TACOMA, Wash. — A new appellate court ruling means there will be a closer look at public records penalties against the City of Tacoma in a case concerning a cell phone surveillance device used by police.
A three judge panel of Division II of the Washington State Court of Appeals upheld most of the penalties against the city Wednesday, which totaled $182,340 for records it withheld about the device.
The ruling also said a penalty for withholding citizen review panel meeting minutes was too harsh and called for an evidentiary hearing about whether a billing spreadsheet was properly disclosed and whether an operator’s manual for the device should have been turned over.
The trial court will have to recalculate the penalties based on those findings.
Called a Stingray, the device acts like a cell tower by connecting to nearby phones. It is then able to locate them.
“We’re happy that most of the determinations of the trial court were affirmed,” John Midgley, policy advocacy supervisor at the ACLU of Washington, said Thursday. “… We represented community members in asking for transparency about this invasive technology.”
Four Tacoma residents requested the records in 2015: the Rev. Gregory Christopher, the Rev. Arthur Banks, the Rev. Toney Montgomery and Whitney Brady. The ACLU filed a lawsuit on their behalf, arguing that records they requested were withheld or redacted in violation of the state’s Public Records Act.
“Technology can be used by police and has often been used by police and other agencies to surveil communities of color, and we were very pleased to represent people in this case to enhance transparency of this kind of technology,” Midgley said.
Then-Pierce County Superior Court Judge Helen G. Whitener, who is now a state Supreme Court justice, calculated the penalties after finding the city violated public records law. The city appealed. The ACLU also appealed, challenging Whitener’s ruling that the make and model information about the device was exempt from disclosure.
State law allows for a penalty of up to $100 a day for records that are improperly withheld.
The appellate court found Whitener’s penalty against the city of $80 a day for citizen review panel meeting minutes about the device, which amounted to $77,760, was excessive.
“With regard to the withheld meeting minutes, some penalty was appropriate but we hold the severe penalty for these records was an abuse of discretion,” Judge Rebecca Glasgow wrote in the opinion, which was also signed by Judges Bradley Maxa and Lisa Sutton. “... There is no evidence that this was anything more than an oversight. Although the trial court emphasizes that these documents were available on the City’s website, it used this factor to aggravate, rather than mitigate, the penalty.”
Another record at issue was a billing spreadsheet that showed when the Police Department used the Stingray device. Whitener found the complete spreadsheet should have been disclosed, not the edited version. There’s a dispute about what the entries on the spreadsheet show.
“We reverse the trial court’s conclusion that the City violated the PRA with regard to the edited billing spreadsheet and remand for an evidentiary hearing to resolve whether the edited spreadsheet was fully responsive and compliant with the parties’ agreement,” Glasgow wrote. “We recognize that it is rare for a public records action to require an evidentiary hearing with testimony, but because the detectives’ statements appear to conflict, this is the rare case where an evidentiary hearing with testimony is warranted.”
There also needs to be a hearing about whether any operating manual for the device was being used by police at the time of the request. Hard copies were destroyed or returned before the records request was made, but if an electronic version was used, a redacted version needs to be disclosed, the ruling said.
The appellate panel found Whitener was right to find make, model and pricing information about the device exempt from disclosure.
SIMILAR CASE, DIFFERENT RULING
That part of their ruling differed from a Division II decision last year concerning a similar public records request filed by public records activist Arthur West.
The court found the make, model and pricing information subject to disclosure in West’s case, but not in the ACLU’s.
“The West court emphasized that neither the city’s evidence nor the FBI affidavit in support of the federal government’s statement of interest explained how certain cell site simulator ‘technology makes or models might differ from others and why knowledge of these distinctions would be dangerous in the hands of criminals,’” Glasgow wrote.
This time, Division II found, an FBI agent “specifically stated that criminals could combine information about the makes and models of Tacoma equipment with publicly available information about the capabilities of various cell site simulators to thwart their effectiveness and evade law enforcement detection,” Glasgow wrote.
With pricing information, the ruling said, someone could figure out what equipment the city has.
“The plaintiffs’ own expert report demonstrates that pricing information must be withheld because it can be used to determine what cell site simulator components the City has purchased,” Glasgow wrote.
The News Tribune reported in 2014 that police had used the device hundreds of times since 2009.
Police said they always asked permission of judges to use it, but Pierce County Superior Court judges said they hadn’t known police used the orders for a Stingray, The News Tribune reported. City Council members said they didn’t know the full capabilities of the Stingray when they approved an upgrade for it in 2013.
“Nobody knew about it, including the judges who were signing some of the warrants,” Midgley said. “There were some mentions of it, as I recall, in some meetings.”
The City had a nondisclosure agreement with the FBI that required it to check with the federal agency before disclosing information about the device.
Asked for comment about the appellate decision, a city spokesperson said Thursday that the city would not comment because the matter was still being litigated and had been sent back to the trial court for further proceedings.
Last year, a Pierce County Judge in a separate public records lawsuit found “that additional Public Records training to all City Department heads is needed with the intent that the importance of a clear and consistent process of compliance with the Public Records Act ripple out to City Department Heads, and the Court expects the City Attorney’s office to conduct such training.”
A city spokesperson told The News Tribune in a statement at the time: “The City of Tacoma respects the court’s decision and takes its obligations under the Public Records Act seriously, including training of its employees, elected officials and volunteers.”
Asked at the time for a tally of penalties assessed against the city in the past five years for violations of the Public Records Act, the City listed five cases with a total of nearly $3 million in penalties.
One lawsuit from a fired police officer seeking records of his termination, accounted for $2,607,940 of that, and that matter was on appeal.
This story was originally posted by The News Tribune.
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