Tacoma could owe hundreds of thousands of dollars for withholding surveillance tech records

The city of Tacoma could be on the hook for hundreds of thousands of dollars in penalties and fees for withholding documents in a long-running court case regarding surveillance equipment owned and operated by the police department.

Pierce County Superior Court Judge G. Helen Whitener ruled last month that the city had violated the state Public Records Act in withholding documents sought by the American Civil Liberties Union regarding how police use its cell site simulator, also called a Stingray.

What remains is to tally up the penalties and attorney fees.

More than two years ago the ACLU sued the city on behalf of four residents for access to records about the device, which police can use to find a person by the cell phone they carry. The simulator mimics the strong signal of a cell tower, compelling all nearby phones to connect with it.

Whitney Brady, one of the four plaintiffs suing for the documents, said a level of accountability is required when police use invasive technology that affects more than just the targets of investigations.

"The police, as a citizen of Tacoma, they work for me," he said. "When they use this type of technology I want to know. I've been asking for these documents I expect them to give them to me."

The city lost in two prior court cases when sued for access to documents about the Stingray. This is the third.

Attorneys for the city and for the ACLU union met in court Thursday to debate how much the city owes. A ruling could come in June.

The ACLU is asking for $218,020, plus an additional $130,664 in attorney fees. State law allows judges to grant penalties of $100 a day when cities break the open records law. At issue are 11 documents improperly withheld for more than a year.

City Attorney Margaret Elofson said the city owed less than $10,000 in penalties for withholding several records, and a lower amount than the ACLU requests for attorney fees.

ACLU attorney Lisa Nowlin said the organization is seeking other documents the city has failed to provide, including data on the cell site simulator.

She said the ACLU's research indicates the data can be exported from the device into formats usable for data analysis, including spreadsheets and databases.

"Our experts have shown they were able to easily export data and these records have not been provided," she said.

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Elofson said city workers did an adequate search and did not find the documents.

"The Public Records Act does not require an agency to search for speculative documents that the plaintiff believes may exist, but which the agency stated do not exist," she said. "… The Public Records Act requires us to search where documents are reasonably likely to be found, not every nook and cranny. Not every place they could possibly be searched."

A News Tribune investigation revealed in 2014 that the police department had a Stingray and had used it hundreds of times since acquiring it in 2008.

Judges were not told how police were using the technology, either. As a result, police changed how they sought permission to use the simulator in investigations.

The next year, Gov. Jay Inslee signed a bill that requires warrants for using the technology. Police also must tell judges when they plan to use a simulator.

Police initially refused to disclose much to The News Tribune about the technology, and later said they were prevented from doing so because the city signed a nondisclosure agreement with the FBI.

The city previously lost on another records case involving the Stingray. It paid a $50,000 fine plus legal fees to the Seattle-based Center for Open Policing after blacking out much of the nondisclosure agreement between the city and the FBI.

The city also paid $44,000 to another open records requester because of Public Records Act violations regarding the nondisclosure agreement.

Years later, the city has continued to stonewall the ACLU on other documents related to how the police use the device, Nowlin said.

Use of the specific simulator called a Stingray has waned since the police acquired it 10 years ago, she said after the hearing.

"We know it was only used once in 2017," Nowlin said. "The concern with that is that they might have a new device that we don't know about and that that's what they are using."

Kate Martin: kmartin@thenewstribune.com, @KateReports