Roanoke City Circuit Court has ruled in favor of Cardinal News Executive Editor Jeff Schwaner in a declaratory judgment to be filed in Roanoke City Circuit Court.
In an April 14 letter to attorneys previewing the ruling, Judge Leisa Ciaffone finds the city of Roanoke in violation of the Freedom of Information Act and requires them to fulfill a renewed request for Flock footage of Schwaner’s vehicle.
The ruling dismisses all the arguments made by the city for not fulfilling the FOIA request. “The court finds that Mr. Schwaner has substantially prevailed on the merits and grants his reasonable attorney’s fees and costs associated with this action.”
Judge Ciaffone did not find that the city “willfully and knowingly” denied the request in a way that would make it subject to additional penalties that can be assessed when FOIA is violated.
The judge directed John Koehler of James Steele PLLC, Schwaner’s attorney, to prepare an order for endorsement by counsel for the city of Roanoke and counsel for Sheriff Matthew Ward of Botetourt County. Once filed, the ruling can be appealed within 30 days.
While the judge’s ruling was narrow — “whether LPR or Flock data covered by the Agreement that is requested under FOIA on a single occasion by the joint owners of a motor vehicle is a public record available to the people who own the vehicle, and, if so, whether an exception to FOIA request can be claimed” — it did conclude that LPR data in the Flock system is covered by FOIA and therefore subject to request under the act.
Koehler told Cardinal News, “We are pleased with the Court’s ruling that the City was required to release the data. Transparency in government gathering of data about the public is necessary to assure that the benefit that can be derived from the effort is worth both the expense and the impact on the community.”
“At the core of this request was a single idea: that the public has as much a right to know what’s going on in public as anybody,” said Schwaner. “In their collection of non-investigative data in public spaces, the police in this case were saying, ‘Not only do we have more of a right to know what’s going on in public than you do, we even have more of a right to know what you’re doing in public than you do.’ It didn’t make any sense. I’m glad the ruling came down in our favor.
“Any citizen could duplicate this request for their own vehicle to get a custom version of where and how they are being captured by this public-facing tech,” said Schwaner. “Since such a search takes about 10 seconds by the city’s own admission, and in a world where suddenly we’re accepting such a high level of non-investigative blanket surveillance and trusting our police not to abuse their ownership of that data, it’s not an unreasonable request.”
The drive that launched a court motion
On February 13, Schwaner drove 300 miles across Southwest and Southside Virginia, passing through Roanoke, Danville, Martinsville, Staunton and Lynchburg and the counties that connect them.
Previous Cardinal News reporting depicted the widespread use of public surveillance technology, like license plate readers deployed by Flock, across the region.
On Feb. 21, Schwaner requested Flock LPR footage of his car from Roanoke police. He filed the same request for 15 other law enforcement agencies.
The city, with one day left on its extension to respond to the request, filed a motion on March 10 for declaratory judgment against Schwaner in Roanoke City Circuit Court, asking the court to decide whether it was obligated to provide the footage under the Freedom of Information Act.
A hearing originally scheduled for March 20 was delayed until April 1.
Judge dismisses one plaintiff, rules on declaratory judgment
The judge ruled that FOIA law trumps both local policies and contracts that localities may have with third parties like Flock Safety, which provides the license plate reading hardware and maintains the data.
The court declined to address the issues brought by Ward, as the 23rd Judicial Circuit does not include Botetourt County.
The judge ruled that motions for declaratory judgment regarding FOIA requests had been made in Virginia in other jurisdictions and that the motion was therefore appropriate.
The ruling notes, though, that the delay caused by the motion effectively ran out the clock on the specific data requested by Schwaner on Feb. 21.
Because the delay led to the destruction of the requested Flock footage, judge ruled Roanoke had denied the FOIA request
Flock LPR data is erased after 30 days, if the data is not compiled in a report to be used by the police department. The city of Roanoke took its initial allowable days to respond to the original request, then claimed an extension, allowable by FOIA law, then filed its court motion with one day remaining on the extension. The court ruled that because the requested data was not retrieved from the database before then, “its production is impossible,” and so ruled that the request “was denied for all practical purposes, because the records he requested were purged by the system.”
She also noted that the city’s request to have additional time to respond could be granted only “when a FOIA request seeks an extraordinary volume of records or requires an extraordinarily lengthy search.” The city’s witness, Andrew Reece, senior crime analyst with the Roanoke Police Department, testified in the April 1 hearing that the requested search would take “about 10 seconds.” So, no additional time was granted.
“To the extent that Defendants want a LPR Flock search at this time, upon request, the City will provide it,” the judge wrote.
Schwaner said such a request is forthcoming.
Judge rules the requested Flock footage is not investigative in nature
Police data that is part of an active criminal investigation may be withheld from the public. It’s a deference granted to law enforcement that can be wielded in a variety of ways when dealing with requests for information. The judge decided that was not relevant in this case. “The data requested by Defendants was not part of an active criminal investigation.”
This ruling is echoed in the dismissal of another argument by the city regarding a local policy that tries to define all Flock footage as investigative.
Running a report from the Flock database does not constitute creating a ‘new record’ under FOIA
In order to obtain the data that Schwaner had requested, the Roanoke Police Department would have to run a report on a specific license plate number. The city argued that this constituted creating a “new record” and that FOIA protects an agency from having to do so. The court ruled otherwise. “The court holds that simply running the report to compile the raw data already existing is not a new record for the purposes of FOIA.”
Lynchburg and Campbell County had denied the request based on this reasoning. As agencies outside the jurisdiction of the circuit court, they are not held by the court’s ruling.
However, another agency outside the court’s jurisdiction, the Rockbridge County Sheriff’s Office, which was following the case, made the decision to comply and run its search on April 15, one day after the judge sent her ruling to counsel.
Local policy, third-party contracts, cannot restrict the flow of information available under Freedom of Information Act
Next, the ruling stated that neither local policy nor third-party contracts can create additional restrictions on public information. The judge ruled that any local policy, “to the extent that policy prevents the Roanoke Police Department from releasing documents that would otherwise be obtained in a FOIA request,” is void. The ruling states, “Local policies, however prudent, must bend to the requirements of the Act.”
According to the ruling, “The Agreement between the City and Flock specifically contemplates that the City must be allowed to comply with the Virginia Freedom of Information Act. The court finds therefore, that the City’s concern over violating the contract or federal copyright laws in order to comply with FOIA is unfounded.”
No ruling on releasing footage shared by other agencies
The original request asks for all footage that the agency can find in a search of the plate number, including footage obtained from agencies sharing their Flock information with the requested locality.
Staunton complied fully with the request, providing footage showing that Schwaner’s car was captured by cameras in Lynchburg and Roanoke.
Martinsville provided footage only from its own cameras.
The judge chose not to make a ruling specifically requiring or exempting this footage from a FOIA search.
The judge wrote, “If the records of another agency are in the database accessible by Roanoke City, it could be said that those records are ‘in the possession of’ Roanoke City. However, the court could not determine this information from the record.”
Privacy issue ruled on narrowly; judge found no other exemptions or discretionary release exclusions
During the hearing, Ciaffone raised the question of what counts as personal information — if LPR data tells the license plate number, date, time and location of a person, is that a privacy violation? She also questioned whether Schwaner or others seeking this kind of data could use it for purposes that would threaten others’ privacy or security.
The defense argued, according to the statute, the data is not identifying information, even if it could be used in conjunction with other data to find identifying information.
The court ultimately ruled that Roanoke violated the FOIA statute by failing to provide Schwaner with his own LPR Flock data after obtaining the consent of the vehicle’s co-owner and Schwaner’s wife, Mary Winifred Hood Schwaner, who was also named as a defendant in the suit.
“It is not unlawful to access ‘identifying information’ with the permission of the ‘person or persons who are the subjects of the identifying information,” Ciaffone wrote.
None of Roanoke’s named exemptions to providing the data were appropriate, according to the ruling, and the judge found no other exemptions in FOIA law that would be appropriate in this case. “The City of Roanoke has not pointed to any other exemption not discussed herein, and the court does not see any exemption or nonmandatory disclosure cited in 2.2-3705.1 or 2.2-3705.2 that would apply.”
‘Appropriate balance’ and another drive
The city of Roanoke will not incur further fees or penalties because the court decided they did not willingly or knowingly deny the Freedom of Information Act, but rather sought guidance on their reasons for potential denial of a request. “[Their] reasons were ultimately not accepted by the court, but they appear to have been made in good faith and the court cannot say their denial was willful or knowing.”
“The Court struck an appropriate balance in this case and we hope that the other jurisdictions that were watching the result in this case will take note and be more respective to FOIA requests in future,” said Koehler.
Cardinal News continues its series on public-facing surveillance tech. Schwaner says he’ll be requesting Flock data from the city: “No reason I can think of for delay this next time.”
The city will have 30 days to appeal the ruling once it’s filed.
