HARRISBURG – The state Legislature will need to walk a fine line in a controversial measure that would have more police officers wear body cams but would sharply reduce public access to the resulting video, a government transparency expert says.
"My greatest hope is that Pennsylvania's Legislature will strike the right note and that citizens have access to the records that they own," Terry Mutchler, of counsel in Pepper Hamilton's Philadelphia office, told the Pennsylvania Record.
Mutchler is a former award-winning journalist, lawyer and best-selling author who leads Pepper Hamilton's transparency practice within the firm’s Media and Communications Practice Group. Previously, she was the first executive director at Pennsylvania's Office of Open Records, created to ensure government transparency.
Prior to that, Mutchler was appointed Illinois' first public access counselor to enforce that state’s sunshine laws and a senior adviser to the state's attorney general.
Pennsylvania Senate Bill 976, which would curtail public access to police body camera video and force anyone who wants access to go through a court process, has reached the Republican-controlled House Judiciary Committee after passing the Republican-controlled Senate last month.
Senators passed the bill 45-5 to change the state's Wiretap Act to allow police to wear body cameras into private homes and public spaces without having to explicitly inform everyone they encounter that they are wearing a camera.
A memo included in the legislation clarifies that police officers may record interviews with suspects or witnesses inside police facilities.
The legislation's chances of becoming a law are good, Mutchler said.
"I think that there's a very good shot that this will pass, unless the governor intervenes," she said.
Mutchler said she is unaware of Gov. Tom Wolf's position on the legislation and it appears the governor's office has not publicly announced that position. The office of the Democratic governor has not endorsed the bill but did issue a two-sentence statement in January saying the office will continue to work on the bill with the Legislature.
The legislation is championed by Sen. Stewart J. Greenleaf (R-Montgomery), to whom the Pennsylvania NewsMedia Association addressed an open letter opposing the legislation.
"We acknowledge that there will be circumstances where competing interests should be considered, and those could be handled through appropriate statutory language," the letter said.
"However, a blanket prohibition against release of body camera footage defeats a basic purpose of using this technology, and completely eviscerates the premise that body camera footage can, and should, be used to promote accountability and transparency for law enforcement."
While opposition to the legislation generally centers around the public's right to know and access to public records, the reason it is written is far different, spawned by attention paid to police shootings of unarmed civilians across the nation, Mutchler said.
"This type of legislation is springing up all over the place, especially in light of Ferguson, Baltimore, Baton Rouge, New York and other places," she said.
Mutchler specifically referred to a Harrisburg police shooting, in which Earl Shaleek Pinckney was killed by police during a domestic dispute call in August. On Nov. 7, District Attorney Ed Marsico announced that Pinckney's death represented a failure of the mental health system and that no criminal charges would be in the case.
"These incidents are the wellspring of legislation like this," Mutchler said.
However, opponents of the legislation also complain about how little attention is being paid to Senate Bill 976. When the Senate approved the measure Oct. 19, it did so with no debate.
"Some believe that there is consensus among stakeholders for police officers to wear BWCs (body-worn cameras)," Pennsylvania ACLU Legislative Director Andy Hoover said in a letter to senators before they voted on the legislation.
"But this assertion requires an important caveat: If these cameras are to be an effective tool in law enforcement practices, their use must be accompanied by policies that promote transparency and accountability and that balance privacy and the public interest."
Senate Bill 976 fails that test, Hoover's letter said.
Critics also point out that the legislation would require anyone who wants access to video from BWCs to identify every person in such video before the video may been viewed and would allow such requests to be denied if the information being sought was part of an active investigation. Requesters also would have to pay $250 filing fees and go through a lengthy court procedure.
"That could take years," Mutchler said.