By TJ Martinell | The Center Square

(The Center Square) – A state law passed in 2021 envisioned a state police use of force database under the State Attorney General’s Office that would collect information about incidents from law enforcement agencies and make the information available for the public to view and download.

However, concerns are now being raised by law enforcement groups and other stakeholders as to whether the collection of some data could violate state or federal law.

The project is being managed by Washington State University, which was the only bidder for the contract in 2022. The university ultimately signed a contract with the AGO last year.

According to emails obtained by The Center Square, the project managers have sought to obtain data user agreements with 9-11 dispatch centers, also known as public safety answering points, to obtain what is known as computer-aided dispatch data, also known as CAD.

Under a draft data use agreement sent out by WSU and obtained by the Center Square, “each party will limit access to Confidential Information received from another party hereto to those persons having a need to know. Each party shall employ the same reasonable safeguards in receiving, storing, transmitting, and using Confidential Information that prudent organizations normally exercise with respect to their own confidential information of significant value.”

The draft states further that “if a Public Records Act is requested is made to WSU for information under this agreement, WSU will promptly notify the Center of the request, such that Center has the opportunity to seek a court order enjoining disclosure. WSU will work collaboratively with the Center to identify any applicable exemption(s) to disclosure and appropriately redact the information to be released as applicable. The release of data will be limited to only those records that must be released to comply with the request and the Public Records Act.”

This draft DUA was emailed by WSU to Washington State Emergency Management Division Assistant Director Adam Wasserman, who on July 26 sent a copy of the draft to county coordinators and dispatch centers, with a planned discussion of it at their Aug. 15 meeting.

However, those meeting plans were scrapped after Wasserman was contacted by Police Strategies CEO Bob Scales, a former King County deputy prosecutor who was also a potential subcontractor for the police database project. In an Aug. 12 email, he warned Wasserman that providing WSU CAD data would run afoul of the FBI’s Criminal Justice Information System, which regulates how that data is shared, as well as state criminal record privacy laws.

“The problem is WSU is a public university and not a criminal justice agency,” Scales wrote. “There, there is no way to prevent that data from being disclosed in a public records request.”

In an “unofficial” report documenting the database project’s progress, Scales argued that “this could have resulted in criminal prosecutions against the individuals who provided the confidential information to WSU and could also have resulted in the loss of access to FBI criminal justice databases. If law enforcement agencies in Washington were unable to access FBI databases, it would have had catastrophic consequences for public safety.”

Among the public-safety answering points to receive the draft DUA was Wenatchee-based RiverCom 911, which covers Chelan and Douglas counties. Executive Director Doug Jones wrote in an email to The Center Square that “I sent a few clarifying questions to the WSU contact email but have yet to receive a response. The DUA I received was a draft and not specifically for RiverCom 911 so we are far from signing anything, if at all.”

Scales’ concerns have also been shared by others such as the Washington Association of Sheriffs and Police Chiefs. In an Aug. 23 email sent out to members, WASPC wrote that “we have not endorsed nor made any negative recommendations about this program, and have worked to be ‘honest brokers’ to ensure and provide avenues for communication and feedback for WSU and LE agencies, so the university understands the challenges and agencies can better understand the system. We have taken an approach of watching and acting to provide two-way communication.”

However, the email added that “WASPC has received a number of questions from Sheriffs and Chiefs regarding this program. We continue to strongly advise all law enforcement agencies to (as always) work closely with their legal advisors on any questions related to this program. WASPC strongly advises that you consult your legal advisor, your CJIS administrator, and/or the FBI to answer that question. Unless your legal advisor makes clear it does not violate FBI CJIS [CJIS stands for Criminal Justice Information Service] rules, we see issues and strongly encourage your legal counsel to review before proceeding.”

The email concluded: “WASPC has always supported objective transparency in public safety, but continues to have concerns on the impacts of any data collection program on the operations of law enforcement agencies. In addition, I understand that many of the “beta” pilot agencies have asked WSU for further clarification on these issues before proceeding further. We will keep you in the loop as we learn more.”

The email also cites a statement issued to them by the Washington State Patrol ACCESS Section, which told them “if any data shared with WSU contains CJI it would be a compliance issue. CJI is only authorized to be shared with another LEA with an active ORI. We define CJI any data coming back from ACCESS (driver checks, criminal history, warrants, protection orders, etc.). ACCES stands for A Central Computerized Enforcement Service System.

In a separate update to WASPC members, the association wrote that “we will continue to keep a close eye on the progress, and lack thereof.”

According to a WSU document sent to WASPC obtained by The Center Square, the AGO issued a statement to WASPC in August stating that the database program “is not seeking full access to an agency’s CAD system, and any suggestion to the contrary is a mischaracterization of the program. In contrast, only select data elements will be pushed to WADEPS. The purpose of using CAD is to automate part of the data collection process, making it easier and less burdensome for law enforcement agencies.”

There have been prior legal concerns over other types of data collection. When the Advisory Group tasked with coming up with recommendations for the project contemplated collecting public recordings of use of force incidents, AGO attorneys warned it would open their office to legal liability. The Advisory Group’s recommendations approved by the AGO ultimately included a pilot program “feasibility study” to collect public recordings.

Scales has been involved in numerous ethical and legal disputes with both the AGO and WSU, which includes accusations of using proprietary data from his company and racketeering. He recently filed a $42 million tort claim against them both, and the investigation of his accusations was assigned to the AGO’s Tort Claim Division.