The American Civil Liberties Union of New Hampshire and the Concord Monitor are suing the city of Concord to court over a secret type of technology used by police.
A $5,100 line item in this year’s police department budget was set aside for “covert communications equipment.” City officials have argued that they can’t say what the equipment is and what it does – or even which company offers it – because of a nondisclosure agreement with the vendor.
A heavily-redacted license and service agreement the city provided to the Monitor and the ACLU shed little light on the situation. Now the ACLU is arguing the city needs to provide more information.
“Using taxpayer money to fund secret police equipment is deeply troubling. The public has a right to know what the City of Concord and its police department spend their money on, and why the city wants to keep this secret equipment hidden from public view,” ACLU attorney Henry Klementowicz. “This right-to-know request is at the very heart of what the law was designed to do: promote transparency.”
The Monitor requested access to documents related to the covert equipment, arguing every citizen “the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies.”
Concord police Chief Bradley Osgood said the city could not release the information because it would disclose techniques and procedures for law enforcement investigations.
“The disclosure of this information could compromise the effectiveness of the technology and allow individuals who are the subjects of investigations to employ countermeasures, and such disclosure could also compromise criminal investigations and endanger the lives and physical safety of the lawn enforcement officers who utilize the technology,” Osgood wrote.
Klementowicz argued that the city cannot prove that releasing the agreement would imperil police activities.
Publicly, Osgood has said the city has been using the equipment for years and that the equipment is used by many police departments across the country.
City Manager Tom Aspell has said the equipment isn’t body cameras or drones.
The contract for the service was signed Oct. 28, 2017 by former Concord purchasing manager Douglas Ross and states the vendor’s “Website, Applications, or Services” can be used by the city. There isn’t much description of what the company does aside from it offering “technical products and services to law enforcement agencies.”
Redactions in the policy include the vendor’s name, what kind of information it collects and its privacy policy.
The agreement also has stringent confidentiality rules.
“Publicly disclosing the existence, description, functions, operations, capabilities, or use of the website … could compromise the effectiveness of the technology,” the agreement reads in capital letters.
The agreement also says disclosing the use of the vendor’s services could compromise “public security investigations” and endanger law enforcement lives.
Should Concord learn that anyone – district attorneys, judges or members of the public, for example – are planning to use the information the vendor collects, obtain it through open records laws, or if a judicial or administrative tribunal orders its release, the city is required to notify the secret vendor.
“Licensee will immediately inform (redacted) and cooperate in any effort by (redacted) to intervene and prevent such use or disclosure,” the agreement reads.
Klementowicz said the agreement raises “troubling” questions about the technology and the kind of information the city has been gathering.
“Concord’s effort to keep secret its contract for services and the vendor’s privacy and refund policies should be rejected,” the suit states. “While the nature of equipment the city has purchased is not clear, what is clear is that the city has entered into a non-disclosure agreement with an unnamed vendor that requi res the city to take steps to prevent disclosure of important information to courts, grand juries, and defense counsel.”