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The Southampton Village Police headquarters. DANA SHAW
The Southampton Village Board agreed to pay $15,000 and release Village Police license plate reader data to resolve a Freedom of Information lawsuit brought last year by a group dedicated to protecting public access to government records.
Charles Lane of the Institute for Access to Public Information, an upstart group of Long Island-based journalists and attorneys, said he brought the lawsuit against the village because his repeated requests for the data went unfulfilled or ignored.
Lane and fellow members of the institute’s board, attorneys Victor Yannacone and Cory Morris, noted during a group interview last week that the difficulty he had obtaining records from the village is common across the state — a problem their group was established to combat.
“I started a project a couple of years ago to get all of the LPR databases for all of the police departments on Long Island,” said Lane, who is also a WSHU public radio reporter. “A lawmaker had told me that they were being used to keep people from entering certain areas, and I wanted to find out if this was true or not.”
He said the only way to accomplish that is to get all of the LPR databases to see what the police are actually doing. “That is when I realized how closely these things are kept,” he added.
Lane said most departments did share the data. Some only complied after some back and forth and prodding. The most notable holdout is the Nassau County Police Department, and that dispute remains in court.
“One of the big eye-opening things to me was just how tightly police departments hold on to this — how tightly certain police departments hold on to this,” Lane said.
When approaching Southampton Village, he explained, it was unclear who to send his request to. “They just did not have a clear articulate process in which a person can ask for records and get them,” he said.
Court filings show Lane emailed then-Chief Thomas Cummings on November 28, 2020, to ask for the number and location of the police department’s license plate readers, its LPR database for August 1 through November 30, 2020, village LPR purchase or service contracts, rules governing the department’s use of LPRs, communications to other law enforcement agencies sharing information derived from LPRs, the number of occasions the department’s LPRs matched a “hot list” of license plates, agreements signed with other law enforcement agencies regarding LPRs, statistics of the number and types of violations issues based on LPR evidence and the number of times a request has been made to search LPR data.
On December 1, Lieutenant Chris Wetter told Lane he must submit his request to the village administrator, Charlene Kagel-Betts, which he did. Kagel-Betts responded with a letter acknowledging receipt of his request and saying he would receive a reply within 20 business days as the village processed his request.
Under the state’s Freedom of Information Law, a municipality must send an acknowledgment within five business days, and then is required to provide the requested documents within 20 days or explain why more than 20 days is required to fulfill the request. If the municipality denies the request, it must explain why and offer the opportunity to appeal the decision.
Lane did not receive further communication from the village within the 20-day window and sent four more emails that went unanswered, according to the lawsuit. It would be another 205 days before he received a response.
Though village officials did not tell Lane his request was being denied, the village’s failure to communicate constituted a “constructive denial.”
Lane submitted an appeal on June 22, 2021, and said the Village Police mailed him a partial response to his request eight days later that contained a generalized report of the LPR data and not the actual database. The response did reveal that the Village Police have nine LPRs, seven of which are stationary and two that are mounted to the same police vehicle, and it listed numerous arrests, mostly for driving with a suspended registration, that were initiated via LPR hits.
Lane followed up July 6, telling the police department that the response was insufficient. He suggested police officials could call the LPR vendor and ask for instructions on how to export the data into a digital, searchable spreadsheet. He sent three more emails that likewise went unanswered.
On September 10, 2021, Kagel-Betts wrote to Lane: “Your FOIL request has been denied and you were notified of such. The village cannot hand over our database to an outside individual or agency — you have been provided with a copy of the database and that is all we can provide to you.”
Lane filed a second appeal 10 days later. Village Attorney Ken Gray answered him that same day, writing, in part: “… it is my understanding that your FOIL request has been satisfied. The village has turned over a complete copy of the data you have requested. It is my understanding that you are now requesting ‘user access’ to our database so that you can run your own database queries. That is not permitted under our license agreement with the software company. If you have a specific query you want us to run, please advise as to what that is. If the software can run the query, we will provide to you the result that is produced.”
Lane wrote back, clarifying his request, explaining that it was never satisfied and that he never requested user access.
“That’s when things got really, really bizarre,” Lane said. “It’s like the village attorney essentially ignored the appeal, which is against the law.”
Lane sent multiple additional unanswered emails to Gray before bringing the matter to court.
“I was bending over backward to not elevate this, not litigate,” Lane said. “… I just want the records. I don’t want to cause any more problems than necessary, but it was just — it was absurd, the nonresponse that I got.”
The lawsuit named Gray as the village’s records access appeals officer. However, Mayor Jesse Warren, when asked about the lawsuit, identified himself, by virtue of being mayor, as the village’s records access appeals officer for all village departments, under the village code.
“As far as I’m concerned, Charles Lane did everything correctly,” Warren said in an interview last week. He noted that though he is the village’s FOIL appeals officer he was never contacted and said that, had he been, he would have been in favor of releasing the data.
“Had I received an appeal, I would have walked right into the police department and said, ‘You have to give this man the information,’” Warren said.
Warren blamed Cummings for not releasing the data and for the village ultimately paying out attorney’s fees. “We had a former chief of police who thought the public’s information was his information,” he said.
Cummings, the former police chief, said this week that he recalls fowarding the FOIL request to the village attorney, who handles such requests, and coordinated with Village Hall personnel. “We also consulted with other police departments that had received the same or a similar request from Mr. Lane to see what materials they planned to release, and the LPR system vendor, and forwarded the material that we were advised was appropriate to release based on our research,” he wrote in an email.
Cummings said Wetter, the department’s FOIL officer, forwarded the information to Village Hall for release. “I would like to say whom at Village Hall we sent the material to, but with the rapid turnover there under Mayor Warren’s administration, I can’t say with certainty who that was,” Cummings said.
He noted that he has been the department’s FOIL officer when he was the captain and was the appeal authority when he became chief. “I was and am knowledgeable regarding the Freedom of Information laws,” he said. “We never had an issue with the release of information under FOIL until the mayor directed that all releases of information from the Police Department had to go through his office. You can draw your own conclusion from that.”
Warren agreed with Lane that the FOIL process in New York State is onerous and that the average person has a hard time getting information. He said he is trying to improve the FOIL process to ensure requested information is turned around in a timely manner.
Lane said he often sees agencies deny requests by wearing down applicants. “This is, I think, a pretty reliable tactic for agencies to just, like, make it difficult,” he said, citing the difficulty and expense in enlisting an attorney to help.
Agencies may refuse to accept requests via email or put responses in legal jargon that the everyday taxpayer cannot understand, Lane gave as examples. “It’s just such an uphill battle. It’s just a mess,” he said.
Morris said once the FOIL lawsuit was filed, the attorneys for the village immediately decided to get the records over to Lane. The case was disposed June 1.
Typically, according to the attorneys, it takes much longer to litigate a FOIL case successfully and being awarded attorney’s fees is uncommon.
“Once you start them, it is quite reasonable to believe they will go on forever,” Yannacone said of FOIL lawsuits. “These cases were meant to be decided in less than three or four months. They last a year or two. No one can afford that.” He said it takes between 50 and 100 billable hours from an attorney.
“It’s a war of attrition,” Lane said, “but the government has taxpayer dollars to fund their war of attrition, whereas the taxpayers have to use their own money. It’s ludicrous the way that FOIL is operating now.”
