Watchdog

Tacoma hit with $300,000 fine for improperly withholding records about surveillance device

A Pierce County judge has ordered the City of Tacoma to pay nearly $300,000 in penalties and fees for violating the state's Public Records Act regarding documents dealing with a police surveillance tool called a cell site simulator.

Superior Court Judge G. Helen Whitener ruled earlier this year that the city improperly withheld 11 documents from the American Civil Liberties Union. On Monday, Whitener issued a ruling tallying the cost:

$182,340 for violations of the Public Records Act.

$115,530 for attorney fees and other costs.

Whitener said in her ruling that the city deliberately withheld several documents that should have been provided, including spreadsheet with entries that included cell site simulator uses, records provided to 37 prior requestors and emails between the city and the FBI.

City spokeswoman Maria Lee said via email, "The city attorney's office is currently reviewing the opinion and will provide comment once that review is complete."

John Midgley, a staff attorney with the ACLU, said the group celebrated Whitener's ruling because of its implications for transparency.

"This case isn't about money," he said. "The court found that transparency was important and accountability was important."

The ACLU filed the document requests on behalf of African-American community leaders in Tacoma regarding the device, commonly called a Stingray, which police use to locate cell phones.

The city lost the case earlier this year.

A cell site simulator mimics a cell phone tower with a strong signal. All nearby devices — not just the target's phone — are compelled to connect to it.

The device's use in Tacoma was first reported by The News Tribune in 2014. The city fielded dozens of records requests from the newspaper, other media outlets and interested people regarding the device and its use.

The city's response to the records requests, Whitener wrote, "resulted in delayed responses, lack of compliance with (Public Records Act) procedural requirements, showed a lack of proper training and/or supervision, negligence, and unreasonableness in any explanations given for noncompliance."

"The penalty awarded in this case is an amount necessary to deter future misconduct when considering the city's agency size and the facts of this case," the judge wrote.

The plaintiffs did not file their request for the documents until after the state Legislature in 2015 unanimously passed a law that prohibits law enforcement agencies from using the device without obtaining a warrant. The law also requires police to tell judges how they will use the simulator in specific cases.

Among the records requested were minutes from a group called the Citizen Review Panel, now called the Citizen Police Advisory Committee. The volunteer board oversees Tacoma Police Department policy and reviews residents' complaints.

The city did not provide the minutes, and told the court the documents were online and "easily obtainable by any member of the public by doing a simple Google search."

Whitener said the city's approach to the document request was "troubling in many regards."

"This response by the city is the most troubling and runs afoul of the PRA (Public Records Act)," the judge wrote, adding that putting the document online does not relieve the city from following the law. "… at a minimum the city is required to inform the requestor of where it has placed the requested documents."

That decision cost the city $77,760.

In its arguments to the court, the city said that even had it provided the documents, their disclosure would not "further that public interest in any way." By the time it received the plaintiffs' request, the city said, it had responded to more than 30 other requests, including from The News Tribune and The Associated Press.

"In fact, the local newspaper had already retrieved and publicized almost all of the documents at issue," the city told the court.

The judge found the city did not even disclose the existence of some documents.

"They have to tell you what they have and say why they are holding it back," said Midgley, the ACLU attorney. "We got them later through other means."

Monday's ruling "is a win for everyone in Washington who believes police must be accountable to the people they serve,” Elder Toney Montgomery, one of the plaintiffs in the suit, said in a statement from the ACLU.

“For people in communities of color especially, police surveillance is a critical issue — our communities have long been disproportionately targeted for surveillance," said Montgomery, a spiritual leader at Father's House Church and serves as chairman for the Tacoma Ministerial Alliance.

"Today’s decision shows Tacoma must respect our right to know what kinds of surveillance our public servants are doing and for what purpose.”

Other plaintiffs included the Rev. Arthur C. Banks, pastor at Eastside Baptist Church; and Hilltop resident Whitney Brady.

Toby Nixon, president of the Washington Coalition for Open Government, said, "I'm impressed with the thorough analysis and (the judge's) recognition of the damage to future access that Tacoma's position would produce if allowed to stand and not adequately deterred through penalties."

The plaintiffs intend to use proceeds from the case to further police accountability and transparency in Tacoma, according to the ACLU.

Kate Martin: kmartin@thenewstribune.com, 253-597-8542
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