Under Pennsylvania’s Act 22 of 2017, a public school entity will be considered a “law enforcement agency” if it employs a court-approved “school police officer.” That status under the Act removes the school entity from Pennsylvania’s Right to Know Law (RTKL) process – at least when it comes to audio or video recordings made by the school. This eliminates the presumption that those recordings are public. Instead, the Act makes its own rules for evaluating whether to release such “law enforcement agency’s” recordings.

School entities should be aware that although there are three types of school security officers, this status change only applies to those schools that employ their own “school police officers.”

Background on Act 22

Previously, there were many RTKL court decisions involving the release of law enforcement video and audio recordings, such as bodycam and dashcam videos. Because the RTKL starts from the presumption that all agency records are public, the courts decided to require the release of recordings in situations where the police did not sufficiently prove an exception to that openness. This was true although, in some cases, the police argued that releasing certain audio or video records have an adverse impact on their active investigations.

In the aftermath of those decisions, the state legislature passed Act 22, which declared that the RTKL no longer controlled the release of audio or video made by any law enforcement agency. However, the Act is fairly expansive and neither limits the recordings to bodycam or dashcam videos nor limits the definition of a “law enforcement agency” to only state or municipal police departments. Instead, the Act includes all audio and video recordings by law enforcement agencies, and will consider any political subdivision a law enforcement agency if:

• Its law enforcement officer(s) are empowered by law to conduct investigations of criminal or other similar matters, or to make arrests; and
• The political subdivision directly employs the law enforcement officer(s). (School districts, intermediate units and vocational-technical schools are all types of political subdivisions.)

In appointing a school police officer, the School Code’s Safe Schools Act (24 P.S. §13‑1306‑C(b)) allows the courts to give school police officers the following powers:

“If authorized by the court, a school police officer who is a law enforcement officer employed by a school entity … may exercise the same powers as exercised under authority of law or ordinance by the police of the municipality in which the school property is located.”

Where a school district’s school police officer has that power, it is sufficient to trigger Act 22 and make that entire school district a “law enforcement agency” for Act 22 purposes.

School Compliance Under Act 22

It is worth repeating that this use of Act 22 does not apply to school districts that only utilize “school resource officers” (municipal or state police who, by agreement, are stationed in the school for various tasks) who are clearly police officers but are employed by an outside agency. The same is true for schools that contract with an outside provider for their school police officers. Finally, a school district that only employs security guards will not qualify under Act 22, either.

But for those schools that qualify as a “law enforcement agency,” any video or audio recordings created by the school – and not just those created by the school police officer – will be evaluated for release under Act 22 and are not public under the RTKL.

The Office of Open Records (OOR) agrees that this interpretation concerning “school entities as law enforcement agencies” is correct, but appears to do so reluctantly, calling the interpretation absurd. That reluctance has not prevented the OOR from dismissing such appeals as being outside its jurisdiction.

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