Colonie lawyer says he’ll sue for license plate dataPosted on May 27, 2014 by Jordan Carleo-Evangelist
Mathew Tully, a former Army officer with top-secret clearance and founder of the Colonie-based law firm Tully Rinckey, wants the county and/or state to cough up any records it has of his license plates being read by a network of local license plate scanners used by police.
And he says he’s willing to sue to get it.
In a Freedom of Information Law request referencing a Sunday Times Union story disclosing the existence of the 37-million-record database, Tully cites both state public records law and the Personal Privacy Protection Law in requesting records of any scans of the “Tully” and “Tully2″ tags on his minivan and SUV.
The PPPL is a 30-year-old law that generally allows citizens access to and the ability to correct inaccurate information in records that state agencies maintain on them. But Tully’s quest may run headlong into a major exemption to the law, which shields so-called public safety records from disclosure.
That’s an issue that Tully deals with at length in a footnote to his request and acknowledges may have to be litigated in the context of who actually owns the scanner data. State criminal justice officials insist local police, not the Division of Criminal Justice Services, own it. The computer server holding the data, meanwhile, was paid for by DCJS but is maintained by the Albany County Sheriff’s Office.
To head off a denial based on the argument that releasing the data would be an invasion of privacy, Tully only requested records on himself.
Tully is also seeking information on the technology used to record images or other data on his plates and information on anyone who has accessed the data, as well as any protocols governing its accessibility and use.
Tully said he believes the scanners serve several legitimate law enforcement purposes — including aiding the search for missing children. But he said he objects to the data being stored indefinitely, which is the case in the Capital Region and at state-supported crime-analysis centers throughout the upstate.
He wants to know whether or not any or all of the scanners at work in the Capital Region are the kind that take photos capturing more than just the plate in question — including sometimes people standing nearby.
“You would be shocked at some of those things that are in those photos,” he said. “Unlimited storage is problematic for me.”
Tully also questioned the argument used by police that the potential to solve crimes many years from now with archived license plate data justifies keeping it forever.
“Speculating that they’re going to catch a murderer eight years from now because of a license plate reader is outrageous speculation,” he said. “There’s a huge slew of legal issues that I don’t think they’ve looked at.”
Among them, he said, is whether lawyers like him can now subpoena the data as evidence against unfaithful spouses in divorce cases.
“I think I could do it,” he said. “We’re now able to track did the husband go to the Bahamas — or did he go to his girlfriend’s house in Boston?”
If his request does land in court as he expects, Tully said he plans to donate any legal fees he is awarded by winning to the Albany chapter of the New York Civil Liberties Union.
Tully said the debate over law enforcement’s use of license plate data is in many ways much more personal than the national debate over the spy techniques used by National Security Agency.
“This is about me and you,” he said, “and this I think really hits home.”
Here’s the text of Tully’s request, which was sent to Albany County Sheriff Craig Apple, Albany County Clerk Bruce Hidley and DCJS.
To Whom It May Concern:
Reference is made to today’s Times Union story by Jordan Carleo-Evangelist about the County maintained database of 37 million records from “License Plate Readers” (Hereinafter “LPRs”) because of a State Grant and State Encouragement. I believe this records database is subject to both the Personal Privacy Protection Law (AKA “PPPL” codified in Article 6-A of the NYS Public Officers Law) and/or the Freedom of Information Law (AKA “FOIL” codified in Article 6 of the NYS Public Officers Law).
I wish to access (ie tell me when the records will be available for my inspection) the following pursuant to the Personal Privacy Protection Law (AKA “PPPL” codified in Article 6-A of the NYS Public Officers Law) and/or the Freedom of Information Law (AKA “FOIL” codified in Article 6 of the NYS Public Officers Law).
1) Any records/images/photos of my license plates (my “license plates” or my “property” shall hereinafter mean two vehicles owned by me with NYS License Plates “TULLY” a 2012 Honda Odyssey and “TULLY2” a 2010 Honda Pilot) taken by LPRs or any other source that provides records to this database.
2) Any records pertaining to what types of devices collect the records stored in this database (ie is it just LPRs or are other “collection devices” used? If so, what are the other types of collections devices?).
3) Any records/images/photos of people or property in or around my vehicles (NYS Registration “TULLY” and “TULLY2”) taken by a LPR or any other collection device.
4) All records that include a photo or image of any person taken by any LPR at any time that is in this database.
5) All records that include a photo or image of personally recognizable property not on a public roadway or public place (ie a dog with a collar with a license on it, a parked car in a private driveway that a LPR picked up while driving on non public land, etc).
6) Any records of non-criminal subpoenas, other written requests/records or records of any oral request for records to search and/or obtain records included in this database.
7) Any records of non criminal search requests of this database in any format.
8) Any records showing the names and/or positions of personnel with access to records involving images/records of my vehicles (“Tully” and “Tully2” mentioned above).
9) Any records showing the names and/or positions of anybody who in fact did access records involving images/records of my vehicles obtained by a LPR or other source that is contained in this database .
10) Any records showing the names of entities who provide records to be compiled or inputted in this database.
a. Any written records or agreements pertaining to providing the records between the county and these entities.
11) Any record showing which entities have access to the records kept in this database.
a. Any written records or agreements pertaining to access of the records between the county and these entities.
12) Any record or policies or procedures for the “archival” of records involving my vehicles (“Tully” and “Tully2” mentioned above).
13) Any record showing the names and/or positions of personnel with access to these archival records.
14) All records of any type pertaining to the establishment, maintenance, and access to this database.
15) Any records pertaining to any audits planned or completed to ensure proper safeguarding of access to my records.
16) Any record showing the name, identity and/or position of anybody who searched for or had my records displayed to them with date/time of such display if possible.
In an effort to ensure the record is clear for Court review and hopefully to avoid an improper denial of this request, it is undisputed this database is used for non-criminal purposes (parking ticket enforcement, the civil department of the Sheriff’s office has accessed it, etc). Furthermore, my request is not asking that any record/image is disclosed that would reveal criminal investigative techniques or procedures except routine techniques and procedures already made public by the above mentioned Times Union story. Revealing an image/record that has a person in it taken by LPRs in a public place doesn’t constitute an unwarranted invasion of privacy, but to the extent that you deem it does (I will appeal such a denial), please black out the face so the remainder of the image/record is discloseable to avoid a complete denial of access to that record (let me know if you need legal caselaw to support such a position).
Mathew B. Tully
American Citizen and resident of New York State
 The amalgamation of the PPPL and FOIL to this database will likely need to be resolved by a Court of competent jurisdiction. With that said, it is not lost on me the pros/cons of deciding if the PPPL is applicable which could be very useful to denying records under FOIL but dramatically open access to individuals and provide them protections provided by the PPPL. So you don’t dismiss the PPPL argument too quickly under the “we aren’t a state agency thus PPPL doesn’t apply” theory, realize that the PPPL is also subject to another “governmental entity performing a governmental or proprietary function for the state of New York” (see section 92 of the NYS Public Officers Law definition of “Agency”). The State provided the funds for this database, the basic rules for use of this database, and the means for collecting the records/methods for creating records/hardware and software for storing and accessing the records, and is a prime user of this database. As such, I make the argument that this database is truly a NYS DCJS database (hence the letter also addressed to them) with another “government entity (Albany County in this case) performing a governmental or proprietary function for the State of New York”. With respect to any “Public Safety Agency Record” exemption under the PPPL, it should be undisputed that LPRs data is not a record “maintained by the division of criminal justice services pursuant to sections eight hundred thirty-seven, eight hundred thirty-seven-a, eight hundred thirty-seven-b, eight hundred thirty-seven-c, eight hundred thirty-eight, eight hundred thirty-nine, eight hundred forty-five, and eight hundred forty- five-a of the executive law” so it is not a Public Safety Agency Record. I also included the Sheriff separately from the County FOIL officer as an argument could be made that the Sheriff, as a State Constitutional Officer (See NYS Constitution, Article XIII, Section 13), must be served with a FOIL request without regard to the County Legislature’s appointment of a FOIL Officer for the County. Again this is done to limit the issues for judicial review to the ‘meat and potatoes’ of this argument and limit technicalities.
 According to an ACLU report founded here: https://www.aclu.org/files/assets/071613-aclu-alprreport-opt-v05.pdf the data could be stored either as a picture or converted into text and saved in that manner, as the Times Union story did not mention how or what data was saved, I am requesting for all records whether in text or image format and whether including geolocation data or not that you have contained in this records database