Body cameras: Your right to know

Sean Philip Cotter

Fourteen York City police officers are wearing body cameras, and the rest of the force of around 100 likely will join them over the next several months.

Police chiefs and interest groups across the ideological spectrum seem to agree this is the right move, as long as it's implemented correctly.

"Obviously, it's the future of policing," said Wes Kahley, chief of the York City Police Department, one of the few departments so far in the state to have officers on the street donning such cameras.

In this file photo, York City Police Chief Wes Kahley comments during the mayor's news conference on the spike in violent crime in York City, Monday, Jan. 11, 2016. (John A. Pavoncello - The York Dispatch)

The objective: An oft-cited study of the Rialto, California, police department found police body-camera use cuts down significantly on the frequency of officers using force and the number of citizen complaints against officers.

It will keep everyone — officers and citizens alike — on their best behavior, increase transparency and foster trust, many believe. Sandra Thompson, a York City attorney and the head of the local NAACP chapter, sees the potential for clearing up disputed encounters between police and citizens.

York City won't release body camera policy

"It can confirm what the police say, confirm what the member of the public says," she said. "Protect the police, protect the public."

But lawmakers, department policymakers and activists have come to realize competing interests and priorities often require striking a delicate balance between privacy and oversight, transparency and victims' desires.

That tightrope walk is particularly evident in the continuously evolving discussion around what is released to the public and how. That type of discussion is the point of this week's Sunshine Week, an annual initiative by American Society of News Editors and Reporters Committee for Freedom of the Press to promote government transparency and access to information.

The body camera Rialto Study.

The push for body cameras has come in the wake of several high-profile instances of police officers killing people — often minorities — and, controversially, not facing charges or being acquitted. As many groups hope, Kahley said video will clarify any vagueness around eyewitness testimony in tense encounters between citizens and police.

York City Council members say they hope body-cam video will clearly determine who was in the wrong — and they support the use of cameras, which were paid for with a $100,000 donation from WellSpan Health.

York City announces 14-officer body camera pilot program

Access: Members of the media, advocacy groups and even curious private citizens can request footage from the department under the state's Right-to-Know Law.

Kahley said, however, video that's part of an investigation would not be released to the public.

But the distinction of what is and isn't part of an investigation is tricky and has become even more complex in recent years, according to Erik Arneson, executive director of the state Office of Open Records, which is where someone whose request was denied would bring an appeal.

Arneson said the state's Right-to-Know Law, which was rewritten in 2009, is effectively "format agnostic," meaning it should apply much the same to body-cam footage as it does to that of other recording media, such as dashboard-mounted cameras.

"There’s no inherent difference between the two," Arneson said.

Erik Arneson

Appeals: Arneson said his office has not yet had any appeals relating to body-camera video footage — though he expects to "within the calendar year."

However, there have been appeals regarding dash-cam footage, including one from mid-2014 that brought about a change that could have a major impact on the success of Right-to-Know requests for body-cam recordings.

Known as Pennsylvania State Police v. Michelle Grove, the case changed the Office of Open Records policy regarding standard denials of appeals relating to dash-cam footage. Arneson's office, which had been treating all dash-cam footage as exempt from requests, began allowing some of it to be disseminated, he said.

As long as footage is "just documentary in nature without capturing investigative activity," it should be released if it's requested, Arneson said.

Portions of the recordings, such as some interviews, footage of officers conducting an investigation and field-sobriety tests, remain exempt from disclosure because they're still deemed investigatory. But footage simply of something happening, such as a potential crime or an officer using force, must be made available, he said.

Appealing the appeal: Or, at least, it may be in the future. After the open records office overturned the state police's denial, state police petitioned the state's Commonwealth Court, which upheld Arneson's office's decision. State police further appealed that decision up to the state Supreme Court; that's currently pending, Arneson said.

What that court decides will ultimately influence policy — if it affirms the Commonwealth Court's decision, or simply opts not to hear the case, what the Office of Open Records decided in 2014 will become the standard approach. If not, it'll revert back to becoming much harder to get footage released.

"Most law enforcement agencies are likely to take a conservative view and deny" requests until this case is concluded, he said, and there's no set timetable for that.

But a ruling in favor of Arneson's opinion that not everything is investigatory would likely open the doors to better access, he said.

"Once the law is settled, there’s no real benefit to denying something that is known to be public," Arneson said.

Competing rights: That would make transparency advocates such as the ACLU and the Pennsylvania NewsMedia Association very happy. Both say the public must have access to footage to ensure police oversight.

But those organizations part company on exactly what should be made available to the public.

With the organization's eye on privacy concerns, the ACLU wants rules in place requiring a subject's ability to grant or deny consent regarding the release of footage, according to Mary Catherine Roper, deputy legal director for the Philadelphia-based ACLU of Pennsylvania.

This especially applies to recordings in people's homes, which documents on the national organization's website call the "perhaps most troubling" of all the issues it has with body cameras.

For the time being, the York City Police Department will not record in people's homes, said York City Chief Kahley.

Kahley said this is because of the state's wiretap law, which requires everyone being audio recorded to agree to that happening. There's an exception carved out already for police in public places, but not in people's homes. There's also a provision in the law aimed at officers' shooting video in private buildings already, but Kahley said he's waiting for the law to be cleared up before officers start recording audio at all and video in people's homes, just to be safe.

"We just don't want that officer to make that mistake" and accidentally break the law, he said.

Roper disagrees, saying she couldn't imagine a scenario under the current law where the police would get into trouble as long as they didn't record inside a building.

Mary Catherine Roper

"I don't think that would be the basis of a successful suit," Roper said. "The idea that they’d get in trouble for near misses is undue paranoia."

Both she and Kahley said video loses some of its value without audio. The chief said he hopes a bill currently before the state Senate ends up being passed; SB 976, sponsored by state Sen. Stewart Greenleaf, R-Montgomery County, would allow officers to record both video and audio inside people's homes.

If that bill passes, York City Police would move to begin recording audio, Kahley said.

Patrick Cawley, the executive director and counsel for the Senate Judiciary Committee, added that the law would exempt recordings in homes and police stations from being subject to release under the Right-to-Know Law.

Cawley, a Greenleaf staffer, said that's important because often police respond to domestic situations inside homes — among the most volatile instances officers face.

Members are also considering additional amendments, Cawley said.

Cawley said several departments around the state are in holding patterns and don't plan to move ahead with body-camera programs until the legislative situation is resolved.

Transparency: This bill concerns the Pennsylvania NewsMedia Association for a couple of reasons. First, the association is against a blanket exemption for video in homes, said Paula Knudsen, the organization's director of government affairs and legislative counsel.

But there's also a deeper worry that the letter of this new law could be applied overly broadly, she said. In the bill's current form, the changes would in part read: "Oral and video recordings by law enforcement officers made under this section shall not be subject to production under the Right-to-Know Law."

She said her organization thinks with that wording, the law could be extrapolated to all body-cam recordings.

"It’s not clear," Knudsen said. "It needs additional amendments."

The association wrote about this in an update it sent out Oct. 30 to subscribers.

"Despite PNA's past testimony and comments, the amended bill now contains a blanket prohibition against release of body-camera footage under the (Right-to-Know Law)," it said.

But even if the prohibition does just apply to private residences and police buildings, as Cawley said, Knudsen said the PNA is against it. Because calls in homes are often the most high-tension, she wants the public to be able to get some of that footage if something goes wrong.

Thompson, the head of the local NAACP chapter, wants the department to begin recording in homes sooner rather than later.

"There’s no real reason to exclude homes," she said, saying even without the bill, there was no way for the officers to get in trouble for recording video without audio.

Some of the police behaviors she believes need the most monitoring are those that have to do with police entering homes.

Sandra Thompson

Thompson, in a telephone interview, at one point put The York Dispatch on hold for a minute to take another call. When she got back on the line, she said the other caller had been someone looking for legal help, alleging city police improperly entered his home. In that situation, a body camera — particularly with audio, which probably would need the Greenleaf bill's passage to help in this instance — would be a big help in showing whether or not officers had his consent or cause to search the man's residence, she said.

Thompson doesn't believe the privacy concern is a major factor, she said. She doesn't believe members of the public are going to make many Right-to-Know requests aimed at digging up dirt on other people.

"I don’t really think that is a valid worry or fear at this point," Thompson said.

It does concern Rick Azzaro, the chief services officer for the Access-York shelter for the victims of domestic violence, though. He said domestic-violence advocates are pulled in two different directions on the issue of body cameras. On one hand, it's very important to protect the privacy of people involved in those situations, he said. Without privacy protections, all it takes is one successful request by someone with a YouTube account for footage of a bad or personal situation to be out there on the Internet.

Rick Azzaro

But on the other hand, body cameras could be a strong tool in gathering concrete evidence in domestic-violence cases, he said.

"It makes it easier to prosecute abusers," he said.

If people saying they were abused end up recanting, as happens not infrequently in domestic-violence cases, the cases normally fall apart, he said. And in domestic-violence situations, such recanting rarely means the violence didn't happen, he said — instead, it almost always comes from the fear the abuser will further hurt the victim.

So Azzaro said the Greenleaf bill sounded good to him, as long as there are measures in it to protect the privacy of victims.

— Reach Sean Cotter

Sunshine Week
Sunshine Week