Capital News Service

of the Michigan State University School of Journalism

ACLU claims State Police should release documents

By SARA QAMAR

Capital News Service

LANSING – More than 70 Freedom of Information Act (FOIA) requests by the American Civil Liberties Union for State Police documents related to cell phone privacy were denied over the course of three years, the ACLU says.

To receive copies of the documents, ACLU said the State Police wanted a $544,680 fee.

“Until you can explain to me and satisfy me to justify paying that much, then it’s wrong for them to demand that,” ACLU Michigan racial justice staff attorney Mark Fancher said.

However, State Police public affairs officer Tiffany Brown said the cost of complying with the request reflected the amount of labor required to compile the documents.

“The request that was submitted was broad in scope and would require State Police to look back at five years of information. It would take several employees working fulltime hundreds of hours to assemble,” she said.

When the ACLU asked for documents pertaining to different periods of time, the State Police have responded that the requests were either too wide in scope or that the devices were not used in that narrow a time period inquired about, he said.

“In conversations with them we’ve been convinced that there hasn’t been much cooperation on their part,” he said.

The State Police said the department first acquired devices able to extract text messages, contacts and other data, including previously deleted information, from cell phones and smartphones in 2006.

“According to the manufacturer, these devices are capable of giving you a printout of instances of usage. It’s not that they have to go through stacks and stacks of files. They can just go to the devices and print it out. It shouldn’t be a major project, and if it is, then they need to explain it,” he said.

The State Police has made it difficult for ACLU to acquire the information, Fancher said. “I don’t think that’s what FOIA was intended to be about.”

FOIA expert Dawn Hertz, an Ann Arbor lawyer, said that in her 30-year experience, the department has a “reputation of being difficult when it comes to responding to FOIA requests.

But, she continued, “In their defense, the State Police gets and inordinate number of requests.”

Hertz said the FOIA exempts from disclosure documents that interfere with a criminal investigation, but she is unsure whether that exemption would apply to the ACLU’s requests.

FOIA also requires public agencies to keep information in a form that allows easy responses, she said.

“If they’re asking for over $500,000, then they’re not keeping them in a form that would be easily FOIAed. The ACLU is a responsible entity that knows what the law is. It’s unfortunate that State Police doesn’t seem to want to work them,” she said.

“What disturbs me about this particular situation is that the first thing FOIA tells State Police to do is look at the public interest. And if there’s a public interest, then they’re not supposed to charge a fee,” she said.

Fancher said one thing the ACLU wants to examine in the documents is the proportion of times the devices have been used to extract data from cell phones and smartphones belonging to racial minorities.

“Frequency of contact with people of color versus whites is higher historically. If there’s disproportionate contact with them, then there’s a higher possibility that they will be searched,” he said.

The ACLU says law enforcement officers can use the devices to extract data without owners of phones knowing. Thus, the devices could be abused during routine stops, the group says.

But the State Police deny that practice, saying its troopers use them only after a search warrant is obtained and that the devices can’t be used in the way the ACLU claims.

“They very well might be legitimate law enforcement tools. Our interest is only to confirm through documents that they’re using them in a lawful way,” Fancher said.

Brown of the State Police said, “We’ve had these devices since 2006, and we’ve never been accused of any wrongdoing. We don’t have any citizen complaints and we’ve never been involved in a lawsuit with these devices.”

Fancher said the ACLU would like to determine whether law enforcement officials are violating the Fourth Amendment prohibition against unlawful search and seizures, he said.

“Pretty much anything in a cell phone is out of the public’s view. People store all types of things in there — passwords for accounts, social security numbers and all types of data they don’t want people to see,” he said.

In a recent House Committee hearing on the devices, State Police officials said they were being used only in high-level crimes and that its devices are primarily used in office settings.

The officials agreed with representatives that it’s necessary to have a standard procedure for using the devices.

© 2011, Capital News Service, Michigan State University School of Journalism. Not to be reproduced without permission.

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