23FC:0127- Hendrick van Pelt/City of Clive - Dismissal Order

The Iowa Public Information Board

COMES NOW, Erika Eckley, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.

Facts

Hendrik van Pelt filed formal complaint 23FC:0127 on November 22, 2023, alleging that the City of Clive (“City”) violated Iowa Code chapter 22 on November 6, 2023.

Mr. van Pelt alleges the City did not provide all records he believes should have been included in the request he made on October 17, 2023. In his record request, he asked the city for records created through a third-party system, Flock Safety. These records are accessible to the City under the terms of an agreement between the City’s Police Department and Flock Safety. He requested data collected from several Flock Safety Falcon devices during a specific period, believing these to be records subject to the provisions of Chapter 22.

Specifically, Mr. van Pelt requested “[d]ata acquired through the Flock Safety systems installed at 100th & Hickman SB, Hickman & 100th EB, Swanson & 100th EB, 100th & University Ave, and – if applicable – any other Flock Safety or similar hardware installed in the area between 104th St and 90th St, bounded by University Ave and Hickman Rd for October 16, 2023, between 9am and 5pm. I am requesting copies of all sensor data originating from the hardware, including but not limited to license plate numbers, photos, and videos, preferably, but not necessarily, electronically.”

The City denied Mr. van Pelt’s request stating, “As the City understands your request, the requested data qualifies as investigative reports from the Clive City Police Department and include ‘intelligence data’ such that they constitute ‘confidential records’ that are prohibited from disclosure pursuant to Iowa Code Sections 22.7(5) and (55) and Iowa Code Chapter 692. In accordance with Iowa Code Chapter 22 and Iowa Code Chapter 692, the City is only authorized to produce such information in response to a subpoena or court order or for other specified purposes as set forth in those chapters—none of which we believe are satisfied by your public records request.”

Mr. van Pelt disagrees the City is a criminal justice agency or the requested data is confidential under Iowa Code § 22.7(5) or § 22.7(55).

What are Flock Safety Services?

To review this Complaint, it is important to understand a little more regarding the underlying Services creating the data, the limitations on the data, and the rights and responsibilities of the parties to the Agreement.

Flock Safety provides license plate recognition system services. The System, as defined by the City’s Police Department Policy and Procedure Manual, “is a series of stationary license plate reading cameras positioned at strategic locations throughout the City of Clive and programmed to capture rear images of vehicle license plates and limited vehicle information that may include the make, model, color, and other physical descriptors as they travel on public roadways.”

The system provides “‘Alerts’ to police officers on suspected wanted persons, stolen vehicles, and vehicles from custom hotlists.”

Mr. van Pelt’s request seeks the data making up footage from four Flock Safety cameras. This footage includes close-up views of vehicle license plates, the location the vehicle is in, timestamps, and still photos of every car that passes through the locations within the camera’s view.

The Services Agreement Order Form clearly states the customer is City of Clive – Police Department. And under the definitions of the Government Agency Agreement, “‘Agency data’ means the data, media and content provided by Agency through the Services. For the avoidance of doubt, the Agency Data will include the Footage.” “Footage” means “still images, video, audio and other data captured by the Flock Hardware or Agency Hardware in the course of and provided via the Services.” In addition, “[a]s between Flock and Agency, all right, title and interest in the Agency Data, belonging to and are retained solely by the Agency.”

Under the terms of the contract between the City and Flock Safety, “Flock deletes all “Footage on a rolling thirty (30) day basis, excluding Wing Replay, which is deleted after seven (7) days. Agency is responsible for extracting, downloading and archiving Footage from the Flock system on its own storage devices for auditing for prosecutorial/administrative purposes.” 

The Agreement further requires that Flock Safety provides the Services to the Agency “solely for the awareness, prevention, and prosecution of crime, bona fide investigations by police departments, and archiving for evidence gathering” The “Parties may access, use, preserve and/or disclose the Footage to law enforcement authorities, government officials, and/or third Parties, if legally required to do so or if the Disclosing Party has a good faith belief that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with a legal process or request; (b) enforce this Agreement, including investigation of any potential violation thereof; (c) detect, prevent, or otherwise address security, fraud or technical issues; or (d) protect the rights, property or safety of the Disclosing Party, its users, a third Party, or the public as required or permitted by law, including respond to an emergency situation.

Law

“‘Intelligence data’ means information on identifiable individuals compiled in an effort to anticipate, prevent, or monitor possible criminal activity.” Iowa Code § 692.1(14).

“Intelligence data contained in the files of the department of public safety or a criminal or juvenile justice agency may be placed within a computer data storage system, provided that access to the computer data storage system is restricted to authorized employees of the department or criminal or juvenile justice agency.” Iowa Code § 692.8(1).

 “A criminal or juvenile justice agency, state or federal regulatory agency, or a peace officer shall not disseminate intelligence data, which has been received from the department or division or from any other source, outside the agency or the peace officer’s agency unless all of the following apply: a. The intelligence data is for official purposes in connection with prescribed duties of a criminal or juvenile justice agency. b. The agency maintains a list of the agencies, organizations, or persons receiving the intelligence data and the date and purpose of the dissemination. c. The agency disseminating the intelligence data is satisfied that the need to know and the intended use are reasonable.” Iowa Code § 692.8A.

“Intelligence data in the possession of a criminal or juvenile justice agency, state or federal regulatory agency, or peace officer, or disseminated by such agency or peace officer, are confidential records under section 22.7, subsection 55.” Iowa Code § 692.18.

Analysis

Whether the City should have a contract with Flock Safety and whether the services are good, bad, or indifferent are outside the jurisdiction of IPIB.[1] In addition, the City entered into the contract with Flock Systems on behalf of the City’s police department. There is no question the City’s police department is a law enforcement agency or that the City may contract on behalf of a department of the City.[2]

Under the terms of the Agreement between the City and Flock Safety, the data collected belongs to the City, so the data requested by Mr. van Pelt would be a public record under Iowa Code § 22.1.[3] The question, then, is whether the data was improperly withheld by the City as confidential under Iowa Code §§ 22.7(5) or 22.7(55).

In responding to the Complaint, the City stated there was no open investigation impacting the requested data at the time the City received the request. If the data were used and stored as part of a criminal investigation, it is likely the data could be withheld as confidential as part of a police investigative file after appropriate review as required under Iowa Code § 22.7(5) and Mitchell v. Cedar Rapids, 926 N.W.2d 222 (Iowa 2019).

In this situation, however, there is no current investigation and the data is merely available in a computer data storage system, so it must be determined whether the data is intelligence data as defined in Iowa Code § 692.1(14). If so, then under the plain language of Iowa Code § 692.18, the data would be confidential under Iowa Code § 22.7(55).

Are the Records Confidential Under Iowa Code § 22.7(55)?

“‘Intelligence data’ means information on identifiable individuals compiled in an effort to anticipate, prevent, or monitor possible criminal activity.” Iowa Code § 692.1(14). If the Flock Safety data collected contains (1) data or information; (2) compiled to anticipate, prevent, or monitor possible criminal activity; (3) on identifiable individuals, it is intelligence data and would be confidential under Iowa Code § 22.7(55) as well as the limitations within Iowa Code § 692.8A.

Is it Data or Information?

Based on the Services Agreement, the City receives data and footage from Flock Services.[4] Clearly, the City is collecting data or information.

Is it compiled to anticipate, prevent, or monitor criminal activity?

The system utilizes the data and provides “‘Alerts’ to police officers on suspected wanted persons, stolen vehicles, and vehicles from custom hotlists.” The City uses the Flock Safety system for criminal investigation purposes, such as checking license plates related to Amber Alerts[5] or stolen vehicle reports. The Agreement limits services provided “solely for the awareness, prevention, and prosecution of crime, bona fide investigations by police departments, and archiving for evidence gathering.”

The system is used for law enforcement purposes and allows the City’s police department to receive notifications regarding potential criminal activity allowing the department to investigate further after receiving an alert.[6] The system allows for the anticipation, prevention or monitoring of criminal activity.

Is it on identified individuals?

Footage from Flock Safety includes close-up views of vehicle license plates, the location the vehicle is in, timestamps, and still photos of every car that passes through locations within the camera’s view. The police department can enter vehicle license plate information associated with potential criminal activity. Hotlist entries, under the City’s Policy and Procedure Manual must be associated with an active criminal or traffic investigation.[7] 

“‘Individually identified’ means criminal history data which relates to a specific person by one or more of the following means of identification: a. Name and alias, if any. b. Social security number. c. Fingerprints. d. Other index cross-referenced to paragraph “a”, “b”, or “c”. e. Other individually identifying characteristics.” Iowa Code § 692.1(12).

A license plate is an individually identifiable characteristic of the owner of a vehicle.[8] The vehicle license plate and vehicle information are entered into the Flock Safety system precisely because it identifies a characteristic associated with a potential individual who has been or may be involved in criminal activity. 

A license plate is an individually identifying characteristic as it issued to the owner of a vehicle in Iowa. By capturing and flagging license plates tied to potential criminal activity, the Flock System utilizes individually identifying characteristics to notify the City’s police department when these individually identifying characteristics are captured in the data. 

Summary

The data sought by Mr. van Pelt falls within the definition of intelligence data within the possession of the City’s police department, and is therefore confidential under the terms of Iowa Code chapter 692 and Iowa Code § 22.7(55). As such, the City did not violate Iowa Code when it withheld the requested public records as confidential under Iowa Code § 22.7(55).

Conclusion

Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint.  This complaint does not meet those requirements. 

The data requested is a confidential public record under Iowa Code § 22.7(55).

IT IS SO ORDERED:  Formal complaint 23FC:0127 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).  

Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.”  The IPIB will review this Order on March 21, 2024.  Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.

By the IPIB Executive Director

________________________________

Erika Eckley, J.D.

[1] IPIB’s jurisdiction as outlined in Iowa Code chapter 23 involves review of compliance with Iowa’s open meetings and public records laws.

[2] Clive Iowa Ordinance Title 5, Chapter 1 Police Department (“The police department of the city is established to provide for the preservation of peace and enforcement of law and ordinances within the corporate limits of the city…. The police chief has the following powers and duties subject to the approval of the council…)

[3] “‘Public records’ includes all records, documents, tape, or other information, stored or preserved in any medium, of or belonging to this state or any county, city, … or any branch, department, board, bureau, commission, council, or committee of any of the foregoing.”

[4] “‘Agency data’ means the data, media and content provided by Agency through the Services. For the avoidance of doubt, the Agency Data will include the Footage.” “Footage” means “still images, video, audio and other data captured by the Flock Hardware or Agency Hardware

[5] AMBER Alerts are issued when a child has been abducted and there is enough descriptive information about the victim and the abduction to issue an alert to assist in the recovery of the child. This may include a description of a vehicle suspected to be involved and the license plate number of the vehicle.

[6] See Police Department Policy and Procedure Manual LPR Systems  Section II(C) “Alerts” and II(D) “Hotlists.”

[7] Police Department Policy and Procedure Manual LPR Systems  Section II(D) “Hotlists.”

[8] “The county treasurer upon receiving application, accompanied by proper fee, for registration of a vehicle shall issue to the owner … two registration plates for every other motor vehicle. The registration plates, including special registration plates, shall be assigned to the owner of a vehicle. When the owner of a registered vehicle transfers or assigns ownership of the vehicle to another person, the owner shall remove the registration plates from the vehicle.” Iowa Code § 321.34.