WITH PROOF OF SERVICE .
(C) INTERVENTION AS MATTER OF RIGHT.--IF NOT A RESPONDENT, A
PROSECUTING ATTORNEY WITH JURISDICTION MAY INTERVENE IN THE
ACTION AS A MATTER OF RIGHT.
(d) Summary dismissal.--It shall be grounds for summary
dismissal of a petition filed under this section if:
(1) the request to the law enforcement agency under
section 67A03 or the filing of the petition under subsection
(a) is untimely; or
(2) the request to the law enforcement agency failed to
describe with sufficient particularity the incident or event
that is the subject of the audio recording or video
recording, including the date, time and location of the
incident or event . ; OR
(3) THE PETITIONER HAS NOT COMPLIED WITH THE
REQUIREMENTS OF SUBSECTION (B)(1), (2), (3) AND (4).
(e) Approval.--A court of common pleas with jurisdiction may
only grant a petition under this section, in whole or in part,
and order the disclosure of the audio recording or video
recording ONLY if the court of common pleas determines that the
petitioner has established all of the following by a
preponderance of the evidence:
(1) The request was not denied under section 67A04
(RELATING TO LAW ENFORCEMENT REVIEW) or the request was
denied under section 67A04 and the court of common pleas with
jurisdiction determines that the denial was arbitrary and
capricious.
(2) The public interest in disclosure of the audio
recording or video recording or the interest of the
petitioner outweighs the interests of the Commonwealth, the
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law enforcement agency or an individual's interest in
nondisclosure. In making a determination under this
paragraph, the court of common pleas may consider the
public's interest in understanding how law enforcement
officers interact with the public, the interests of crime
victims , law enforcement and others with respect to safety
and privacy and the resources available to review and
disclose the audio recording or video recording.
§ 67A07. Audio recording or video recording policies.
(a) Policies.--A municipal law enforcement agency or sheriff
that makes audio recordings or video recordings OF
COMMUNICATIONS UNDER CIRCUMSTANCES WITHIN PARAGRAPH (2) OF THE
DEFINITION OF "ORAL COMMUNICATION" IN 18 PA.C.S. § 5702
(RELATING TO DEFINITIONS) shall comply with the guidelines
established under 18 Pa.C.S. § 5706(b)(4), (5) and (6) (relating
to exceptions to prohibitions in possession, sale, distribution,
manufacture or advertisement of electronic, mechanical or other
devices) and shall establish written policies , WHICH SHALL BE
PUBLIC, for the following:
(1) The training of law enforcement officers authorized
to make audio recordings or video recordings.
(2) The time periods when an electronic, mechanical or
other device shall be in operation to make audio recordings
or video recordings.
(3) The proper use, maintenance and storage of the
electronic, mechanical or other device to make audio
recordings or video recordings, including equipment
inspections and audits and procedures to address
malfunctioning equipment.
(4) The information collected from audio recordings or
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video recordings, including the information's storage,
accessibility and retrieval.
(5) Electronic records retention.
(6) The use of facial recognition software or programs.
(7) A statement that a violation of the agency's policy
subjects the violator to the agency's disciplinary policy.
(8) Supervisory responsibilities.
(b) Pennsylvania Commission on Crime and Delinquency.--The
Pennsylvania Commission on Crime and Delinquency is authorized
to condition funding or a grant related to the implementation,
use, maintenance or storage of body worn cameras or recordings
from body worn cameras on the following:
(1) Requiring the grantee to have a protocol, guidelines
or written policies related to the implementation, use,
maintenance or storage of body worn cameras.
(2) Requiring that such a protocol, guidelines or
written policies are publicly accessible, including being
retrievable on a municipal website.
(3) Ensuring that the protocol, guidelines, or written
policies substantially comply with applicable recommendations
by the commission.
§ 67A08. Construction.
The following shall apply:
(1) Nothing in this chapter shall be construed to alter
the responsibilities of parties to any criminal or civil
litigation to exchange information in accordance with
applicable rules of procedure.
(2) Nothing in this chapter shall be construed to
preclude the Attorney General, OR a district attorney or a
law enforcement agency A PROSECUTING ATTORNEY WITH
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JURISDICTION OR A LAW ENFORCEMENT AGENCY from disclosing an
audio recording or video recording in the absence of a
written request or beyond the time periods stated in this
chapter, but the Attorney THE TIME PERIODS STATED IN THIS
CHAPTER.
(3) ATTORNEY General or the district attorney THE
PROSECUTING ATTORNEY with jurisdiction must agree IN WRITING
to the disclosure in writing BY A LAW ENFORCEMENT AGENCY if
THE PROSECUTING ATTORNEY DETERMINES THAT :
(i) the audio recording or video recording contains
potential evidence in a criminal matter, information
pertaining to an investigation, confidential information
or victim information; and
(ii) reasonable redaction of the audio recording or
video recording will not safeguard the potential
evidence, information pertaining to an investigation,
confidential information or victim information.
§ 67A09. Applicability.
The provisions of this chapter shall not apply if the
provisions conflict with any other Federal or State law.
THE FOLLOWING SHALL APPLY:
(1) NOTHING IN THIS CHAPTER SHALL BE CONSTRUED TO ALTER
THE RESPONSIBILITIES OF PARTIES TO CRIMINAL OR CIVIL
LITIGATION TO PRODUCE INFORMATION IN ACCORDANCE WITH THE
APPLICABLE RULES OF PROCEDURE.
(2) NOTHING IN THIS CHAPTER SHALL APPLY TO AN AUDIO
RECORDING OR VIDEO RECORDING THAT IS OTHERWISE PROHIBITED OR
PROTECTED FROM DISCLOSURE UNDER ANY OTHER FEDERAL OR STATE
LAW.
Section 4. This act shall take effect in 60 days.
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