Missouri Press Association
Serving Missouri Newspapers Since 1867
The question of how much surveillance a society can tolerate is on the collective front-burner. In September, Gov. Mike Kehoe issued an executive order putting limits on how Missouri law enforcement agencies can use Flock cameras and other automated license plate reader (ALPR) information. The amount of information being collected by public and private bodies on the movements of Missouri citizens is stunning.
But let’s set aside the ramifications of constant surveillance for the moment. That is above my pay grade. Here’s the question I can handle: Is Flock camera information a public record. The answer: Yes (if it’s being used by a public agency).
According to Flock, its contracts with customers include the following language: “As between Flock and Customer, all right, title, and interest in and to Customer Data belong to and are retained by Customer.” Flock also states that its contracts define “customer data” to include all images, audio and video captured by Flock hardware on behalf of the customer, as well any content a customer enters into Flock’s web interface. Flock affirmatively states that it has no ownership over this information.
Gov. Kehoe’s mandate further drives this point home. His order directed: “All data, metadata, and imagery captured by ALPR systems of a Missouri government agency or local law enforcement entity that receives state funding and utilizes ALPR technology shall remain the sole and exclusive property of that agency.”
Flock cameras briefly store the photos they take before transmitting them to the cloud. Flock has a system in place for its customers (i.e., law enforcement agencies) to submit queries and retrieve information to comply with open-records requests.
Missouri agencies have occasionally denied requests for Flock records by claiming they do not retain the information. This position is wrong. The Missouri Sunshine Law (specifically RSMo 610.029) prohibits government bodies from entering into contracts to store public record data online or in an electronic database that “as a practical matter makes it more difficult for the public to inspect or copy the records.”
This means that Missouri law does not permit a public body to claim it has not retained a public record because it was stored in a third-party electronic database. The Sunshine Law actually includes “records created or maintained by private contractors under an agreement with a public government body” in its definition of “public record.”
Gov. Kehoe’s order also requires mandatory logging of the queries used by law enforcement, including the identity of the user and the specific law enforcement justification.
Flock already maintains this information and more: According to its website, audit logs are stored in a .CSV format and contain fields that can identify the user. Flock highlights this information as a “guardrail” that keeps “user actions visible.”
Without venturing too far into the weeds, this is evidence of what lawyers call “foreseeability:” The people responsible for this data being collected are aware of the potential harms that can occur.
For Flock, then, the audit logs are created automatically. A Missouri public body cannot deny a Sunshine request for an audit log by claiming it must create a new record. There have already been reported accounts of Missouri officers using Flock databases to track private citizens for personal purposes. Such logs should serve as a valuable resource for the Fourth Estate.
