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Communities throughout Michigan and across the country are engaged in a fierce debate about the balance between privacy and security, fueled by a rise of cameras in public locations. Unfortunately, lack of government transparency has made it increasingly difficult for the public to access the information it needs to have this debate. Josh Tewolde, a university student represented by the Mackinac Center Legal Foundation, is pushing back against this lack of transparency in his lawsuit against Genesee County.
Georgia-based Flock Safety is one of several companies that offer Michigan governments automatic license plate readers. These devices are cameras that passively record every vehicle that drives by. A Flock camera will capture a car’s license plate, but much more as well: its make, model, color, and even the bumper stickers that adorn it.
The Flock system builds a “vehicle fingerprint,” which allows law enforcement with access to the footage to identify the vehicle and any other vehicle that might be associated with it. Information from the database is often shared across law enforcement agencies, though purportedly only with permission from the agency that shares the information. As a practical matter, Flock data is shared between departments across the country. There are roughly 4,000 automatic license plate readers in 54 of Michigan’s 83 counties.
Understandably, mass passive surveillance has engendered significant concerns from privacy advocates, including Josh. Stories of abuse are common, with the Institute for Justice tracking more than 100 incidents across the country of law enforcement abusing plate readers. Advocates for these systems, meanwhile, maintain they are an effective tool that can solve otherwise unsolvable crimes.
How should law enforcement use Flock cameras, if at all? This debate is worth having. Government resistance to releasing records under Michigan’s Freedom of Information Act makes it extremely difficult for Michiganders to get access to information about how the plate readers work in their communities. Without that information, it’s next to impossible to know which cameras belong to which municipality, or which officials should be held accountable for deploying them.
Consider our client’s request to Genesee County. Josh requested records that would tell him more about the county’s use of Flock cameras, including its internal policies, audit logs, and contract with Flock. He also asked for records relating to his own vehicle and the location of any Flock cameras under contract with the county.
Initially, the county only released its contract with Flock. After several administrative appeals, the county agreed to release the sheriff’s department’s policies on the surveillance systems. But it refused to produce any footage of Tewolde’s vehicle, the audit logs, or the location of Flock cameras. The county relied on two FOIA exemptions to justify these denials, but neither holds water.
Genesee County argued that it didn’t own Flock camera information until it accessed the data as part of an investigation. This claim is flawed, as merely collecting the data creates a public record, subject to disclosure under Michigan law. Even without the law, it’s clear that the county shouldn’t have made such a claim because its contract with Flock explicitly states that the data “belong to and are retained solely by [the county].”
The county’s refusal to reveal the location of its Flock cameras relied on a different exemption, which is equally suspect. In its response to Josh, the county claimed that revealing the location of these cameras would interfere with law enforcement investigations by letting criminals simply avoid the cameras. But Flock locations are already tracked by several third parties, such as Deflock.org, and are visible to the naked eye. Criminals who want to avoid the cameras can already know where they are.
The county’s response was lacking but predictable. The Mackinac Center Legal Foundation regularly files lawsuits, whether for its own benefit or on behalf of clients, challenging governments’ refusal to be transparent. Our efforts have exposed the state’s failure to count COVID-19 deaths accurately during the pandemic and the salaries paid by the University of Michigan to employees of its Office of Institutional Equity. We exposed the Michigan Education Association and its health insurance affiliate for wrongfully receiving $12.6 million in pandemic funding.
Michiganders shouldn’t have to file a lawsuit to obtain public information, and Josh Tewolde’s case is a perfect example of why we need stronger transparency laws. Until these laws are amended, the Mackinac Center Legal Foundation will fight to ensure that the people of Michigan have access to the records they need to hold government officials accountable.
