Hamilton Police Service warned the "criminal element" would flourish if the service was forced to reveal whether or not it owned or used cellphone surveillance technology.

In response to a CBC Hamilton Freedom of Information request, the service argued in January that "broader public interest is best served with the public having faith in the institution, knowing we won't give criminal access to our investigative techniques."

It invoked possibilities of terrorism and increased crime as reasons not to provide documents to a CBC Hamilton reporter. The police have been fighting the freedom-of-information request for nearly a year.

"The disclosure of even minor details could harm law enforcement by letting adversaries put together the pieces of technology like a jigsaw puzzle," the service argued.

But then, as broader national scrutiny of the use of the technology by local police forces intensified, the service abruptly changed course and admitted last week it didn't have it or use it.

Chief Eric Girt said Thursday that there was an "inconsistency" in response, but said there was nothing nefarious behind it.

The province's Information and Privacy Commissioner (IPC) said it was unprecedented to have a public media statement come out contradicting an agency's position on releasing information at the same time it's actively fighting to keep it secret. 

'The criminal element would then feel able to operate... unchecked, undetected'

Last June, Hamilton police denied a request by CBC Hamilton under the Municipal Freedom of Information and Protection of Privacy Act to see any records relating to the service's acquisition and/or use of the technology. 

The technology acts like a cell tower to secretly intercept and track cell phone calls and data in a particular radius. The devices are known as IMSI catchers, cell site simulators, mobile device identifiers (MDIs), and some are known by the brand name Stingray. 

How an IMSI catcher works.

Depending on the device and surveillance approach used, an IMSI catcher can cast a wide net designed to harvest data transmissions from any cellular device within range, rather than target only the person of interest to law enforcement. It functions by fooling cellphones into believing it is a legitimate cellphone tower. (CBC News)

The service refused "to confirm or deny the existence of a record," citing the possibility that disclosure could either reveal investigative techniques used or possibly being used by police.

After CBC Hamilton appealed that refusal, the Hamilton Police Service painted a dire picture to the IPC of what would happen, even if it revealed it didn't have the devices:

"If it was known that an institution did in fact not have a cell site simulator, the criminal element would then feel able to operate in such a fashion that they could go unchecked, undetected, which could facilitate their criminal activity. 

"On the other hand, the criminal element may be operating under the assumption that the institution has cell site simulators, therefore hindering their criminal activity.

"In the broader sense, for example, if the public knew that the institution no longer had roadside breathalyzers, there is an impression that there would be an increase commission of the unlawful act of impaired driving."   

CBC reporter 'looking to write an article for her own professional gain'

And in those submissions, the police service also argued a justification for not revealing the documents was what it considered the suspect motives of CBC Hamilton reporter Kelly Bennett, who filed the initial request and has appealed the refusal to the province.

"We do not believe the requester has a sympathetic or compelling need to receive the information," Hamilton police wrote. "The appellant is from the media and is looking to write an article for her own professional gain."

"If it was known that an institution did in fact not have a [device], the criminal element would then feel able to operate ... unchecked, undetected." - Hamilton Police Service submission to Information and Privacy Commissioner of Ontario in response to a CBC Hamilton request

Civil rights groups across the country have raised concerns about the devices, which, depending on the model, could enable officers to secretly monitor phone calls and anything transmitted from mobile phones, like text messages, photos and location information. Some gather information from the phones of bystanders nearby.

That appeal through the province is ongoing and police have not backed away from their stance not to confirm or deny the existence of records related to the request.

How an IMSI catcher works

IMSI catchers pretend to be a cellphone tower to attract nearby cell signals. When it does it can intercept the unique ID number associated with your phone, the International Mobile Subscriber Identity or IMSI. That number then can be used to track your phone. (CBC)

Meanwhile, last Wednesday, Hamilton police spokesperson Const. Stephen Welton told CBC News the service doesn't have the technology, and had not used it for any investigations in 2015 or 2016. The response came in regards to a CBC national story about local police forces using the technology.

'Why the RCMP decided to do what it did, I have no idea'

Brian Beamish, Ontario's Information and Privacy Commissioner, said in a statement that it's not uncommon for institutions to change their original decision during the mediation or decision process through the IPC.

But usually when they do, they do so through the appeal process.

"We are unaware of any other situations where the release of information has come out in a statement to the media," he said.

Welton later explained to CBC Hamilton he didn't know about what was happening in the freedom of information process. He suggested CBC Hamilton forward the information he'd provided to the IPC to add to the appeal file.

Girt said he wanted to review the service's previous comments about the "criminal element" going "unchecked, undetected" before commenting further. But he also said he stood by that commentary as an argument against disclosure "at the time the comment was made" earlier this year.

He said the RCMP's decision to go public in recent weeks with its use of the devices changed the context around the technology.

Jeff Adam

RCMP Chief Supt. Jeff Adam confirmed earlier this month that the national police force is using cellphone-tracking devices known as IMSI catchers. (Patrick Doyle/The Toronto Star)

The RCMP publicly confirmed for the first time it owns 10 devices but insisted it cannot currently intercept calls, text messages and other private communication.

"Why the RCMP decided to do what it did, I have no idea, you'll have to check with them," Girt said.

Now that some information is in the public domain, it is unclear what will happen now with the appeal, which has stretched on for nearly a year since CBC Hamilton's initial request for information about the service's use of the technology in May 2016.

kelly.bennett@cbc.ca