As we mark Sunshine Week, here’s a look inside how we gathered information for ‘State of Surveillance’

Happy Sunshine Week. This is the time set aside each year to raise awareness around the need for open government and our right to know what the government is doing.

Ironically, we were set this week to go to court to defend this fundamental right, but a hearing over a request our executive editor made under the Virginia Freedom of Information Act has been delayed until April.

FOIA — or “foy-a” as it is often called — is at the heart of what we do every day. Most requests are informal and are fulfilled without fees. They can run into hundreds or thousands of dollars, and, as is the case with our State of Surveillance project, can end up in court and involve attorneys.

What is important to understand about FOIA laws is that they start with the premise that the government is for and by the people and that the people have the right to view meetings and records to understand not just actions by governments, but the deliberation processes leading to actions.

The rather simple concept gets complicated quickly. To illustrate how complicated, and how different agencies handle the exact same requests, I’d like to share a story that began last fall.

During one of our afternoon check-ins late last year, Cardinal editor Jeff Schwaner told me about a project the news team was planning. A technology company was providing license plate-reading surveillance cameras to local law enforcement agencies across Virginia that capture images of every vehicle passing by and then store the vehicle’s fingerprints.

Who’s paying for the technology? How exactly are law enforcement agencies using it, and who is aware that they are doing this? Where are these cameras located? What is their purpose? Who can access the information? Who owns the information? How is this information used?

While you might be comfortable knowing that your neighbor’s Ring doorbell watches your comings and goings or that Kroger’s camera monitors your path down the wine aisle, this is much more comprehensive. This connected network of surveillance cameras can trace your movements across places and store that data — and the information can be searched and used without oversight.

The more Jeff and I talked about this, the more questions we had. We sought to add a layer of transparency to this network.

In December, our reporters divided up a list of 61 law enforcement agencies and worked the phones, asking each agency if it used public-facing surveillance like license plate readers. If they told our reporters yes, we then asked for costs, contracts and information on how the technology was helping to decrease crime or nab suspects.

The reporters followed through with written requests for the records. Some agencies promptly provided all information; some asked for more time.

Eventually, most agencies provided the information without charge. Six invoked their right under Virginia’s Freedom of Information Act to charge “reasonable” fees. For Amelia County, that fee was $10, the lowest, and for Botetourt County, it was $104, the highest.

At Cardinal, our reporters scour government documents every single working day. Many are provided free online, and our reporters this week have shared some of their favorite online sources.

Other records, upon request, are delivered freely over email. Some agencies require formal, written requests. They then estimate how much it will cost them to produce records and require a downpayment in advance. Virginia Tech last year charged us $1,182 upfront for records but then refunded $493.

With FOIA, the key is to craft the request in a direct, narrow form so that an agency can comply and will yield the documents that you seek. At times, one batch of records leads to the need to go back and seek others.

Or, as is the case with our State of Surveillance project, we knew that there would be a series of stories to come after laying the foundation of who was using this technology and who was providing it.

One of those stories centers on whether anyone, including John Q. Driver, could cobble together a history of where a person had been by querying the data captured by the license plate reader technology.

To find out, Jeff left his home in Staunton and drove through Cardinal’s footprint, visiting with reporters in Roanoke, and stopping in Martinsville and Danville before looping through Lynchburg.

He then requested from 15 law enforcement agencies pictures of the back of his car that were captured by the automated license plate readers.

The requests were uniform, but the responses splintered in many directions.

• Nine agencies complied with the request. Staunton gave Jeff pictures of his car not only traveling through that city but also in Roanoke, Lynchburg and Martinsville, locations that share their data with Staunton. Martinsville gave him information only from its city. Others said they had no record of his car or didn’t use the equipment. One, Henry County, volunteered that while it didn’t have the cameras, he should check with neighboring counties that share their data. One asked his purpose to find out if he had nefarious intentions. Jeff didn’t, but that doesn’t really matter. An agency doesn’t have the right to know why you want information.

• Rockbridge County, as is its right under FOIA, asked for seven additional work days to comply. That deadline passed. When Jeff contacted them again, a Rockbridge lieutenant replied, “It is my understanding your legal counsel agreed to an extension until 5 days after the Roanoke Circuit Court enters its order.” No such agreement was offered.

• About that court order. Two localities — Roanoke and Botetourt County — claimed that giving Jeff what he asked for would cause them to commit a crime. They filed with Roanoke Circuit Court for a judgment so they would not have to comply with FOIA.

That is among the oddest of responses. Seeking a declaratory judgment over a FOIA request is rare. Usually, if an agency does not believe it has to fulfill a records request, it cites the section of the FOIA law that grants an exemption and allows it to keep the records under wraps. The person making the request can then seek an unbinding opinion from Virginia’s FOIA council, or file a petition with the court to push for compliance.

Instead, Roanoke and the Botetourt sheriff are claiming that releasing the records would put them in violation of their contracts with Flock and their own local policies, and would constitute a felony by violating a state code that bars any person, other than a law enforcement officer acting in their official capacity, to use a computer to obtain, access, or record, through the use of material artifice, trickery or deception, any identifying information.

Those claims, especially the one about a felony, are real head-scratchers. Local policies do not take precedence over state law; otherwise, local governments could routinely refuse to allow any records to be released to the public just by citing local policy. And as to the violations of Flock’s contract, Martinsville Police Chief Robert Fincher told Jeff, “We did not initially release the data because I was under the impression that we did not have the authority to, but after consulting with Flock Safety attorneys, that was not the case.”

FOIA exists to make sure that government is open and transparent. The many exceptions — such as personnel and health records — weigh privacy concerns against the public’s right to know.

There are those with concerns that the records compiled by this surveillance technology could violate someone’s privacy if they are open and accessible. A stalker, for example, might query for records to find out where an ex is living and working. But a person who fears they are being stalked could also query to find out if indeed they are being followed.

A bill before the governor would keep from the public the data collected by this surveillance technology. Should that occur, the public would also have no real way of understanding what law enforcement is doing with this information or understanding the extent of their movements being collected into a database that is owned by a private company that is not subject to FOIA.