Let’s start from the beginning. Not with the creation of mankind but somewhere towards the end of July 2014. That’s the time when Little Rock Police started changing their communications on the Arkansas Wireless Information Network (AWIN). This move made it not only nearly impossible but also possibly illegal for anyone to listen to the radio transmissions of Little Rock Police (“LRPD”). Since timely access to radio traffic is a big issue for News Media, KATV asked LRPD if recordings exist and if they are subject to a Freedom of Information Act (“FOIA”) Request. On August 6th, KATV reported that LRPD responded by stating that “Encrypted scanner traffic is recorded and subject to Freedom of Information Act requests.” 
On August 19th, I filed a FOIA request with LRPD and requested (among encryption keys and talkgroup IDs) a week’s worth of recordings. To my surprise and contrary to their initial statement towards KATV, LRPD denied my request. Sgt. Sloan argues for LRPD that “The encrypted audio recordings that you requested contain information that is exempt from disclosure under the Arkansas Freedom of Information Act (‘FOIA’) and the department does not have software with the capability of removing the information that is not subject to disclosure. Therefore, the only way respond to your request would be to have an employee physically listen to recordings and note information that should be redacted, identify where it is on the recording, and then create a new record that does not contain such information. The FOIA does not require the creation of a [new] record in order to respond to a request.”
This is, of course, nonsense. LRPD and – judging by a statement Little Rock city attorney Carpenter made toward the Arkansas Democrat Gazette  – misinterprets what documents I have requested. I did not request transcripts of audio recordings. The records I requested were the recordings themselves. The response could be incompetence or a slick and classic manipulation technique. Misinterpreting a small detail of a request, maybe even adding a fictitious reason (lack of software), to manipulate the outcome of an argument is a classic in legal matters. LRPD’s statement would be correct if I would have requested transcripts. But I didn’t.
LRPD would be required to redact the original record. In this case, that would mean to either silence or otherwise remove information exempted from disclosure. It’s the equivalent of redacting a paper record by blacking out certain sections. This is not considered a creation of a new record. Therefore, LRPD has to do it to be in compliance with the FOIA. If LRPD argues that they don’t have the right software, it is the paper equivalent of arguing to be out of black markers. It simply does not matter for the substance matter of the law. An agency is required to dedicate resources to fulfill FOIA requests. Furthermore, the question needs to be asked why LRPD is all of a sudden concerned about citizens’ privacy. In retrospect, citizens should ask: Why did LRPD not mind to blast names, phone numbers, addresses and license plates over the air in the clear for everyone to hear in the past? A sudden change of heart and department wide tolerance for a person’s right to privacy? I think not.
The previous paragraph assumes that such information is even present in the audio recordings. LRPD occupies 34 different Talkgroups (Channels) on the AWIN system. The statistical odds of every single recording for the given time frame for every Talkgroup containing information exempt from the Arkansas FOIA is lower than me winning the lottery. And that is considering that I don’t even buy lottery tickets. Therefore, LRPD is legally required to submit at least a partial record of non-exempted information. The Talkgroup labelled “LRPD Training,” for instance, had absolutely no activity relating to real information that may fall under privacy laws in the time frame I requested. The funny thing is that Little Rock has no idea how much access to their system I currently already have. I don’t want to give them too much strategic information upfront, but let me say that I’m looking forward to their faces when I will introduce my evidence in court. No matter what the legal outcome will be, exposing lies of government officials is always a great embarrassment. And who is going to trust a police department that blocks access to records and lies to the public about such records? Not saying that LRPD is lying but you can make up your own opinion once I introduce my evidence.
Just to be nice to LRPD, let’s assume what they claim is true. Let’s assume every single second of the recordings for all 34 Talkgroups contains only exempted information. And let’s assume they couldn’t find any possible way to redact without creating a new record. In that case, Little Rock still has certain formal requirements to comply with. A government agency has to indicate that it has a) performed a search for responsive documents, b) analysed them, c) found information exempt from disclosure, and d) indicate what EXACT nature the exempted information is. Little Rock can’t just use a “catch-all” assumption that such information may possibly be present. They have to back this claim up. And that’s the part that should make this case very interesting: It may not even come down to the legal substance at all if LRPD isn’t even able to write a proper denial.
Deeper into the legal substance it will be interesting how the value of Privacy Laws vs. Freedom of Information Laws will play out. Even if LRPD can claim that private information may be present, it may not be a valid reason for exemption if the FOIA’s right to access trumps the privacy law’s right to privacy. The Arkansas FOIA most certainly does not provide an exemption for the information LRPD alleges to be present in the recordings. A complete list of reasons for exemptions can be found in Arkansas Code § 25-19-105 (b). On the federal level, this has been decided in favor of the (federal) FOIA multiple times. LRPD’s illegal attempt to block access is not new; the FBI has tried this nationwide on several occasions. After courts put them in their place, they stopped this behavior for the most part. The average city attorney is far from being an overachiever when it comes to educational and intellectual properties. So cities sometime try things that others have failed doing simply because they didn’t do their research. Anyhow, bottom line is what city attorney Carpenter said: “I think, frankly, maybe a judge is going to have to decide.”
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The complete set of documents for the lawsuit is available here: http://jaunty-electronics.com/blog/wp-content/uploads/2014/09/Amended_Complaint_w_Exhibits_Redacted1.pdf
UPDATE (08/24/2014): Follow and Share the Facebook page I created for this case for news and updates https://www.facebook.com/LRPDlawsuit
Links and Sources:
 KATV: http://www.katv.com/story/26212791/q-a-encrypted-police-communication
 Arkansas Democrat Gazette: http://www.arkansasonline.com/news/