Tapes in driving arrest withheld as investigative records

PENNSYLVANIA–Audiotapes of telephone calls to and from the Haverford Township Police Department concerning the arrest of a friend of a township commissioner can be withheld from the Philadelphia Inquirer under the “field investigation” exception to Pennsylvania’s Right to Know Law, a state appellate court in Harrisburg held in early December.

The Commonwealth Court held that the tapes, which were routine recordings of telephone calls, became investigatory records because the police had not destroyed them. The police would have destroyed the tapes if there had been no need for an investigation, the court determined.

In March 1995 police stopped a man for driving erratically and took him into custody when he failed two sobriety tests, but he passed a chemical breath test at the police station and was eventually released without being charged. But while he was in custody, his longtime friend, the vice president of Haverford Township’s Board of Commissioners, called the police department about the arrest and a police sergeant twice called the commissioner. The police taped all three calls.

In January 1996, a Philadelphia Inquirer reporter asked the police for copies of those tapes. The police told him he could only have the tapes with a subpoena or court order. They also told him that the tapes are only kept for 30 days, but the reporter learned that the tapes were preserved in an investigatory file.

The reporter sued for the tapes but in late March the Court of Common Pleas in Media, Pa., ruled that they were “field investigation” records exempt from the act.

The newspaper appealed, saying that the audiotapes were made routinely before there was any investigation. However the appeals court said that the preservation of the records transformed them from routine records to investigatory records. The court said that the police department would not “maintain evidence of impropriety when it could easily have allowed any such evidence to be destroyed by failing to conduct an investigation.” (Philadelphia Newspapers v. Haverford Township Police Dept.; Media Counsel: Amy Ginensky, Philadelphia)