"And possibly others:" Adventures in vague FOIA denials

One CT police department tries to invoke the entirety of the Freedom of Information Act in denying one of my requests then refused to elaborate.

Given my past experience with FOIA (I think I still have requests pending in Maine from a job I left two years ago), I expect a certain degree of pushback from government agencies when handling requests.

I’ve been told I should narrow large requests because,“Well, you should narrow your request because it will take you a long time to review these responsive documents.” I’ve been quoted thousands of dollars for basic requests. I’ve had agencies threaten to close long-standing requests unless I indicated I’m still interested in the requested information. I’ve had records produced only after—and suspiciously quickly after—I’ve threatened legal action.

But, still, there are responses so brazen in their unwillingness to answer basic, statutorily required questions that continue to astound me.

If you’re interested in privacy, you’ve probably heard something about automated license plate readers (ALPRs) and the way they’ve proliferated with very little oversight in contrast to, say, other road infrastructure like traffic lights that requires a great deal of study on its potential impacts.

In October, I reported on a federal lawsuit being brought against Flock Safety, a company that has contracted with police departments across the country to install ALPRs. A colleague had previously reported on how these had begun to proliferate in Connecticut.

There are other companies that provide ALPRs, but, as part of its PR efforts to downplay how Orwellian its fixed cameras recording every single car that passes are, Flock maintains that it only stores data for 30 days.

One interesting tidbit of information I ran across while doing some research for the story was a statement on a “transparency portal” that presents statistics on the number of cars captured versus the number retroactively identified as being related to criminal activity claiming that the police department, not Flock, owns the data from its ALPR.

Fantastic, I thought, since I’d just done a piece on how personally identifiable information can be obtained through FOIA. If the police own ALPR data, it’s FOIA-able.

On the whole, that project has been an exercise in illustrating just how inconsistently FOIA is applied by different state and municipal agencies.

But one response in particular rendered me speechless, because not only did they cite a specific law enforcement exemption to Connecticut’s public records law, but also added the qualifier that possibly other sections of the law might apply.

That is, of course, not a legitimate response. FOIA in Connecticut requires that each instance where information is withheld be accompanied by a citation for a specific exemption.

And I told the department so, which was met with a stern “we believe the response is provided is adequate” from the chief of police.

Again, it is absolutely not adequate and I reiterated my request that a specific exemption be cited. To be met with additional obfuscation in the form of a trite email stating “You have our response.”

The denial also came came after I offered followup technical questions to earlier correspondence about the request and offered to speak with the department’s technology officer to clear out questions about the request because it turns out the statement that police departments own Flock data is not quite that black and white.

Seeing as I was getting nowhere, I roped in my editor, who is always helpful when I and my fellow reporters are dealing with difficulties.

This did not make this police department any happier. In an email exchange forwarded by the town attorney, the police chief complained I had “sicced” the managing editor on them.

Well, yes, when you won’t answer me, I use my resources appeal to higher authorities. And what’s more, it worked, in that the town attorney provided a more elaborate if just as unsatisfactory explanation of their response. If you don’t want that to happen, maybe it’s a good idea to just answer basic questions.

The town attorney’s explanation for the response was equally nonsensical: Until the records were reviewed, he explained, they couldn’t be certain additional exemptions weren’t applicable.

Which is a complete Catch-22 because they refused to review the records, first by claiming they didn’t have access to the data I was looking for, and then by ignoring my technical questions about their initial response to the request.

The hypothetical construction of “We can’t possibly know if other exemptions apply until we review the records” is obviously ludicrous. You cannot wave your hand vaguely in the direction of FOIA and say “Well, any of this could apply.” when confronted with a request for records.

This request ultimately does not have a satisfactory ending, but, seeing no reason to keep beating my head against the wall, that is the end of it. At least for the moment.

That’s probably one of the most frustrating things about dealing with FOIA: sometimes even when you know you’re in the right, sheer stubborn intransigence wins because it’s just not worth allocating resources to fighting it. When the majority of requests you file receive pusback, you end up having to pick your battles and prioritize the ones you can prevail on.

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FOIA Filing Lesson: Always ask for specific exemptions, if not to cover your legal bases, then for the amusement of watching agencies try themselves in knots trying to justify their behavior.

In Other FOIA News: Connecticut uses a system called GovQA to handle requests and it is abominable. Read more about the roughly 100 nearly identical requests I recently filed.