By Matthew R. Elliott, Faegre Baker Daniels LLP
Recently, the Office of the Indiana Attorney General issued an advisory opinion addressing the legal implications of the Office of the Indiana State Chemist (OISC) using drone technology in an administrative inspection. The opinion considers the following questions:
- Would the OISC’s use of drones qualify under any type of law enforcement exclusion?
- Would the OISC’s use of drones constitute a “trespass” or “unlawful photography and surveillance on" real property?
- How is the legal analysis impacted if the OISC uses infrared, multispectral, hyperspectral, or LID AR (Light Detection and Ranging) lenses?
- Should the OISC provide prior notice that it will conduct an inspection using drone technology?
- How is the legal analysis impacted if the OISC employs a third-party contractor?
- What are the public records implications of using drone technology?
In short, the Attorney General’s office concluded the following:
“The OISC’s use of drones in an administrative inspection would not constitute a civil or criminal trespass or an unlawful surveillance. That said, when using drone technology, the OISC should be mindful of limitations imposed by the Fourth Amendment to the United States Constitution, requirements under federal law and regulation, and the scope of its statutory inspection authority. Data obtained by a drone, whether operated by an employee of the OISC or a contractor on behalf of the OISC, should be construed as a public record under the Indiana Access to Public Records Act and deemed disclosable unless there is an applicable statutory exception.”
The full advisory opinion can be found here.
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