The alphanumeric data produced by automatic license plate readers (ALPRs) when they record a hit of a vehicle driving by are likely not protected from Freedom of Information Act (FOIA) disclosure because they would reveal law enforcement investigatory techniques. The Freedom of Information Commission (FOIC) reached this conclusion last week in a complaint that I brought against the Manchester Police Department nearly a year ago.

But, it’s a somewhat hollow victory because even though the ruling went in my favor, Manchester PD’s deletion of the records I was seeking means the case will be re-litigated, and I won’t be receiving them any time soon.

For over a year, I’ve been cataloguing and seeking records about what kind of information is collected by ALPRs. ALPRs are cameras, either fixed to a stationary point or mounted to a police car, that passively and constantly scan every vehicle that drives by, capturing information about where and when a vehicle passes, its license plate, make and model information, and in some systems even determining whether it has bumper stickers.

Though advocates for the use of ALPRs argue they can help more quickly solve crime, detractors argue ALPRs are warrantless surveillance. And they’re being increasingly rolled out in communities across the state and in the nation, often with little public input or oversight.

The public clearly has a right to know what data ALPRs are collecting and how that data is being used and accessed. But that’s very hard, which is why last year I filed a series of FOIA requests for ALPR data with any town or public university that was using an ALPR system.

Not all towns are using Flock, but it’s one of the big purveyors. A number of towns in Connecticut use them, and the arrangement is strange. While police use the cameras to collect data, the database it’s uploaded to is managed by Flock. Data is auto-deleted 30 days after it is captured.

Both of these elements complicated my FOIA requests, which had a broad range of responses. Some towns turned data over without a fuss, some maintained the data I was looking for didn’t exist because it’s not theirs but Flock’s, but did work with me to turn over a summary of data. But the vast majority of towns either denied the request or still haven’t responded to it.

Manchester PD told me the records were for law enforcement purposes and exempt from FOIA. That’s not a real FOIA exemption, and when I pushed them for one, they still didn’t really comply, citing Sec. 1-210(b)(3) of the general statutes. That is what’s generally referred to as the law enforcement exemption, but it has several different provisions in it. Manchester PD should have cited one of them, but didn’t.

I filed a complaint with the FOIC because I don’t see how any of the law enforcement exemption’s provisions apply to ALPR data. As advocates of ALPR use claim, there’s no specific identifying information in the data it collects. While the data collects license plates, it does not record who is driving a vehicle.

The database itself is used for investigatory purposes, but its existence by itself reveals nothing about active police cases or how they’re being investigated. Manchester PD testified at a hearing on my complaint essentially to this effect.

They argued in part that they hadn’t bothered to fulfill my request because it would have been too burdensome, testifying at the hearing that their ALPR cameras collect so much data in a given day that it would be impossible for them to download all of it in a day.

The FOIC found Manchester’s handling of my request violated FOIA. They never contacted me to ask if the request could be narrowed. Though they argued the request language was too vague to understand, they never contacted me about that either. And they allowed the records I requested to be purged from their system after 30 days, despite them being the subject of a FOIA request.

The FOIC also found that Manchester’s arguments that disclosing the ALPR records would reveal investigatory techniques was not likely to be true.

But here’s the frustrating part: because those records were deleted and not available to review in the case, they can’t say that for certain. And that means, even though my complaint was decided in my favor, I’m unlikely to receive responsive records any time soon.

At the meeting where the FOIC voted to adopt the hearing officer’s report, Manchester PD did not contest the hearing officer’s decision or make any arguments in their favor. Instead, they indicated the case would be re-litigated and they’d have more to say then.

Because the FOIC did not issue a definitive ruling on whether the exemption Manchester PD was claiming applies, they can deny the follow-up request I’ve already filed on the same grounds. This time, they’re required to reach out to Flock to figure out how to extract responsive records. Manchester PD has already indicated it’s done this in a response to my follow-up request filed before the commission’s final decision was reached. And they’re required not to delete the records that are the subject of my request.

But once those elements are met, they can cite the same exemption and I have to go back to the FOIC and re-argue the case again on the same merits.

The FOIC’s position is understandable. Without reviewing the records, they can’t determine what exemptions actually do or don’t apply.

But it’s still incredibly frustrating. This is a project I’ve been working on for over a year and haven’t been able to publish a story about because I’ve been waiting for that decision. In the meantime, other news about ALPRs is being broken and written. Re-litigating the case is also going to expend more taxpayer resources.

An on-the-merits ruling about the exemption from the FOIC also gives me the leverage to go back to other police departments that have either denied my requests for ALPR data or left them in limbo and demand those records be disclosed.

The good news is that the FOIC did add an order to their final decision that allows me to appeal a subsequent denial of my follow-up request for ALPR data from Manchester PD as a violation of their orders in my complaint. Should Manchester PD deny my follow-up request on the grounds the data is exempt from FOIA under the law enforcement exemption, I’ll be able to go through an expedited process with the FOIC.

But, in the meantime, I’m back in the same position I’ve been for the past year: hurry up and wait. I do not know if Manchester PD intends to deny my follow-up request or if they’ll be appealing the FOIC’s decision, but they have a 45-day window to appeal. And during that time, nothing is likely to happen. The FOIC generally doesn’t respond to appeals that an order has been broken before that 45-day window has expired. That means Manchester PD can sit on my follow-up request until then.

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