Earlier this year, Governor Tom Corbett signed into law Act 9 of 2014 (“Act 9”), an amendment to the Pennsylvania Wiretap and Electronic Surveillance Control Act.
This amendment expressly authorizes the use of audio surveillance equipment on school buses or school vehicles for disciplinary or security purposes and provides important clarifications of the law.
This new legislation was, in part, inspired by a class action lawsuit arising out of Berks County that involved lingering questions as to the applicability of Pennsylvania’s wiretap act to audio recordings on school vehicles. In response to that litigation, the Pennsylvania District Attorneys Association (“PDAA”) issued a recommendation to its members as it relates to enforcement of the law.
While some district attorneys in the Commonwealth ignored the recommendation of the PDAA and warned schools that they would prosecute audio recording, others adopted it and issued directives to schools within its jurisdiction suggesting that if a school board’s audio policy authorized recording for the purpose of providing a safe educational environment for students and staff, he or she would not seek criminal prosecution against the school or third party transportation contractor.
To avoid prosecution, however, the directives required schools give advance notice through a variety of means, including notice in the student handbook, notice sent to parents, and posting of a notice on all school buses.
This resulted in much uncertainty for schools, since without a statutory amendment they remained vulnerable to both civil liability and criminal prosecution under the wiretap law.
Act 9 provides much needed clarity and is nearly identical to the recommendations issued by the PDAA. Therefore, it is a codification of what many schools have already been doing based upon on the prosecutorial discretion of their county’s district attorney.
Requirements
Along with authorizing audio recording on school vehicles, Act 9 sets forth specific requirements that must be in place in order for audio recordings to be lawfully utilized. These requirements are as follows:
- The school board must adopt a policy that authorizes audio interception on school buses or school vehicles for disciplinary or security purposes.
- Each school year, the school board must notify students and their parents or guardians of the policy, by letter mailed to the students’ home address.
- The school board must post a notice that students may be audiotaped, which notice must be clearly visible on each school bus or school vehicle that is furnished with audio-recording equipment.
There is, however, one important exception to the general authorization of audio recording on school vehicles. The statute expressly states that it does not apply when a school bus or school vehicle is used for a purpose that is not school related. For example, if a school bus is rented to a community group, such as a church or the girl scouts, audio recording equipment must be turned off.
The law is also limited to school vehicles. It does not extend to authorize audio recordings utilized in school buildings. Such recordings continue to be subject to a reasonable expectation of privacy analysis and under certain circumstances may be permitted in public places such as lobbies and hallways.
The Bottom Line
Whether your school currently utilizes audio recording or seeks to implement audio recording on school vehicles, now is a good time to review your board policy to ensure (1) that audio and visual recording is expressly authorized by the board and (2) that guidelines include the specific notice requirements required under the statute.
We also recommend that you consult your solicitor or an attorney in the KingSpry Education Department to ensure your policy is fully compliant with the law.
School Law Bullets are a publication of the KingSpry Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.
