Actually, You Can Fight City Hall—Even On Surveillance Issues

By Michael Maharrey

You’ve probably heard the old adage, “You can’t fight city hall!” Well, I did. And I won.

Last October, the city of Lexington, Kentucky, sued me in an attempt to keep its “mobile surveillance cameras” secret. Last week, in a major victory for government transparency, Fayette Circuit Judge John Reynolds issued an order granting my appeal for summary judgment. In simple terms, the judge rejected the city’s arguments for keeping its surveillance cameras secret and ordered the Lexington Police Department to release all relevant records.

An Initial Victory

My legal saga started last summer. After surveillance cameras appeared in a local skateboard park, I submitted an open records request to the LPD in an effort to determine what other surveillance programs it operates in Lexington. The police department admitted to using 29 mobile surveillance cameras “available for a variety of video surveillance operations.”

“Cameras are deployed as needed in support of active investigations in accordance with SOP BOI 93-46A, Criteria for Surveillance Conducted by Special Investigations Section,” they said.

While the police department acknowledged the existence of these cameras, it refused to provide any additional information other than redacted documents disclosing costs. The police claimed information about the types of cameras used and the policies surrounding their use were exempt under the state’s open records laws. The LPD cited a statute that exempts certain documents relating to homeland security, along with a second statute exempting certain “investigative reports.”

On appeal, the attorney general’s office rejected both exemptions claimed by the LPD and ordered the city to release the documents.

The City Retaliates—and Fails

On Oct. 2, 2017, a constable served me with a summons. The lawsuit was clearly intended to intimidate me into going away. The initial complaint even asked the judge to award the city court costs. Think about that for a moment. I simply asked for information relating to government activity. In response, the city sued me–a taxpayer–and demanded I foot the legal bill. So much for transparent government that serves “we the people.”

It was a shrewd strategy on the city’s part. City officials likely assumed I wouldn’t have the resources to pursue a court case, and I would just drop the matter. They were correct about the first assumption, but fortunately, the ACLU of Kentucky agreed to represent me in this case.

In court, the police basically argued that disclosing information about their cameras would render them ineffective and potentially jeopardize officer safety. It remains unclear how knowing what kind of “hidden” cameras the police own would make them ineffective. They also asserted that providing information about their surveillance activities would create an “undue burden.” In a nutshell, the city claimed that the investigation of crimes facilitated by the cameras constitutes “an important government interest” that warrants denial of the information.

While these may sound like compelling arguments on the surface, the city of Lexington failed to provide any basis for their assertions. On June 19, Judge Reynolds ruled that the city did not meet the standard of clear and convincing evidence required by the statute.

“In sum, this Court finds that the plaintiff, LFUCG, has failed to assert an applicable provision of the KRS or other binding precedent which would allow the denial of the information requested by Maharrey,” he wrote. “Therefore, LFUCG has failed to meet its burden of proof, and pursuant to ORA [Open Records Act] the requested information should be released for review by Maharrey.”

The city has 30 days to appeal or ask the circuit court for reconsideration. Otherwise, it must release the requested documents.

“We are the government”—or are we?

I’m not particularly comfortable casting myself as a little guy fighting the system. As the national communications director here at the Tenth Amendment Center (TAC), I had some firepower of my own and some resources at my disposal. Still, I could not have won this battle without the help of the ACLU of Kentucky and attorneys Clay Barkley and Heather Gatnarek. If I had been an average Lexingtonian, the city probably would have gotten its wish. I would have dropped the matter and gone away.

Make no mistake—this is a huge win for the people of Lexington. Those of us who live in this city have a right to know what our government does in our name. We have a right to weigh in and decide whether or not the benefit of surveillance technology outweighs the potential for abuse and violation of our basic privacy rights. We have a right to insist government agencies operate potentially invasive technology with oversight and transparency in a manner that respects our civil liberties.

Government secrecy steals power from the people. As the saying goes, sunlight is the best antiseptic. The city’s default position was to maintain secrecy, to keep the blinds closed, to slam the door in our face. Don’t let the fundamental nature of what happened to me escape you. When you boil it all down, the city sued me because I asked questions it didn’t want to answer. It kind of makes you wonder about the old adage, “We are the government,” doesn’t it?

Now, hopefully, we will get the kind of transparency we deserve. Whenever I talk about surveillance, people always ask me, ‘What do you have to hide?’ Well, I’ve been asking the city that question for nearly a year. I don’t think a little transparency and oversight is too much to ask for.

Building the Momentum of Accountability

I started a local group called We See You Watching Lexington to establish oversight and transparency of surveillance programs in this city. People shouldn’t have to get sued in order to find out what kind of surveillance programs the city operates. Furthermore, the city should not operate this kind of potentially invasive technology without firm policies in place directing how, when, and where it is used and establishing how information is stored and shared.

This is actually part of a broader movement of privacy localism that is taking on the surveillance state. The TAC has been involved in the Community Control Over Police Surveillance (CCOPS) initiative from the beginning and helped draft model legislation for a local surveillance ordinance that creates some level of transparency and oversight over local surveillance programs.

This is more than just a victory for me or even the people of Lexington. This is a win for all of us who care about liberty because it proves an important point. We can fight the government and win. Our efforts aren’t in vain. If I can do this, anybody can.

Here’s my challenge to you. Take what I’ve done and build on it. Get involved in your local community. Fight. If you don’t know how, we’ve got some resources to help. I put together a series of short podcasts called Activism 101. They offer simple step-by-step advice for starting activism in your own town. You can check out that series HERE.

Michael Maharrey is the national communications director at the Tenth Amendment Center. This article was sourced from FEE.org.