What Does PA’s Background Check Law have to do with Brandon Tate-Brown?

February 21st, 2015: Private investigator Greg Brinkley, hired by Tate-Brown's family in December, speaks to crowd at protest in Mayfair. Photo: Dustin Slaughter

February 21st, 2015: Private investigator Greg Brinkley, hired by Tate-Brown’s family in December, speaks to crowd at protest in Mayfair. Photo: Dustin Slaughter

By Austin Nolen

The Philadelphia Police Department hasn’t exactly been doing a bang-up job on being open about the shooting death of Brandon Tate-Brown. They failed to notify his mother, first that her son was dead, and then that the cops involved had been cleared. Then, evidence presented to her lawyer and a public video contradicted key elements of the official story.** But, to be fair, it’s not entirely their fault.

In 1979, the Pennsylvania General Assembly enacted a piece of legislation called the Criminal History Record Information Act (CHRIA). The law has some praiseworthy goals – it regulates potential abuses of law enforcement files by police, other government agencies and employers – but it also has a few provisions that go too far, and present serious hurdles for law enforcement transparency.

First and foremost:

Investigative… information shall not be disseminated to any department, agency or individual unless the department, agency or individual requesting the information is a criminal justice agency which requests the information in connection with its duties, and the request is based upon a name, fingerprints, modus operandi, genetic typing, voice print or other identifying characteristic.

In other words, state law specifically bars police from releasing investigative records (as opposed to records about convictions) to anyone but other law enforcement agencies. And what were to happen if police released a record anyway?

Any person, including any agency or organization, who violates the provisions of this section shall be subject to… administrative penalties [and]… civil penalties…. in addition to any other civil or criminal penalty provided by law.

A recent PA Attorney General guide to CHRIA listed the following crimes as examples of potential charges for violating the act: unlawful use of a computer, tampering with public records, obstructing administration of the law or unlawful access to stored communications. When the PPD and city officials refuse to turn over records, it may be because they’re aware that such harsh penalties could result.

While police can also hide behind the Right to Know Law’s broad exemption for all records “related” to a criminal investigation, that exemption can be waived and the records released. Not so for CHRIA. Even if the General Assembly made more investigative materials public under Right to Know, CHRIA would still act as a barrier to disclosure. There are other ways to accomplish the goals the act tries to accomplish: the federal Privacy Act, for instance, regulates potential abuses of government information, but also requires any information be released if it is public under the Freedom of Information Act, which has its own privacy provisions.

Under CHRIA, Philadelphia Police personnel could face repercussions even for allowing Brandon Tate-Brown’s mother and her attorney to view videos of his death. What clearer sign that reform is needed could there be?

2/26 — Edited to add: Subsequent to the original posting, Philadelphia’s Police Advisory Commission released a statement from executive director Kelvyn Anderson which tentatively supports many aspects of the police account. The statement and other comments made by Anderson to the press contradict the claims made about video of the shooting by Brian Mildenberg, the lawyer representing Tate-Brown’s mother, and dispute the relevancy of the public footage showing his car with headlights on fifteen minutes prior to the shooting.

Taken together, the lawyer’s version of the video and the public video cast doubt on the police story. However, in the author’s opinion, PAC’s Kelvyn Anderson is a better authority (both in terms of his neutrality and access to more records of the investigation) than Mildenberg and, taken alone, the public video is mostly irrelevant. The Police Department still has giant strides to make in terms of transparency, however, and as Anderson points out, there are still unanswered questions about the shooting.

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