The city of Tacoma will pay a $50,000 fine as well as legal fees for violating the Public Records Act by withholding most of a nondisclosure agreement it signed to obtain cellphone surveillance equipment commonly known as a Stingray.
The Center for Open Policing sued the city for blacking out huge portions of the document after the organization requested it in 2014. In an order signed Friday, Pierce County Superior Court Judge Frank Cuthbertson said the city’s redactions violated state law.
He ordered Tacoma to pay $100 a day for every day the city “wrongfully withheld the unredacted NDA from June 21, 2014, until November 3, 2015, when the city provided this record to plaintiffs,” a penalty period of 500 days. The penalty is the maximum allowable under state law.
The city said the redactions were done at the request of the FBI, which requires local law enforcement to agree to keep Stingrays secret as a condition of obtaining one.
“Judge Cuthbertson said that this was a paradigm case in which the city favored its interests in maintaining good relations with the FBI at the expense of the public’s right to open government under the Public Records Act,” said Seattle-based attorney David Whedbee, who represented the Center for Open Policing and co-founder Phil Mocek in the case.
The city also has to pay the Center’s attorney fees, which Whedbee said he hadn’t yet calculated. Acting city attorney Bill Fosbre said the city does not plan to seek reimbursement from the federal government.
Cuthbertson’s order said redacting the NDA was not “essential to effective law enforcement” in a way that would warrant exemption under state law. The city released the redacted document to the Center in September 2014. The News Tribune had revealed the Tacoma Police Department’s use of the Stingray a few weeks earlier, a report later confirmed by the city.
“Thus, any concern for ongoing confidentiality about the TPD’s possession of the Stingray was moot at the time the city produced the redacted documents to the plaintiffs. Withholding the nondisclosure agreement … violated the PRA,” according to the order.
The Stingray is one model of a cell site simulator, which mimics a cellphone tower to trick cellphones to connect with it. Police use the Stingray to track a suspect via his or her cellphone, but it also can gather details of other nearby devices, raising privacy concerns.
Several other lawsuits filed in connection with Tacoma’s use of the Stingray device remain pending.
Public records advocate Arthur West filed a lawsuit in October 2015 contesting redactions the city made to the nondisclosure agreement and other documents he requested. West filed another lawsuit in December contending the police’s device interferes with cellphone signals without a license from the Federal Communications Commission, the federal agency that regulates the use of the airwaves.
Also last year, the American Civil Liberties Union of Washington filed a lawsuit on behalf of four Tacomans — three of them pastors of predominantly black churches — alleging the city had improperly withheld documents and seeking fines.