The Data's in the Details

Police surveillance has been around a long time, but when law enforcement deploys surveillance technology without the public’s—or the legislature’s—knowledge, that’s a problem, says Scott Flaherty.

In fact, it led to a three-year lawsuit against Hennepin County. In preparation for Super Bowl LII, “public taxpayer dollars were being spent on what was then state-of-the-art biometric surveillance equipment,” Flaherty says, “and it was basically unknown to the public the level of surveillance technology that the county was acquiring.”

Flaherty, a partner at Taft in Minneapolis, got involved at the request of journalist and public records researcher Tony Webster. In 2015, Webster made a formal request under the Minnesota Government Data Practices Act for public data regarding the technology. First, he had to wait. Then he was told his request was too burdensome. Webster refined his request, but kept getting stonewalled. So he called Flaherty, and in 2016, in the interest of speed, they filed a data practices complaint with the Office of Administrative Hearings.

“I was expecting we would have a fight over whether facial recognition information should be public,” Webster says. “But it wasn’t that at all. It was whether government has to search their email.”

Of the emails the county agreed were public, it argued that too much work would be needed to collect them. “A key factual dispute in litigation was the search retrieval and organizational capabilities of the county’s email servers,” Flaherty says. “We had to educate the judge about the details of how that system functioned and the type of search and retrieval capabilities that Hennepin had at its disposal but chose not to use.”

Flaherty’s argument also wove moral responsibility into the letter of the law. “It’s not just that this data is public and therefore should be produced under the act, although that’s true,” he says. “It’s ‘Why do we care?’ … It matters broadly to taxpayers, to people who are coming in from out of town to the Super Bowl. It matters to everyone. People should know how their government is watching them.”

He began poking holes in the county’s pre-litigation statements. According to Supreme Court records, the county claimed that complying with Webster’s search would “tie up Hennepin County’s servers 24 hours a day for more than 15 months.”

“We proved that in trial to be not accurate,” Flaherty says. “I thought that was really persuasive, showing that the affirmative claims made by them were contradicted by their own technical documentation or the testimony of their chief information officer.”

The administrative law judge ruled in their favor and ordered Hennepin County to start producing the data, which it did—but only for a short time.

“We kind of suspected that the case was going to turn into an appeal,” Webster says. “So when we got into the Court of Appeals and Supreme Court there wasn’t any question. It was really clear what had happened and there were no lingering questions because Scott had spent so much time and effort making sure that everything was really well documented. At the time, it didn’t seem important to put every little detail in there, but it really paid off to be that meticulous.”

Still, the case dragged on. “Tony was hoping to have all the information digested and a story published in advance of the Super Bowl,” Flaherty says. “That didn’t happen, because even though we prevailed after the trial, the county sought and received a stay of the judgment pending appeal.” 

The case went back and forth between the Minnesota Supreme Court and the Court of Appeals for well over a year. “My memory is that it was 18 months later when we finally got the documents,” Flaherty says. “At that point, I think his request was two and a half or three years old.”

After winning the trial and then seeing the judgment affirmed in the Court of Appeals, Flaherty and Webster did something unusual: They appealed again to the Supreme Court. “We wanted the Supreme Court to clarify the Court of Appeals’ ruling in our favor to cement that into law statewide,” Flaherty explains. 

The Supreme Court agreed to review the case, but only the parts Webster hadn’t already prevailed on. “Even though our victory was intact, we were a little disappointed,” Flaherty says.

During and after the case, Hennepin County made some changes to how it handles emails: It launched a policy to delete them after 30 days. “Of course, under the act, if you don’t have public data, you can’t be compelled to produce it,” Flaherty says. “That was one change I saw that I believe was a result of our litigation.”

Flaherty is currently working on another case for Webster against the Minnesota Secretary of State regarding public data the state keeps on businesses and the cost and requirements associated with obtaining that data. Are the two cases similar? “Maybe,” Flaherty says, before adding, “I think this case will probably be more focused on the law.” 

When Scott Met Tony

“I didn’t know Tony Webster—or I should say I knew him as someone funny on Twitter,” Flaherty says. “Several years ago, the ACLU asked me to represent one of the people who allegedly organized a Black Lives Matter demonstration. I learned that Tony Webster had requested a bunch of data from the City of Bloomington, who was doing the prosecution of my client. It was the type of information that I would not have gotten under the criminal discovery rules, but he had it and it was public. So I reached out to him and I said, ‘Hey, you don’t know me, but would you mind giving me a copy of the documents you’ve got?’ And he did right away. We stayed in touch and he continued to do the type of thing he does, which is request public data and then write about important matters of public concern. Then he reached out to me and said, ‘Hey, I helped you last time. Do you want to help me out with this?’ By that time, we were certainly becoming friends, and I said, ‘Absolutely. This looks like a great case. Looks like it has a lot of merit and it’s an important issue.’”