by Nadia Lopez. Originally published in the Fresno Bee
The Fresno County Sheriff’s Office is being sued for failing to release records about its use of surveillance equipment, location tracking technologies and data collection operations, according to a lawsuit filed last month.
The Aaron Swartz Day Police Surveillance Project, a watchdog group named after the late computer programmer and hacker, filed the lawsuit in November with the Fresno County Superior Court after more than two years of attempting to retrieve documents.
According to the lawsuit, the group made six public records requests between December 2018 and January 2019 over the agency’s use of unarmed drones, license plate readers, thermal cameras, social media monitoring and predictive algorithmic software as well as any potential contracts with federal law enforcement agencies.
For each of the six requests, the group claimed it had sent more than 30 follow up messages inquiring about the status of the documents over that time period, but the sheriff’s office allegedly “failed to comply” to the requirements mandated by the California Public Records Act.
The California law says government agencies must respond within 10 days to notify that a request had been received.
Deputy County Counsel Scott Hawkins said the sheriff’s office has received the requests and is currently “evaluating the claims,” but said he could not provide additional comments.
“I can confirm that certain requests were previously received from the plaintiff and that we have received the suit,” Hawkins told The Bee in a statement. “We are currently evaluating the claims and attached materials and will of course respond at the appropriate time and to any directive from the court. “
The lawsuit claims the sheriff’s office “violated all of its obligations” under state law by failing to provide an estimated fulfillment date on the documents, did not acknowledge or respond to their requests within the 10-day time period, or disclose whether the documents even exist.
The Fresno County Sheriff’s Office did not respond to questions about whether the records in question exist.
“This is a situation where the clients sent multiple reminders over the course of the last two years and none of those reminders or follow ups resulted in production of the records, so now the clients have filed a lawsuit to enforce their right and the public’s right to these records under the law,” said Abenicio Cisneros, a lawyer representing the group. “These records will give insight into how the county sheriff is utilizing new technologies to surveil the public.”
Cisneros said government agencies could fail to disclose records for various reasons. Sometimes an agency has a “good faith belief” that a record does not need to be disclosed, he said, or it simply did not prioritize or put enough resources to respond to the request. And in other cases, an agency does not follow the law because it is trying to keep records secret if it does not want the information to be seen by the public.
Despite the reasons why an agency may not fulfill a request, Cisneros said the important thing is “not necessarily the motivation of the agency,” but that the agency complies with the law.
“The law favors and encourages these lawsuits because the courts and the legislature recognize that it’s to the public’s benefit when there’s an enforcement mechanism to encourage public agencies to be transparent,” Cisneros added.
Tracy Rosenberg, the group’s co-founder who also serves as the executive director of the advocacy organization Media Alliance, said they have obtained and published documents from various law enforcement agencies across the state, including in Sacramento, Los Angeles, San Diego and Imperial counties.
Most recently, the group filed a lawsuit against the Sacramento County Sheriff’s Office for also failing to release public records and successfully retrieved them. Often, she said, law enforcement agencies tell the public they are using surveillance technology like drones for a specific purpose, but documents show they actually use it for something else.
“When police departments talk about drones, they often talk about rescuing people and fire department use, which are uses that most of us would consider to be somewhat reasonable for this equipment,” she said. “But when you take a look, you discover that drones are used far less frequently for search and rescue type activities and far more frequently to surveil the public.”
This could be a problem, she said, because law enforcement funds its activities with public dollars. When police departments go to the City Council or when sheriffs go to the Board of Supervisors and ask for funding to buy drones, she added, they often say it’s for search and rescue, but records frequently reveal the equipment is hardly used for that purpose.
“What kinds of surveillance equipment are in use throughout the state and what policies govern and control their use is really a matter of broad public interest,” added Rosenberg.
For counties with large immigrant communities, like Fresno, this could mean law enforcement is using the technology to track undocumented residents.
Other advocacy groups have raised concerns that if local law enforcement shares that data with federal immigration authorities, it could play a huge role in deporting immigrants and potentially violating Fourth Amendment rights, as a recent ACLU lawsuit against the U.S. Department of Homeland Security claims.
“One of the most common and problematic issues when you look at surveillance throughout the state is data sharing with federal immigration authorities and also the use of surveillance type software to look at protests, demonstrations, rallies and other kinds of activity,” Rosenberg said.
Rosenberg said they are “pretty confident” any municipal sheriff’s department in a large city or county like Fresno would have information on the use of surveillance activities.
It is unclear though when the sheriff’s office will address the claims in the lawsuit.
“Unfortunately at this time, that’s as far as I can go,” added Hawkins. “We generally do not comment publicly on pending litigation matters, particularly at this early stage while a matter is still being evaluated.”