Official aims to merge suits on encryption

City attorney: Cases raise same information-law issue

Correction: Robert Steinbuch is a law professor at the University of Arkansas at Little Rock’s Bowen School of Law. His last name was misspelled in this story.

When the Little Rock Police Department decided to go forward with encrypting its police radio frequencies, thereby cutting out the public's ability to monitor day-to-day conversations in the department, officials said they expected some blowback.

But they didn't expect a lawsuit, let alone two, department spokesman Lt. Sidney Allen said.

"We anticipated that there'd be some hobbyists and few people that wanted to listen to the radio; we anticipated some issues," Allen said. "As far as lawsuits, we were hoping [resistance] wouldn't rise to that level."

The Little Rock Police Department has been sued twice since they switched their radio traffic into an encrypted format July 31, and in both cases the city is accused of not complying with the state's Freedom of Information Act by not allowing public access to police radio traffic.

On Thursday, Little Rock City Attorney Tom Carpenter said he intends to request that the two cases be merged, arguing that the Freedom of Information cases filed against the department ultimately face the same issue: whether agencies are compelled under state law to release redacted recordings of police radio traffic.

The first lawsuit, filed on behalf of two Sherwood brothers -- Jeremy and Brandon Mullens -- wanting real time access to police radio recordings, was initially filed against North Little Rock on Aug. 15 and amended to include Little Rock police and city officials as defendants.

The second, filed Aug. 22 by Sebastian Westerhold, accuses Little Rock of violating Freedom of Information laws because it denied a request for a single hour of recorded radio traffic.

Before Little Rock began encryption and North Little Rock encrypted its radios in January, anyone with a police scanner could listen in real time to law enforcement matters.

Scanner-junkies and media members could hear where crime was happening or suspect descriptions, as well as driver's license numbers and Social Security numbers that were being broadcast over the air.

Carpenter said that Social Security numbers, driver's license information and several other details that are a part of the day-to-day information flow of law enforcement are not releasable to the public.

Both police departments' radio chatter, including the discussion of sensitive information, is recorded.

As a result, neither agency can release those recordings without redaction, Carpenter said, lest they break several privacy laws in the process.

"We don't put [sensitive information] on open airwaves. People find a way to listen to them. Scanners are intercepting something that's out there," Carpenter said. "That's the difference. ... [If the city provided recordings with sensitive information], I think the city is the actor at that point, and that's a concern."

In the suit filed solely against Little Rock, Westerhold first asked for access to the department's "encryption keys," software information that could unlock or decrypt the radio traffic.

The request for a key was denied by the department, which cited a state law forbidding those outside law enforcement from possessing encryption software capabilities.

The request for the recording was also denied citing an exemption from the state's Freedom of Information Act that says public agencies aren't required to "create" a new document.

When Little Rock began encrypting its police radio, Carpenter initially thought the city had the necessary software to easily redact sensitive material from recordings that could be quickly handed over to the public if requested.

But not long after police radio was encrypted, Carpenter learned that they had no such software and that any recordings released would have to be manually re-recorded in a labor-intensive process that, he contends, constitutes the creation of a new document.

"If we automatically made transcripts of everyday [radio recordings] for the whole day, then redacting out that information and running another copy is nothing unusual," Carpenter said. "But that's not what we're being asked to do here."

In North Little Rock, redacted copies of police radio transmissions are available, according to City Attorney Daniel McFadden, who declined to comment on what action North Little Rock would take if Carpenter tries to merge the two cases.

Westerhold argues that the redacted recordings don't qualify as documents "created" by the agency but, rather, merely as information that the public has the right to review.

In his complaint against Little Rock, Westerhold said the city's Police Department failed to demonstrate that all of the information he requested was protected by privacy exemptions.

He then went on to summarize Carpenter's arguments, as well as the Police Department's inability to provide redacted recordings, to be a "pitiful admission" of its "inability" to fulfill its "mandated functions" as a public agency.

"Radio recordings have [historically] been considered [releasable]. [Case law] says very specifically that departments need the right software to be able to release redacted [recordings]. That's the main reason they can't [comply] is because they don't have the software," he said.

Westerhold added: "I think they're actually committing a criminal offense by negligently and intentionally violating the Freedom of Information act."

Westerhold isn't alone in his assertion that Carpenter and the department are leaning on arguments that run contrary to the law.

Robert Steinruch, a faculty member at the Bowen Law School at the University of Arkansas at Little Rock and a Freedom of Information expert, said a lack of technology -- or in this case the absence of software that could easily redact the radio recordings -- is no excuse to withhold information from the public.

"They do have the technology," Steinruch said. "It's called a tape recorder. They just have to play the tape. When they get to a part that's exempt, they turn it off and [turn it back on] when it gets back to a part that's not exempt."

The difference in interpretation, Carpenter said, comes from a "20th century" set of Freedom of Information laws operating in a new, digital age.

"It was really written for paper and not for this modern age," Carpenter said. "Where do you stop with [the need to provide copies of documents]? Is the government required, in order to be accountable, to hire people who do nothing but make tapes of what was recorded the day before?"

The case facing both cities, the one filed by the Mullenses, already had a preliminary injunction hearing Thursday but was continued, to convene again Sept. 17.

A date for a hearing has not been set for Westerhold's case, though Westerhold intends to have his lawsuit tried separately from that of the Mullens brothers.

Metro on 09/02/2014

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