Hamilton police drop fight to keep information secret on cellphone surveillance

Since Hamilton police's media officer told CBC News that the service doesn’t use the technology, the police service says it will no longer fight to keep information about possible use of cellphone surveillance secret in an ongoing freedom-of-information appeal.
Police have described IMSI catchers as a 'vital tool,' used under warrant, to help pinpoint suspects. But civil liberties groups say there's a lack of transparency and oversight in how police deploy the devices. In Hamilton, police say they don't have and haven't used the technology. (Reuters)

Hamilton police have dropped their fight to keep secret whether or not the service owns or uses cellphone surveillance technology.

The police service had been wrestling with CBC Hamilton in a lengthy appeal with the province's Information and Privacy Commissioner (IPC), which serves to decide contentious issues about freedom of information in Ontario.

But the fight became moot last month when the service abruptly changed course and told CBC News the service doesn't have the technology, and had not used it for any investigations in 2015 or 2016. 

Hamilton Police Service had warned in arguments to the IPC that the "criminal element" would flourish if the service was forced to reveal whether or not it owned or used cellphone surveillance technology. The response came in regards to a CBC national story about local police forces using the technology.

The service had argued in January, in response to a CBC Hamilton Freedom of Information request, 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."

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

The police have now written to the IPC and to CBC Hamilton to "revise" its decision from June 2016, in which the service refused to confirm or deny the existence of records that would match the CBC Hamilton request filed in May 2016, citing the possibility that disclosure could either reveal investigative techniques used or possibly being used by police.

The technology CBC Hamilton was asking about 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. 

In the new decision letter, the service's freedom of information coordinator wrote that since the service's media officer had recently told CBC News that the service doesn't use the technology, the institution will no longer fight to keep the information secret in the ongoing IPC appeal.

In the revised decision, the coordinator said that Hamilton Police Service has no records relating to the acquisition and/or use of the cellphone surveillance technology, including solicitation letters or correspondence with companies that sell the devices.

No comment on change in position

After a police services board meeting on April 13, CBC Hamilton asked the chief about the change in response.

Girt said he stood by that 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.​

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

But, Girt also said he had not recently reviewed the service's arguments and asked CBC Hamilton to send a new interview request through the media relations department.

But three weeks later, the chief's executive officer said those answers would not be coming.

"In response to your below inquiries the Hamilton Police Service will not be making any further comment on this technology," said Staff Sgt. Andrea Torrie. 

kelly.bennett@cbc.ca