Legal Implications of Video Surveillance on Transit Systems (2018)

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39 actions.547 In Concord v. Ambrose,548 a federal district court in California held that information on the Customs Bureau’s surveillance techniques were not subject to production under the FOIA.549 As another example, investigators from the Social Security Administration’s and the Office of the Inspector General’s Cooperative Disability Investigations program compile investigatory files that may include video surveillance of applicants for disability benefits, including Supplemental Security Income payments.550 Depending on the circumstances and applicable FOIA exemption, courts, in addition to the one in Concord, supra, have refused to order agencies to provide video surveillance records or related information.551 2. State FOIAs or Other Public Records Disclosure Laws A threshold question is whether a state public records disclosure law applies to political subdivi- sions of the state or to municipalities that own a transit system. In its response to the survey, the Greater Peoria Mass Transit District stated that to prevent misuse or abuse of its surveillance system, access to see or review video is limited to the Direc- tor of Safety, Information Technology, and the Direc- tor of Operations but that when FOIA requirements are met, video surveillance data are released to outside agencies.552 On one hand, The San Francisco Bay Area Rapid Transit District noted that its recorded video data are subject to the law on requests for public records.553 On the other hand, the Hillsborough Transit Authority stated that its surveillance videos are confidential and exempt from Florida’s Public Records Act pursuant to Fla. Stat. §§ 119.071(3)(a) and 281.301.554 there was evidence “that the MBTA was aware, sepa- rate and apart from any surveillance evidence, that, from time to time, pedestrians and bicyclists went around lowered safety gates at grade crossings.”541 XI. DISCLOSURE OF VIDEO SURVEILLANCE RECORDS UNDER THE FEDERAL OR A STATE FREEDOM OF INFORMATION ACT OR EQUIVALENT LAW A. Federal and State FOIAs or Other Public Records Disclosure Laws and Video Surveillance Data 1. The Federal FOIA Government-owned transit agencies that retain or archive video surveillance data may be subject to their state’s FOIA or other state or local public records disclosure law. Although state and local tran- sit agencies are unlikely to be subject to the federal FOIA, many state disclosure laws are similar to the federal FOIA. The federal FOIA creates a strong presumption of public access to agency records.542 A FOIA or equivalent public records disclosure law may be “a legal means through which surveillance data on individuals could be released to the public….”543 Documents, records, and data that are not required to be published by an agency are subject to disclosure unless the information comes within one of nine exemptions, one or more of which may apply to video surveillance.544 As explained by the District of Colum- bia Circuit, the federal FOIA includes exemptions for “‘personnel and medical files and similar files the disclosure of which would constitute a clearly unwar- ranted invasion of personal privacy….’”545 Moreover, the Act exempts ‘‘‘investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency.’”546 The exemption for investigatory files applies to files prepared for civil and criminal law enforcement 541 Id., 446 Mass. at 550, 845 N.E.2d at 365 (emphasis supplied). See Long v. CSX Transportation, Inc., No. 1:13- CV-990, 2015 U.S. Dist. Lexis 178934, at *1 (N.D. Ga. 2015) (reports privileged because of § 409) and Stark-Romero v. Amtrak, 276 F.R.D. 531 (D. N.M. 2011) (holding that BNSF Railway must produce “geometry video” but that expert opinions premised on the video would be inadmissible under § 409). 542 5 U.S.C. § 552(d) (2017). 543 Guidelines for Public Video Surveillance, supra note 6, at 12 (footnote omitted). 544 5 U.S.C. §§ 552(b)(1)–(9) (2017). Subsection (6) states that the section does not apply to “personnel and medical files and similar files the disclosure of which would consti- tute a clearly unwarranted invasion of personal privacy….” 545 Soucie v. David, 448 F.2d 1067, 1078 N 45 (D.C. Cir. 1971) (citation omitted). 546 Id. (citation omitted). 547 Id. (citation omitted). 548 333 F. Supp. 958 (N.D. Cal. 1971). 549 See 5 U.S.C. § 552(a)(2)(C). 550 Office of the Inspector General, Cooperative Disability Investigations, http://oig.ssa.gov/cooperative-disability- investigations-cdi (undated) (last accessed Aug. 22, 2017). See Orth v. Astrue, No. 8:07-CV-1874, 2008 U.S. Dist. LEXIS 101326, at *1, *6–10 (M.D. Fla. 2008) (rejecting the plain- tiff’s challenge to the admission of video surveillance col- lected by the CDI’s investigators regarding the plaintiff’s application for disability benefits and SSI payments). 551 Elec. Privacy Info. Ctr. v. DOJ, 584 F. Supp. 2d 65 (D. D.C. 2008); Medoff v. United States Cent. Intelligence Agency, 464 F. Supp. 158 (D. N.J. 1978); and N.Y. Times Co. v. United States DOD, 499 F. Supp. 2d 501 (S.D. N.Y. 2007). 552 See Appendix C, Greater Peoria Mass Transit Dis- trict’s response to question 7. 553 See Appendix C, San Francisco Bay Area Rapid Transit District’s response to question 25. 554 See Appendix C, Hillsborough Transit Authority’s response to questions 22(a)–(d).

40 personal privacy” unless the subject of the informa- tion consents in writing to the disclosure.562 Also, in Illinois, “information specifically prohibited from disclosure by federal or State law or rules and regu- lations implemented by federal or State law” may not be disclosed.563 New York and Wisconsin have similar exemptions.564 State public records disclosure laws may exempt records that pertain to security plans or infrastruc- ture. In Florida, records, information, photographs, and audio and visual presentations that reveal a security system plan are confidential and exempt.565 It has been held that the public records statute applies to video recordings.566 In Baines v. Port Authority of New York and New Jersey,567 Baines sought a copy of certain videotapes and other records of the Port Authority pursuant to its Freedom of Information Code (FOI Code), which is based on the New York and New Jersey freedom of information statutes. Exception 4 of the FOI Code prohibits the disclosure of documents that “‘if disclosed, could endanger the life or safety of any person or jeopardize the safety and/or security of any facility or information technology system….’”568 The court ruled, “Records or information that detail the storing procedures of recorded video data, camera locations, video storage capacity, length of storage time, back-up capabilities for video storage, and protocols for criminal incidents captured by video surveillance cameras clearly fall under exemp- tion 4 of the FOI Code.”569 State disclosure laws may have exemptions simi- lar to California’s. In California, two exemptions to disclosure that may apply to video surveillance are that the data are records that are the subject of a pending law enforcement investigation570 and/or that the public interest in non-disclosure outweighs the public interest in disclosure.571 Assuming that a transit agency is subject to a FOIA-type law, the statute may include one or more exemptions pursuant to which a transit agency would be able to withhold surveillance data. First, a public records disclosure law may exempt certain personal data from disclosure. Section 31490 of the California Streets & Highways Code includes privacy protections for travel and transit data collected by transit and toll road agencies. Although § 31490 imposes restrictions on the dissemination of PII, the term PII does not include photographic or video recordings.555 The California Government Code provides that “[u]nless otherwise prohibited by law, any agency that has information that consti- tutes an identifiable public record not exempt from disclosure pursuant to this chapter that is in an electronic format shall make that information avail- able in an electronic format when requested by any person….”556 Another California statute permits the City and County of San Francisco to install automated forward-facing parking control devices on city- owned public transit vehicles to take video images of parking violations in transit-only traffic lanes.557 Because the video images are confidential, public agencies may allow access to the records only for the purposes authorized by the statute.558 In Pennsylvania, it is not necessary to disclose “[a] record, the disclosure of which would be reason- ably likely to result in a substantial and demonstra- ble risk of physical harm to the personal security of an individual.”559 A Michigan exemption protects “[i]nformation of a personal nature” from disclosure “if public disclosure…would constitute a clearly unwarranted invasion of an individual’s privacy.”560 Illinois prohibits inspection and copying of “[p]rivate information, unless disclosure is required by another provision of [the Illinois FOIA], a state or federal law or court order.”561 Illinois provides that personal information contained in public records may not be inspected or copied if the disclosure would constitute “a clearly unwarranted invasion of 555 cal. StS. & hiGh coDe § 31490(o) (2017). 556 cal. GoV’t coDe § 6253.9(a) (2017). 557 cal. Veh. coDe § 40240(a) (2017). 558 cal. Veh. coDe § 40240(f) (2017). 559 65 Pa. conS. Stat. §§ 67.708(b)(1)(ii) (2017). See also, Dorothy J. Glancy, Privacy on the Open Road, 30 ohio n.u.l. reV. 295, 301 (2004). 560 Mich. coMP. laWS SerV. § 15.231, et seq. (2017) and see id. § 15.243(a) (2017). See also, Michigan Fed’n of Teachers v. University of Michigan, 753 N.W.2d 28 (Mich. 2008) (holding that names and addresses of teachers were part of a FOIA privacy exemption and therefore could not be disclosed). 561 5 ILCS 140/7(1)(b) (2017). 562 5 ILCS 140/7(1)(c) (2017). 563 5 ILCS 140/7(a) (2017). 564 See N.Y. Pub. off. § 87(2)(a) (2017) and WiS. Stat. § 19.36(1) (2017). 565 fla. Stat. § 119.071(3)(a)(1) (2017). See also, Fla. Att’y Gen. Advisory Legal Op. 2015-06 (April 16, 2015) (stating that “[s]urveillance tapes from a security system for a public building constitute information which reveals a security system which is confidential pursuant to sec- tions 119.071(3)(a) and 281.301, Florida Statutes”). 566 Cent. Fla. Reg’l Transp. Auth. v. Post-Newsweek Stations Orlando, Inc., 157 So.3d 401, 405 (Fla. 5th DCA 2015). 567 2014 N.Y. Misc. LEXIS 3473, at *1 (Sup. Ct. N.Y. Cnty. 2014). 568 Id. at *6. 569 Id. at *6–7. 570 cal. GoV’t coDe §§ 6254 (f) and (f)(2) (2017). 571 cal. GoV’t coDe § 6255 (2017).

41 In KSTP-TV v. Metropolitan Council,581 the issue was how video data should be classified under the Data Practices Act. KSTP-TV requested videos that recorded two incidents and the drivers of Metro Transit buses. Metro Transit, a division of the Metropolitan Council, denied the request on the basis that the videos contained non-disclosable, private personnel data on the bus drivers.582 One issue was how the video data should be classified under the Data Practices Act.583 One of the excep- tions in the Data Practices Act is for personnel data, a term that is defined as data on an individual when the individual is or was an employee of a government entity.584 The Minnesota Supreme Court held that under the Minnesota statute “‘the classification of data is determined by the law applicable to the data at the time a request for access to the data is made, regardless of the data’s classification at the time it was collected, created, or received.’”585 However, because the record failed to include facts that were necessary to permit the court to determine whether the data were public data or private personnel data when KSTP made its request, the court remanded the case.586 B. Transit Agency Policies and Practices on Release to a Requestor of Video Surveillance Data The San Diego Metropolitan Transit System’s policy is to work with a requestor to narrow a request “to a specific 10–15 minute period or to identify a specific incident that we may have a record of—in order to locate the video of a specific incident.”587 Otherwise, the San Diego Metropolitan Transit System may comply with the request by contracting with its video system consultant at an approximate charge of $100 per hour paid by the requestor.588 C. Agency Waiver of Privacy Exemption Exemptions under a FOIA or similar legislation may be waived. It has been held, for example, that if a federal agency voluntarily discloses information that is subject to the FOIA’s deliberative process priv- ilege, the agency waives the right to claim later that A District of Columbia case, Wemhoff v. District of Columbia,572 involved the secondary uses of roadside- collected data. The plaintiff made a FOIA request for the names and addresses of motorists who received traffic violations because of being photographed by a red-light camera. The court’s examination of the rele- vant provision of the DPPA focused on the impor- tance of maintaining drivers’ privacy states, “This [narrow] construction ensures that individuals’ stat- utorily recognized rights to the privacy of their motor vehicle records are not sacrificed whenever a litigant raises the possibility of a tenuous connection between the protected information and issues tangentially related to a conceivable litigation strategy.”573 The court denied the request because it was not a “permissible use” within the meaning of the DPPA, and the disclosure would violate the DPPA and District of Columbia law.574 The City of Pittsburgh, Pennsylvania Code of Ordinances, prohibits the dissemination of surveil- lance video to third parties, including private litigants, unless a matter involves alleged police misconduct.575 However, criminal defendants may obtain video records from the city relevant to criminal charges against them.576 The state of Washington’s approach is different because the state “requires state and local agencies to disclose public records upon request.”577 The state has decided that surveillance videos are public records because they contain infor- mation “relating” to government conduct.578 One issue that has been litigated is the date that data are to be classified for the purposes of a request. The Minnesota Government Data Practices Act (Data Practices Act) governs public access to information maintained by government agencies in Minnesota.579 The Act “regulates the collection, creation, storage, maintenance, dissemination, and access to govern- ment data in government entities” and “establishes a presumption that government data are public and are accessible by the public for both inspection and copying unless there is federal law, a state statute, or a temporary classification of data that provides that certain data are not public.”580 572 887 A.2d 1004 (D.C. 2005). 573 Id. at 1011 (citing Pichler v. UNITE, 339 F. Supp. 2d 665, 668 (E.D. Pa. 2004) (internal quotation marks omitted)). 574 Id. at 1012. 575 City of Pittsburgh, Pennsylvania Code of Ordinances §§ 683.01(a) and 683.06 (2017). 576 Id. at § 683.05(a) (2017). 577 Jane Does 1-15 v. King County, 192 Wash. App. 10, 19, 366 P.3d 936, 943 (Wash. Ct. App. 2015). 578 Id. at 23, 366 P.3d at 943. 579 Minn. Stat. § 13.01 (2017). 580 Minn. Stat. § 13.01, subdiv. 3 (2017). 581 884 N.W.2d 342 (Minn. 2016). 582 Id. at 343. 583 Id. 584 Minn. Stat. § 13.43, subdiv. 1. 585 KSTP-TV, 884 N.W.2d at 349 (quoting Minn. Stat. § 13.03, subdiv. 9). 586 Id. at 350. 587 Landers, supra note 15, at 245. 588 Id. The Landers article also identifies some of the issues to consider when responding to requests for video surveillance records. See id. at 245–46.