Unlocking a phone with facial recognition

To Whom It May Concern:

Pursuant to the Vermont Public Records Act, I am requesting an email attachment sent from Det. Morgan Lawton to CUSI on November 28, 2016. The filename of the attachment is "Info - Unlocking a Phone with Facial Recognition.pdf". The original email (without the attachment I am seeking) is attached to this message for reference.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes. In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not. Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 3 business days, as the statute requires.

Sincerely,
Brian Waters

Hello Chief Hoague,

This is an appeal of a public records request, in which I sought a PDF email attachment sent out to the High Tech Crime Consortium listserv in 2016 or earlier. Your department denied my request, citing the following laws:

1 V.S.A. § 317 (c)(1)
1 V.S.A. § 317 (c)(2)
1 V.S.A. § 317 (c)(5)(A)(v)

(c)(1) and (c)(2) state that a record is exempt from disclosure if they are specifically designated as confidential by another law. However, your department has not made reference to any other law, and I am not aware of one which would prohibit disclosure of email attachments to a member of the general public.

Your staff further cites 1 V.S.A. § 317 (c)(5)(A)(v), summarizing it as "would disclose techniques and procedures for law enforcement investigations or prosecutions". However, this is only a partial quote from this section. In full, it reads: "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law". It is unclear how the contents of the requested documents could reasonably be expected to risk circumvention of the law, especially considering that the documents deal with smartphone technology and are at least five years old, and were posted to a widely-circulated listserv.

According to the Vermont Public Records Act and much court precedent, the act is to be "construed liberally" in favor of disclosure, and "the burden of proof shall be on the public agency to sustain its action" (see 1 V.S.A. § 315). Therefore, if your agency cannot address the discrepancies outlined above, then it should release the documents as soon as possible. If the documents cannot be released in full due to the above or other exemptions to the Vermont Public Records Act, then they should be released in a form in which exempt information is redacted on a case-by-case basis.

Thank you,
Brian Waters

Chief Hoague,

Thanks for your work on this, it's much appreciated.

Thanks,
Brian Waters