Many townships have video surveillance in and around their municipal buildings for security purposes, either maintained by the township or its police department. As this technology becomes more cost-effective and widely used, townships may begin to receive requests for video surveillance footage under the Right-to-Know Law. What should a township do when it receives a request to review or duplicate this type of record?
The first thing to do is determine whether the requested footage actually exists and, if so, who has it. Often, surveillance footage is recorded over after a certain time. If the footage exists, the township should make sure to preserve it while the request is pending, as well as during any appeal period if the request is denied.
Assuming the surveillance footage exists, the township should next consider whether any of the exemptions set forth in Section 708 of the Right-to-Know Law apply, particularly the personal security exemption. The law exempts a record if its disclosure would be reasonably likely to result in a substantial and demonstrable risk of physical harm to an individual or to the individual’s personal security. 65 P.S. §67.708(b)(1)(ii).
When considering the applicability of this exception, the Office of Open Records, as well as the courts, will look to see if the township can show that the release of the footage would create both a reasonable likelihood and a substantial and demonstrable risk of harm. County of Lancaster v. Vonderheide, No. CI-10-00631 (Co. Common Pleas Lancaster May 5, 2011); Zachariah v. Pa. Dept. of Corrections, No. AP 2009-0481 (Pa. Office of Open Records Jul. 8, 2009).
The following facts have been deemed by the Office of Open Records and courts of common pleas sufficient to meet this standard:
1) Releasing the footage would alert people to gaps in surveillance, endangering those who enter and occupy the premises, Knick v. Scott Township, No. AP 2012-0391 (Pa. Office of Open Records Apr. 13, 2012); Zachariah, No. AP 2009-0481;
2) Disclosing the footage would reveal the surveillance capabilities for the entire floor, including blind spots, which would slow down the response time of those responsible for monitoring the cameras, Vonderheide, No. CI-10-00632; and
3) Releasing the footage would endanger public safety and preparedness because the video surveillance system works as a deterrent and helps the appropriate security personnel respond to incidents, Id.
PUBLIC SAFETY EXEMPTION MAY APPLY
A second exemption that a local agency should consider is the public safety exemption, especially if the requested footage is from the surveillance system of a prison or similar facility. Records maintained by an agency in connection with public safety activity are exempt from disclosure if releasing them would be reasonably likely to jeopardize or threaten public safety. 65 P.S. § 67.708(b)(2).
To establish the applicability of this exemption, a local agency must show that the requested record relates to law enforcement or public safety activity and that its disclosure would be reasonably likely to threaten public safety or a public protection activity. Carey v. Dept. of Corrections, 61 A.3d 367, 375 (Pa. Commw. Ct. 2013).
Similar to the personal security exemption, the Office of Open Records and courts have relied on the following facts when upholding a denial based on public safety:
1) The video surveillance system is used for the express purpose of public safety, in that it ensures staff and visitors are protected when inside the building, Mihalik v. Columbia Co. Prison, No. AP 2013-1381 (Pa. Office of Open Records Sept. 3, 2013);
2) Disclosing the video footage would be reasonably likely to cause a threat of harm because individuals would be able to review the footage, determine the weaknesses of the system, and use those weaknesses to cause harm to staff or visitors, Id.;
3) Disclosure of the footage would permit individuals to circumvent the security system, including at the entry and exits of the building, and reduce the ability of the sheriff’s office to ensure the safety of those who use the building, Cap v. Lehigh Co., No. AP 2010-1013 (Pa. Office of Open Records Nov. 22, 2010); and
4) Releasing video footage would allow an individual to test security procedures and perform preoperational surveillance and planning of attacks on public facilities, Monighan v. Pa. Dept. of Transportation, No. AP 2015-0392 (Pa. Office of Open Records Apr. 14, 2015).
Before citing either the personal security or public safety exemption as a reason for denial, a local agency should consult with its chief of police or the security personnel responsible for overseeing the video surveillance system to determine whether the exemption applies. If the agency denies the request and the denial is appealed, it will have to submit an affidavit of someone who has personal knowledge of how the video surveillance system is used, as well as the likelihood and type of harm that could occur if the footage were disclosed. The Office of Open Records will not rely on a municipality’s unsworn assertion that these exemptions apply. Cristea v. Bristol Twp. Sch. Dist., No. AP 2014-0408 (Pa. Office of Open Records Apr. 9, 2014).
CONTENT OF FOOTAGE MUST BE CONSIDERED
In addition to reviewing possible security and safety concerns that would arise if video surveillance footage were disclosed, a township should also consider the content of the footage. If it captured potential criminal activity or activity that is the subject of a noncriminal investigation, the footage may be exempt from disclosure as a record relating to a criminal or noncriminal investigation, respectively. See 65 P.S. § 67.708(b)(16), (17). The township should consult with its police department or the appropriate municipal personnel to verify whether the footage is involved in either type of investigation.
As always, a township should consult with its solicitor when questions arise. Also, although it is not required of a local agency, the township should cite every reason that supports a denial of the request.
Lastly, the township should make sure to respond to the request and any appeal within the appropriate time frame. The Office of Open Records will likely grant a request for video surveillance footage if a township fails to respond to the request and appeal. See Cap v. Lehigh Co., No. AP 2010-0561 (Jul. 20, 2010).
The law exempts a record if its disclosure would be reasonably likely to result in a substantial and demonstrable risk of physical harm to an individual or to the individual’s personal security.
Records maintained by an agency in connection with public safety activity are exempt from disclosure if releasing them would be reasonably likely to jeopardize or threaten public safety.
Stock photo of surveillance cameras, screens showing camera views, etc.
What should a township do when it receives a request to review or duplicate video surveillance?