PHOENIX — A judge has ordered the city of Tucson to provide a list of documents it refuses to make public on its possession and use of a controversial device that allows police to track cellphone users.
In a brief order, Pima County Superior Court Judge Douglas Metcalf essentially rejected a request by the city that he examine the questioned documents himself behind closed doors.
Instead, Metcalf told attorneys for the city and its Police Department to produce not just a full list of the documents it is withholding from freelance reporter Beau Hodai, but also their justification for refusing to make them public. That list has to be produced by Sept. 15.
Attorney Dan Pochoda of the American Civil Liberties Union, representing Hodai, said Metcalf’s order essentially gives his organization what it wants. He said that once the city provides the list and the reasons for its claims of confidentiality, then the ACLU can make its case that the information is public and needs to be disclosed.
Metcalf said he will set a hearing sometime after the end of October.
While this legal fight is playing out over Tucson’s use of the device, its outcome ultimately could have statewide implications: At least two other police agencies in Arizona are reported to have bought the devices.
The fight surrounds a 2011 decision by the city to buy equipment from Harris Corp.
Known as “StingRay,” the device fools a cellphone into thinking it is an actual cellphone tower. And that causes the phone to report back, allowing police to track its location.
Hodai filed a series of public records requests beginning last year seeking specifics of how and where the device has been used as well as policies about when officers can use it.
The city refused, citing a provision in its contract with Harris that it keep such information secret. And city attorneys said the FBI also has asked it to refuse to provide certain details like a PowerPoint training presentation created by a Tucson police officer, an operational manual prepared by Harris, and some quick reference guides to how to calibrate the devices.
But it did acknowledge that the device has been used five times.
In his order, Metcalf said he will let the city keep secret details of one of those cases, saying, “There is a sensitive ongoing criminal investigation, and the release of records may jeopardize the investigation.”
“The best interest of the state outweigh the public’s rights to information,” the judge wrote.
But Metcalf refused to accede to Tucson’s request that he simply review everything else and conclude, on his own, what is subject to release, whether because of a claim of privilege, confidentiality or that catchall category of “best interest of the state.” Instead, he wants the city to detail exactly why each document is being shielded from public review.
City Attorney Mike Rankin said the request for the judge to simply do his own inspection was not to thwart the records request. “Our thought was to expedite judicial review of the records and subsequent release of those records that are deemed releasable,” he said. Rankin said now that the court has ordered production of the list, “we will provide that.”
And Rankin said the city will comply with any court order once the judge hears arguments from both sides.
One issue is the agreement the city signed with Harris to not “discuss, publish, release or disclose any information” about the StingRay to any outside person, corporation or even other government entity “without the prior written consent of Harris.”
That agreement does acknowledge Tucson is subject to the state’s Public Records Law. But it says the city “will not voluntarily disclose” any information about the product. And it says if the city gets a public records request, it will assist Harris in challenging the release.
Pochoda said the city is mistaken if it thinks it can rely on the contract terms to thwart disclosure.
“It’s not even an arguable thing, or else you’d get around every public records law by signing confidentiality agreements with anyone you got records from,” he said. “If this is accepted, it would eviscerate a good chunk of any public records law.”
Rankin said Tucson is not making such an argument.
“To the extent that the city signs such agreements, we include language in them noting that despite such an agreement, the city will release documents that must be provided under the Public Records laws,” he said. “It has never been our position that a nondisclosure agreement can override the public agency’s obligations.”
A bit murkier is that question of when release of documents is contrary to the “best interest of the state.”
Arizona courts have recognized that exception. But Pochoda said it takes more than that claim by a public agency to shield a record, even if there is a claim that it involves a criminal matter or even an issue of security.
“That would just allow blanket exceptions that would engulf the public records law,” he said.
One other issue is the claim by the city that it has been told by the FBI that the documents are legally confidential under federal law and subject to claims of privilege. But Pochoda said all that is irrelevant.
“It’s a state records law request,” he said, not a request for records under the federal Freedom of Information Act.
This isn’t the first time the ACLU has been involved in legal questions over the use of the device.
In 2012, it filed a legal brief in U.S. District Court in Phoenix on behalf of Daniel Ringmaiden, charged with multiple counts of wire and mail fraud for his efforts to get tax returns in the names of dead people.
At issue there was the fact that the government had obtained a search warrant to find his AirCard, a method of linking the computer directly to the cellphone network. The ACLU argued, though, that the request for the warrant failed to disclose that the device would also pick up signals from other cellphones and AirCards.
Judge David Campbell denied the motion to suppress the computer and its contents — obtained through the use of the tracking device to find the AirCard — and the case ended after Ringmaiden eventually entered into a plea deal.
