Update: See update at the end of the story.
Rumors have been circulating in Calloway County for months regarding secret audio recordings in the courthouse. WKMS News investigated the rumors, the cameras and how county officials are addressing the concern.
The investigation began on a concern involving surveillance cameras in the offices of the Calloway County Clerk and Property Valuation Administrator recording audio. Since then, WKMS News has conducted hours of interview and received hundreds of documents.
WKMS can confirm that from as early as the camera installation in February 2016, the commons areas of the PVA and County Clerk's offices, as well as in the common hallway, have been under both audio and video surveillance. During this time, there were no notices informing the public that they were under surveillance and that sensitive information, such as social security and credit card numbers, may have been recorded.
Rumors that select members of the Calloway County courthouse staff allegedly held watch parties involving the recorded footage turned out, based on interviews, not to be true. Judge/Executive Larry Elkins called that rumor "absolutely false" and "ridiculous." Deputy Judge/Executive Bill Marcum said he had no reason to watch footage. He added that the only time he watched playback involved a dispute in the PVA office (see below). Officials also denied any eavesdropping or malicious use involving camera surveillance.
Camera Background
Elkins said the cameras were installed in February 2016 by Houston Security Company out of concern for the safety of the staff as well as the Confederate statue on the outside square. A purchase order dated February 26, 2016 indicates the system costs $9,870 for 11 cameras and a recorder and television monitor.
Clayton Hendricks, Calloway County Road Supervisor and 911 Addressing Supervisor, is the point person for the security cameras. Hendricks oversaw the installation and has the code to access the equipment playback. Should anyone request playback, Hendricks is the person who would conduct such activity. He said if he were asked to review playback he’d have to refer to an instruction manual since he doesn’t do it very often.
As to what the audio sounds like, Hendricks said, “you and me talking.” He said if there’s a lot of noise in the room it’s hard to tell what’s being said but added that he doesn’t really listen to content.
Who Knew The Cameras Recorded Audio?
Hendricks said that at the outset of the installation, courthouse department heads were made aware of the audio capabilities of the cameras. Department heads were also aware of, and had installed, an application on their smartphones to watch the live feeds of the cameras - including audio in the cameras that had such capability. That app, however, does not allow for playback.
“Everybody knew from the beginning," said Hendricks. "We went and showed them all of what was going on, where they wanted to put them and stuff like that." He clarified that he’s confident he informed Clerk Antonia Faulkner and PVA Nikki McMillen-Crouch of both audio and video recording. There are no records of that communication according to documents turned over by the county. Finance and Personnel Officer Gidget Manning also said the department heads knew around the time of the February 2016 installation that the cameras had audio capabilities.
Neither Crouch nor Faulkner could recall whether they were told at the time of the installation that the cameras captured both audio and video. “We knew the cameras were going in but we did not originally know that audio was going in and it may have just been that they just assumed that we thought that audio was going in when the cameras went in, in the beginning,” said Crouch.
“All the department heads were aware of all the system that was put in,” said Marcum.
“I was told that the original camera had audio…,” said Elkins. “There was no doubt that at one time it had audio.” While he said he watches the live feeds regularly, he does not have the master code for playback and has never authorized or been present in times the playback feature was used. He said he has never reviewed video and audio from the cameras.
PVA Office Dispute
At some point between the February 2016 installation and a March 2018 incident in the PVA office, Crouch said she had the audio capabilities in her camera disabled. She couldn't pinpoint the date and there were no supporting financial records indicating when that work had taken place.
The issue of who knew what about the cameras and when escalated following a verbal dispute in the PVA office in March 2018 involving a couple upset about their taxes. Crouch said she was not in her office at the time of this dispute and had asked Marcum (whose office at the time was down the hallway) to help.
Manning said following the incident, she and other county officials, including Hendricks, Crouch, Marcum and one or two employees from the PVA office reviewed footage of the dispute. Crouch, however, said she was not at this gathering and has neither seen nor heard playback footage. The review took place in Elkins’ office where the receiver is located. Elkins said he was not part of this review.
During this review, which was described by Manning as an informal gathering, officials learned there was no sound and thought the PVA camera was broken. Manning said Hendricks put the footage on a 'jump drive' and attempted to get the audio to work at home, but with no such luck.
Crouch said she was made aware of the predicament involving her camera. “It was brought up then that I didn’t have audio at that time in here. And I had said that was fine. I didn’t want audio because I truly believe you can tell by somebody’s expressions if they’re mad or happy, or whatever.”
She said they wouldn’t have heard any sound because at some point between the February 2016 installation and the March 2018 dispute, she had the audio capabilities disabled. "I haven't had audio for a long time," she said and suggested this work was done about a year ago. She couldn't pinpoint the date and there were no supporting financial records indicating when that work had taken place.
Neither Hendricks nor Manning said they were aware that Crouch had the audio in her camera disabled. "If we had known there wasn't audio, we wouldn't have wasted an hour and a half of our time trying to pull footage to listen to it," Manning said.
Replacing The Camera
Manning said there was a general consensus at the time to replace the PVA camera with one capable of audio and didn't think it was a big deal. As to who specifically determined the camera needed to be "fixed," Manning said she couldn't recall. Hendricks also said he doesn’t recall anyone saying the camera needed to be fixed to have the audio restored.
Manning explained that she may have placed the call to Total Tech Solutions (the company responsible for various tech work for the County), but couldn't recall with certainty. She said she may have instructed Total Tech to install the camera when convenient, such as while they conducted other IT work on a service call. She said if she had placed the call, it would have been to simply replace the camera that she and others perceived to be 'broken' with one that had functioning audio. She made it clear that she thought the camera was broken.
Crouch said Marcum had expressed concern that there was not audio in the camera in her office, to which she replied she did not want audio. “Ben (Helmerich - former co-owner of Total Tech, who no longer works for the company), had come and told me that they were looking at putting audio in here. I said ‘No they’re not. There will not be audio put back in here.’” She said Total Tech knew she did not want audio but said it got put in anyway.
When asked when she realized the camera had been replaced, she said, “I kind of had a suspicion a couple of days later one of the girls was like, ‘hey our camera looks different.’ It did. They’re not lying.”
Crouch said this work was done late one night in May, the same time she had a new TV installed in her office. Total Tech, at the time, had a key to her office. Crouch said this is no longer the case. A June purchase order to Total Tech for work involving “Test Camera - upgrade - Clerk,” “Camera P.V.A.” “Replace Camera - Clerk” totaled $1,235.
In an email correspondence beginning July 20, Crouch asked Robinson about that camera work. “I needed somebody to tell me, ‘yes it’s in here’ so I could say ‘hey, let’s get it out.’”
Robinson replied, “Please know the only audio recording device I am aware of that was in your office is the one camera that was replaced in your main area the night that the television was hung at Ben’s direction and I am uncertain whom instructed Ben to replace the camera, why they wanted audio, and why they wanted it installed without your knowledge.” Helmerich refused an interview with WKMS News.
Subsequent correspondence between Robinson, Crouch, Faulkner and Elkins show Robinson quickly resolved the matter by disabling audio in the cameras in both offices. "At Total Tech we try to do good work and we always try to be honest and forthcoming with it. I'm sad that this has become an issue and we kind of got in the middle of it,” Robinson told WKMS News. He also said he changed the master code on the system after disabling the audio.
"The only thing I know for certain is you walk into that courthouse today there's no camera that's going to be recording any audio. That is fact,” he said.
Department heads explained that work involving their offices, such as camera replacement, would be need approval through Elkins’ office. WKMS News requested correspondence between Marcum and Elkins with regard to surveillance. Calloway County Attorney Bryan Ernstberger responded in a letter stating that there was no such correspondence.
Elkins said he didn't request to have the camera replaced in the PVA office following the incident and said he didn't recall anyone coming to him for approval on this matter. He said it was his understanding that the office holders were fully aware of any and all work done on their cameras. He indicated he was not familiar with the work completed in May that included the replacement of the PVA camera. He said Crouch had approached him two or three months ago, perhaps further back, with concern over audio in her camera.
Why The Concern Over Audio?
Crouch said she was uncomfortable with audio recording in her office. “I want you to be able to come and talk to me and not worry about who’s listening to us. What happens in this office is nobody else’s business. Nobody should ever be worried about their social security getting out or their federal ID numbers getting out. I want them to feel safe to come in here and talk to me.”
Faulkner echoed the concern and said she wanted the audio removed to keep the privacy of conversations that may happen in a clerk’s office. In an email to Robinson, Faulkner wrote, “I feel like it will be best that the sound is turned off. Our customers give out personal information that may be used if in the wrong hands and it is not feasible to announce the recording to each customer.”
Should The Cameras Be Recording Audio In The First Place?
Jon Fleishaker is an attorney based in Louisville with more than 40 years of experience in media law and first amendment cases. He said audio surveillance is an issue involving right to privacy, eavesdropping and a recording of conversation to which one is not necessarily a party.
While Kentucky’s one-party consent rule might apply to a conversation in an office, he said recording in a lobby someone speaking to their friend or lawyer or relative without permission could be potentially illegal. “The wholesale recording of conversations without any particular reason in terms of a particular situation seems to me to raise some serious questions as to the invasion of privacy and the collection and potential misuse of confidential information,” Fleishaker said.
“I think in the general public areas it is at least questionable whether a one-party consent would apply to the recording of a purely private conversation,” Fleishaker said. A conversation between a clerk and a member of the general public is one thing, but the issue could be problematic if two members of the public are having a private conversation, say while waiting in line, and if that conversation is recorded by the clerk.
He also said there’s not a guarantee that personal information gathered in the audio, such as credit cards or social security numbers couldn’t be leaked or hacked from the recording device.
“Everything in the possession of a public agency is a public record. So by definition that audio recording is a public record. So it is available for anybody to make a request and then they would have to go through that audio to see if there’s any information in there that is mandated to be made exempt from disclosure by the open record law or by a federal or state law,” Fleishaker said. Should that audio be requested, then someone would have to go through the audio and redact private information. “They’re opening themselves up to a really, really difficult situation here,” he said.
According to the State Archives and Records Commission “State Agency Records Retention Schedule” for local governments, there is no restriction to access to surveillance video/audio recordings. Local governments are required to retain this information for 30 days and then can destroy or re-use if there is no pending litigation.
County Attorney Bryan Ernstberger stated in a September 10 response to a WKMS News records request for audio from courthouse surveillance cameras that “no audio recordings exist.” The letter acknowledged the 30-day retention rule and further states that the audio function has not been used within the last 30 days.
Should There Be Signage?
Could something as simple as a clearly displayed sign that read ‘this premises is under video and audio surveillance’ have covered the issue? Fleishaker suggested an argument could be made such a sign would be adequate and went further to add “please be aware that your conversations may be recorded.”
Elkins said to his knowledge there is, and never was, signage with regard to audio/video surveillance of the building. Manning said most people assume they’re being recorded when they walk into public buildings.
"Obviously, when you're doing security you don't tell everyone what your security measures are,” said Elkins. He added, however, that if a department head wanted a sign, he would allow them to post one. Furthermore, he said if department heads wanted camera angles changed or the cameras removed all together he'd gladly comply.
Both the PVA and the Clerk indicated a desire for a sign. Crouch said, “I don’t know whose responsibility it is to put the signs up. If I need to put one up, if it’s my responsibility, I’d be more than happy to.” Faulkner said it’s better for customers to know than not to, “and that’s the lessons I’ve learned.” She said there is not a sign telling people about video surveillance, but added: “I think there will be now.”
Hendricks said, “Signs are only as good as the people that read them,” but added that the inclusion of signs, “wouldn’t hurt anything.”
Concerning the use of security cameras, Fleishaker said, “One of the problems with security is it could be used as an excuse to have massive invasions of privacy. And that’s what you’re seeing. Privacy is protected. And just because there’s some academic concern about security does not necessarily allow or justify certain intrusions.”
Update December 13, 2018
Since the publication of this story, signs have been posted at the entrances to the courthouse notifying the public of video surveillance in use on the premises.
