Last October, the city of Lexington sued me in an attempt to keep its “mobile surveillance cameras” secret. In a major victory for government transparency, Fayette Circuit Judge John Reynolds issued an order granting my appeal for summary judgment last week. In simple terms, the judge rejected the city’s arguments for keeping its surveillance cameras secret and ordered the Lexington Police Department to release all relevant records.
My legal saga started last summer. After surveillance cameras appeared in Berry Hill Skate Park, I submitted an open records request to the LPD in an effort to determine what other surveillance programs it operates in Lexington. The police department admitted to using 29 mobile surveillance cameras “available for a variety of video surveillance operations.”
“Cameras are deployed as needed in support of active investigations in accordance with SOP BOI 93-46A, Criteria for Surveillance Conducted by Special Investigations Section.”
While the police department acknowledged the existence of these cameras, it refused to provide any additional information other than redacted documents disclosing costs. The police claimed information about the types of cameras used and the policies surrounding their use were exempt under the state’s open records laws. The LPD cited a statute that exempts certain documents relating to homeland security, along with a second statute exempting certain “investigative reports.”
On appeal, the attorney general’s office rejected both exemptions claimed by the LPD and ordered the city to release the documents.
On Oct. 2, 2017, a constable served me with a summons.
The lawsuit was clearly intended to intimidate me into going away. The initial complaint even asked the judge to award the city court costs. Think about that for a moment. I simply asked for information relating to government activity. In response, the city sued me – a taxpayer – and demanded I foot the legal bill. So much for transparent government that serves “the people.”
It was a shrewd strategy on the city’s part. City officials likely assumed I wouldn’t have the resources to pursue a court case, and I would just drop the matter. They were correct about the first assumption, but fortunately, the ACLU of Kentucky agreed to represent me in this case.
In court, the police basically argued that disclosing information about their cameras would render them ineffective and potentially jeopardize officer safety. It remains unclear how knowing what kind of “hidden” cameras the police own would make them ineffective. They also asserted that providing information about their surveillance activities would create an “undue burden.” In a nutshell, the city claimed that the investigation of crimes facilitated by the cameras constitutes “an important government interest” that warrants denial of the information.
While these may sound like compelling arguments on the surface, the city of Lexington failed to provide any basis for their assertions. Judge Reynolds said the city did not meet the standard of clear and convincing evidence required by the statute.
“In sum, this Court finds that the plaintiff, LFUCG, has failed to assert an applicable provision of the KRS or other binding precedent which would allow the denial of the information requested by Maharrey. Therefore, LFUCG has failed to meet its burden of proof, and pursuant to ORA [Open Records Act] the requested information should be released for review by Maharrey.”
The city will have 30 days to appeal or ask the circuit court for reconsideration. Otherwise, it must release the requested documents.
I’m not particularly comfortable casting myself as a little guy fighting the system. I had some firepower of my own, and fortunately, I had resources at my disposal. I’ve spent nearly a decade involved in activism and had connections of my own that helped me take on the city. Still, I could not have won this battle without the help of the ACLU of Kentucky, and attornies Clay Barkley and Heater Gatnarek. If I had been an average Lexingtonian, the city probably would have gotten its wish. I would have dropped the matter and gone away.
Make no mistake – this is a huge win for the people of Lexington. Those of us who live in this city have a right to know what our government does in our name. We have a right to weigh in and decide whether or not the benefit of surveillance technology outweighs the potential for abuse and violation of our basic privacy rights. We have a right to insist government agencies operate potentially invasive technology with oversight and transparency – in a manner that respects our civil liberties.
Government secrecy steals power from the people. As the saying goes, sunlight is the best antiseptic. The city’s default position was to maintain secrecy, to keep the blinds closed, to slam the door in our face. Don’t let the fundamental nature of what happened to me escape you. When you boil it all down, the city sued me because I asked questions it didn’t want to answer. It kind of makes you wonder about the old adage, “We are the government,” doesn’t it?
Now, hopefully, we will get the kind of transparency we deserve. Whenever I talk about surveillance, people always ask me, ‘What do you have to hide?’ Well, I’ve been asking that question about this city for nearly a year. I don’t think a little transparency and oversight is too much to ask for.
Thankfully, both the attorney general and a circuit court judge agree – we have a right to know how the city is watching us and what steps its taking to ensure our basic privacy rights are protected. Chalk one up for all the little guys and gals in Fayette County.
I started We See You Watching Lexington to establish oversight and transparency of surveillance programs in this city. People shouldn’t have to get sued in order to find out what kind of surveillance programs the city operates. Furthermore, the city should not operate this kind of potentially invasive technology without firm policies in place directing how, when and where it is used, and establishing how information is stored and shared.
We have a plan.
Now we need the Urban County Council to do its job and pass an ordinance to put policies in place that will guide surveillance in the city going forward. We don’t want to wait until the city gets stingray devices that can track and monitor cell phones, automatic license plate readers that can chronicle where you’ve been, more invasive cameras, drones, facial recognition technology and other devices that enable the government to monitor, record and store virtually everything you say and do. We need to act now. Today. Don’t let my legal victory go to waste. If you live in Lexington, call your council member today and demand they pass and introduce our surveillance ordinance. You can download model language here.