Police silence on radio skirts law, suit says

Brothers accuse LR, NLR of information act violations

A pair of Sherwood brothers have filed a lawsuit accusing the cities of North Little Rock and Little Rock of violating the state Freedom of Information Act by not providing them real-time access to police radio traffic.

Brandon and Jeremy Mullens filed suit in Pulaski County Circuit Court on Friday against North Little Rock. On Monday, the brothers added Little Rock, its police chief and the head of its police communications division to appeal past denials for Freedom of Information Act requests made to access encrypted radio traffic on publicly financed radio frequencies.

Jeremy Mullens said the suit came about after he and his brother grew frustrated that their requests for access to police radio traffic, which was encrypted in North Little Rock in January and late last month in Little Rock, were denied.

"They're trying to obscure what's going on, and that's against the law," Jeremy Mullens said. "They have an obligation to make this information available."

Mullens said that he and his brother both listened to police radio traffic on a scanner. His brother, a truck driver, often used it to look out for roadside crashes or other traffic-related issues.

The suit's origins go back to Aug. 8, according to city emails, stating that the brothers filed a Freedom of Information Act request to get the "encryption key" to the North Little Rock Police Department's radio traffic, which would unlock officers' communications that would otherwise be unavailable to nonlaw enforcement personnel.

On Aug. 9, the Mullenses also requested "all radio traffic" for an hour of that day.

Two days after that, the Mullenses modified their request and asked to have "access to encrypted radio traffic as it occurs in real time."

On Aug. 12, the requests were denied.

North Little Rock police and emergency communications personnel denied the request, arguing that they were not the custodian of the "encryption key" that would allow access to encrypted radio traffic. The key, according to North Little Rock police officials, is administered by Motorola Inc.

The Mullenses also are not entitled to the "encryption key" because by state law, only law enforcement officers and organizations may possess equipment capable of unscrambling encrypted traffic.

North Little Rock officials also said the Mullenses' request for real-time access to radio traffic is not possible under the state Freedom of Information Act because the law does not require public agencies to produce materials that have yet to be created.

"The FOI does not apply to future records," one official wrote to the Mullens. "It only applies to actual, tangible records that exist prior to or at the time of the FOI request."

Mullens argues that police radio transmissions, which are recorded simultaneously with their broadcast, are a record of performance "and is therefore a public record."

Citing a precedent settled in a 1991 Arkansas Supreme Court case, Hengel v. City of Pine Bluff, the Mullenses' lawsuit maintains that public agencies such as the North Little Rock Office of Emergency Service -- which provides police communications -- are like jails in that they operate 24 hours a day, seven days a week. Since they are constantly operating, there is no official "office hours" and their records, such as book-in histories at a jail, must be open to public inspection, according to the complaint.

Mullens said that his initial requests for copies of encrypted radio chatter were not answered until several days later, which he says violated the state law.

"I think that the broadcast itself is a public record. It doesn't matter when it gets recorded," Mullens said. "This is something the police should make available 24 hours a day, and they're failing to do that."

Officials with the North Little Rock city attorney's office declined to discuss the Mullenses' arguments but said they are confident their denials to the requests complied with state law.

When reached by phone Monday, Little Rock City Attorney Tom Carpenter said if Little Rock hands over recordings of police radio traffic -- let alone access to real-time encrypted traffic -- it could put the city at risk of breaking several privacy laws.

Carpenter said the the city does not have the necessary software to redact sensitive information such as Social Security numbers that come across radio recordings.

Because the city can't redact the audio, city employees would have to transcribe the entirety of radio communications in order to release requested radio traffic.

"That creates a series of problems ... We just can't give you the tape without redactions," Carpenter said. "We're not required to create a document."

When asked about the Mullenses' assertions that police radio traffic should be subject to public inspection 24 hours a day like jail records, Carpenter pointed out that the records of radio traffic aren't capable of being inspected.

In addition to their amended complaint filed Monday against Little Rock officials, the Mullenses also asked for an emergency injunction against the two police departments.

The request for an injunction argues that by encrypting radio traffic, police have "altered" a public record and violated the state's Freedom of Information Act.

It also argues that Little Rock's new police chief, Kenton Buckner, has a demonstrated history of supporting false evidence and withholding information.

A Louisville (Ky.) Metro Police Department detective filed suit in 2012 against Buckner, then an assistant chief at the agency, alleging he was admonished by Buckner and retaliated against after he shared information with the Kentucky Innocence Project that led to the release of a woman who had been convicted of murder.

That suit, according to records, was settled for $450,000.

Metro on 08/19/2014

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