Steve Orr

@SOrr1

Dan Novack, a lawyer and journalist who writes for The Intercept, the online news magazine, posted a short piece last week about the Democrat and Chronicle's Freedom of Information lawsuit to force the release of police license-plate records.

His opening line -- "What's public for me is private for thee" – nicely captured the seeming hypocrisy at play. Monroe County, the defendant in our lawsuit, believes police have every right to photograph people's license plates on public streets. But those same people have no right to see the pictures of their own cars.

Novack, who lives in Brooklyn, followed up on his story about the news in Rochester by, perhaps, making news himself – he filed a Freedom of Information request with the New York City Police Department for license-plate photographs showing his own vehicle.

In so doing, he joined a small but growing list of journalists, interest groups and citizens who have sought release of license-plate records through open-records requests.

To date, I am aware of 110 public-records requests in New York for license-plate records. Two have been formally honored. One has been granted informally. In addition to Novack's request, 105 others, almost all in Onondaga County, are still pending.

Only ours has been denied.

The Democrat and Chroniclereported in July on the growing archive of license-plate records maintained by law-enforcement officials in Monroe County and many other parts of New York state. Most of the records depict license plates of everyday citizens, not criminals or scofflaws.

Police say they store the records, sometimes for as long as five years, in case they might be needed to track suspects, examine crime patterns or look for witnesses.

After the story was published, I filed a FOIL request with the county, which stores data collected by local law-enforcement agencies. I asked for records showing my license plate, those of six other Democrat and Chronicle news employees and two government-owned cars driven by top county and city of Rochester officials.

The county's FOIL administrator and its appeals officer separately denied the request, citing privacy reasons and also claiming the records could, if disclosed, "interfere with a law enforcement investigation."

As the state FOIL law provides, the newspaper then filed a petition in state Supreme Court to require the release of the records, arguing the county's reasons for withholding them are specious.

The first appearance in the case, before Justice John Ark, is scheduled for Nov. 19.

The suit prompted Novack's story and another that should be published shortly by an America Online news writer. It also triggered an inquiry from the Electronic Frontier Foundation – a San Francisco civil-rights-in-the-digital-world group that is embroiled in its own legal action to get license-plate records.

EFF and the American Civil Liberties Union filed suit in California state court last year after being denied an open-records request for a week's worth of license-plate records generated by the Los Angeles police and sheriff's departments. Jennifer Lynch, an EFF senior staff attorney, said the groups made such an expansive request because they wanted to get a sense of where records were gathered and look for evidence of discriminatory activity.

Given their bent toward privacy, the groups had no plans to make all the records public. But no matter – a state judge last month refused to order the records be produced on the grounds they were "investigatory" in nature. The two civil-liberties groups filed an appeals suit last week.

Another California judge issued a similar ruling a few days later in a separate Freedom of Information suit brought by a San Diego entrepreneur seeking his own records.

The only other lawsuit over such records that I could locate was filled in the Kansas City area by a taxpayer-rights activist, Bob Gough. He tells me the pro se action was dismissed in July for failing to state a proper cause of action.

Such lawsuits are the exception, not the norm.

The Connecticut ACLU was given millions of records pursuant to an open-records request in 2012. A resident of San Leandro, CA, near Oakland, made requests for his plate's records starting in 2010 and was given dozens of them, including one that clearly showed the man and his children getting out of his car in his driveway.

A writer for Watchdog.org was given 16 images of her car after she FOILed police in Alexandria, VA earlier this year. Several citizens there followed suit.

A Minneapolis Star Tribune reporter FOILed his own records in 2012, which prompted other Minnesotans to make requests as well, including one that yielded images of the mayor's city-owned car. When Boston police surrendered LPR data in 2013 in response to an open-records request from the Boston Globe and Muckrock, it erroneously included personally identifiable information the groups hadn't sought. Revelation of the gaffe led to suspension of the police LPR program.

In New York, Onondaga County officials provided records of a Syracuse Post-Standard reporter's car earlier this year after she made a FOIL request. At reporter Marnie Eisenstadt's urging, more than 100 other Onondaga residents filed their own requests, all of which are still pending.

Democrat and Chronicle reporter Meaghan McDermott,when she was writing about license-plate readers in 2013, informed the Greece Police Department she wanted to FOIL any records of her car in that town. Then-chief Todd Baxter simply gave her an image.

Albany lawyer Mathew Tully made a FOIL request this spring for records of his license plate after reading about the huge collection of data being amassed by law enforcement in the Albany area. He filed requests with the county sheriff's office and also with the state Department of Criminal Justice Services, which he was told funds and maintains the hardware used to store the material.

It seemed a cut-and-dried request to Tully, who is active with the ACLU and has handled more than a few open-records cases. "I'm of the position that if a government has a record on me and it is not falling within the FOIL exception -- that is, if it's not an active investigative record -- then they have to turn it over to me," he said.

The state agency has not given a final response to his FOIL there. But Albany County Sheriff Craig Apple Sr., who Tully described as "pretty much a stand-up guy," did turn over records.

To his surprise, all the records he's received were made in the wee hours at Albany International Airport, during times when Tully'd left his vehicle there while traveling. After puzzling over it for a moment, Tully realized the images were made by sheriff's cars at the airport equipped with LPRs. Midnight-shift deputies, with little else to do at that hour, cruise the parking lots taking pictures.

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