Legal Alerts Aug 31, 2017

Automated License Plate Scans Data May Be Disclosed

California Supreme Court Finds Public Record Exemptions Do Not Apply

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Data from automated license plate readers may be disclosed under the California Public Records Act, the state Supreme Court said in a ruling issued today. The case, which pits law enforcement  against open government interests, reaffirms the High Court’s strong support for disclosure under the CPRA and will impact future CPRA litigation related to the growing use of law enforcement technology.
 
Automated license plate readers data collection systems use computer-controlled cameras mounted on fixed structures or on patrol cars. The cameras automatically capture images of vehicle license plates. Then the ALPR system uses character recognition software to check the plate number against a list of plate numbers associated with crimes, child abduction AMBER Alerts or outstanding warrants — a so-called “hot list.” When a match occurs, the system alerts the police. Only about 0.2 percent of scans result in a “hit.” Law enforcement also queries the database retrospectively when new license plate numbers emerge in the course of criminal investigations.
 
The Los Angeles Police Department and Los Angeles County Sheriff’s Department each operate their own ALPR system and record some 1.2 million and 1.7 million scans per week, respectively. The data is retained for 5 years and 2 years, respectively, by these agencies.
 
The ACLU made a request to LAPD and LASD under the California Public Records Act for all ALPR data collected during a one-week period in August 2012. Both agencies declined to provide the records, citing the exemption for “records of investigations” under section 6254, subdivision (f) of the CPRA. The ACLU brought suit and the law enforcement agencies expanded their exemption claims to include the so-called “catch-all” exemption of section 6255, subdivision (a), which allows an agency to withhold a record when “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
 
Ultimately, the trial court sided with the law enforcement agencies on both exemption claims. The ACLU appealed and the California Court of Appeal agreed with the trial court solely on the “investigative records” exemption and did not reach the “catch-all” exemption finding. The ACLU then sought review in the state Supreme Court. In a unanimous opinion authored by Associate Justice Ming Chin, the Court reached three separate conclusions. (ACLU v. Superior Court (County of Los Angeles, et al)
 
First, it disagreed with both the trial and appellate court that the “records of investigations” exemption applied to permit withholding the bulk of ALPR data unrelated to a specific investigation. The Court concluded that “ALPR scanning does not produce records of investigations, because the scans are not conducted as part of a targeted inquiry into any particular crime or crimes. The scans are conducted with an expectation that the vast majority of the data collected will prove irrelevant for law enforcement purposes.”
 
Second, the Court agreed with the trial court that the ALPR data was exempt under the “catch all” exemption because disclosing unaltered plate scan data threatens individual privacy by revealing where a person’s vehicle was at a certain time — potentially giving away where a person lives, works or frequently visits. This privacy interest, the Court held, “overbalanced” the ACLU’s claim that the data would be helpful in determining the extent to which ALPR technology jeopardizes the privacy of all persons associated with each scanned plate.
 
Finally, the Court addressed whether the ALPR data could, nonetheless, be anonymized or redacted to protect the privacy of those whose plates are scanned. The  Court found that the data could be anonymized or redacted to the point that the “overbalance” of the interest of individual privacy or confidentiality versus the public right to know would be overcome and the exemption from disclosure would not apply. The Court wrote, “[t]he critical point is that a court applying section 6255(a) cannot allow ‘[v]ague safety concerns’ to foreclose the public’s right of access.” Accordingly, the Court sent the case back to the trial court to conduct a new balancing analysis that includes a consideration of the feasibility of anonymization and redaction of the data.
 
The Supreme Court’s decision reaffirmed its strong support for disclosure under the CPRA, broadly affirming the public’s constitutional and statutory rights to know and narrowly construing the statutory exemptions from disclosure. It decidedly narrowed the application of its last “records of investigations” decision in 2001 in Haynie v. Superior Court, upon which the appellate court had relied.
 
Finally, the Court took a tough stance, requiring public agencies to take affirmative measures to ameliorate privacy and other concerns that disclosure might jeopardize by anonymizing or redacting data before making disclosure. Most immediately, the decision will likely affect the public debate, agency policies and CPRA litigation over other law enforcement mass data collection technologies like police body worn, dash and fixed video camera data, cellphone and GPS tracking data, gunshot audio tracking data, biometrics data, and “so-called “threat scoring” data.
 
If you have any questions about this decision or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Municipal Law practice group, or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.
 

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