On August 31, 2017, the California Supreme Court, in ACLU of Southern Calif. v. Super Court of Los Angeles (County of LA, et. al. Real Parties), __ Cal. 5th ___ (2017), affirmed the Superior Court’s decision to exempt raw Automated License Plate Reader (“ALPR”) data from disclosure under the California Public Records Act (“CPRA”). The Supreme Court determined that, on the facts of the particular case, the public interests served by not disclosing the sought after records clearly outweighed the public interests served by disclosure of the ALPR data pursuant to California Government Code section 6255. The Supreme Court, however, declined to find that the ALPR data was exempt as a record of investigation pursuant to Government Code section 6254(f). The Supreme Court remanded the case for further consideration of whether the raw ALPR data could reasonably be anonymized or redacted such that the balance of interests would shift and disclosure of the data would be required under the CPRA.
Background
The American Civil Liberties Union (“ACLU”) of Southern California and the Electronic Frontier Foundation (“EFF”) submitted a series of CPRA requests pursuant to California Government Code section 6253 for law enforcement records from the Los Angeles Police Department (“LAPD”) and the Los Angeles Sheriff Department’s (“LASD”) ALPR database.
The data at issue was collected through high-speed computer-controlled cameras mounted on fixed structures or on patrol cars that capture an image of the license plate of each vehicle passing through the camera’s optical range. The ALPR system uses computer recognition software which simultaneously matches the imaged license plate number against a list of plate numbers associated with crimes, AMBER alerts or outstanding warrants. Although only about 0.2% is matched to suspected crimes, the scanned plate, date, time and location are stored on confidential, restricted LAPD and LASD networks that can be queried when new investigations arise. The scans record an estimated 1.2 to 1.8 million plates per week and are retained by LAPD for 5 years and LASD for 2 years.
The ACLU and EFF requested data from Real Parties, LAPD and LASD, for a one week period in August 2012. LAPD and LASD produced records related to the regulation and use of the ALPR technology, however the ALPR records from the database were withheld, based upon the exemptions afforded law enforcement investigation records under California Government Code sections 6254(f) and (k), and California Government Code section 6255, which became the subject of writ proceedings brought by the ACLU and EFF in Los Angeles Superior Court.
The trial court held the raw data was exempt under Section 6254(f), as records of investigation, and further found that the Section 6255 “catchall” exemption applied because the public interest in nondisclosure clearly outweighed the public interest in disclosure of such data.
The Court of Appeal affirmed the trial court’s judgment that the data was exempt as “records of investigation” under Section 6254(f) and did not review whether the “catchall” exemption would apply under Section 6255.
The ACLU and EFF petitioned for review by the Supreme Court, which was granted.
Discussion
The Supreme Court disagreed with both the trial court and the appellate court that the data at issue was subject to Section 6254(f)’s exemption as records of investigation. The Court cited the constitutional “imperative” to “broadly construe” the CPRA in a manner that favors the people’s right of access to the conduct of government operations and to “narrowly construe” any exemptions under the CPRA.
The Court, however, agreed with the judgment of the trial court that the public interest in nondisclosure “clearly outweighed” the public interest in disclosure of the APLR data under the California Government Code section 6255 “catchall” exemption. The Court, however, remanded the matter for the trial court to consider whether “the raw data may be reasonably anonymized or redacted such that the balance of interests would shift and disclosure of the data would be required under the CPRA.”
The CPRA
In making its decision, the Court noted the CPRA was enacted in 1968 to ensure public access to information concerning the conduct of the people’s business “as a fundamental and necessary right of every person in the state” to inspect any public record, subject to the express exceptions provided therein.
Section 6254(f) “Record of Investigation Exemption”
The Court reviewed the exception to the CPRA asserted by Real Parties, LASD and LAPD as exempt records of investigation under Section 6254(f), which protects “records of … investigations conducted by, or records of intelligence information or security procedures of… any state or local police agency …” from public disclosure. The Court discussed the definition of “investigation” in the law enforcement context, focusing on its previous interpretation in Haynie v. Superior Court (2001) 26 Cal. 4th 1061, and noted that there was a significant factual distinction from the investigatory stop at issue in Haynie, where police stopped an individual driver based on a tip, and this case, which concerned the collection of enormous amounts of bulk data. The Court stated that the Haynie case “at least implied an inquiry should be somewhat targeted” at suspected violations of law and “the mere fact of an inquiry is not enough.”
The Court noted that, in Haynie, the “animating concern” behind the records of investigation exemption appeared to be that such records reveal (and might deter) certain law enforcement choices that should be kept confidential, such as investigatory methods, which are “far less likely to be revealed” where data are collected “en masse,” such as here, through the collection of ALPR data.
Most significantly, the Court held that the ALPR records could not be considered exempt as investigatory records because they were not conducted as part of a targeted inquiry into a crime, or crimes, and the Court opined: “the fact that a database has been searched” or a plate has been matched “did not increase the concerns identified in Haynie with respect to the database.” As such, the Court found that the investigatory records exemption did not apply to the ALPR data.
Section 6255(a) “catchall provision”
The Court found that Section 6255(a)’s catchall exemption applied on the facts of the case before it. The Court previously had requested additional briefing from the parties on whether the catchall exception applied to any or all of the ALPR data collected by LAPD and LASD.
The Court noted that the CPRA allowed an agency to withhold a public record if the agency demonstrates “that on the facts of the particular case the public interests served by not disclosing the record clearly outweigh the public interest served by disclosure of the record.”
The Court explained that this provision of the CPRA “contemplates a case by case balancing process…” which burdens the proponent of nondisclosure to show “a clear overbalance on the side of confidentiality.” (Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal. 4th 1065, 1071.)
The Court reviewed the public interest factors de novo and accepted the trial court’s factual findings, “as long as they are supported by substantial evidence.” Michaelis, at p. 1072.
The Court agreed that the balance of interests clearly weighed against disclosure of the raw ALPR data, which included unaltered license plate scan data that consisted of the plate number, date, time and location information of each license plate recorded. The Court recognized that, although the public has an interest in the extent to which the ALPR technology threatened the privacy of the plate owners, the act of revealing the data would itself jeopardize the privacy of everyone associated with a scanned license plate. Accordingly, the Court found that the public interest in nondisclosure clearly outweighed any public interest served by disclosure of the data.
The Court further opined that Section 6255(a) should not allow “vague concerns,” such as disclosure of mobile ALPR patrol patterns “to foreclose the public’s right of access,” without record of evidence to support it. The Court determined that the trial court erred in holding that anonymized data would not alter the balance of interests and placed too much emphasis on the possibility of frustrating law enforcement efforts. The Court, therefore, remanded the case to the trial court for further factual development on the issue of whether the raw data could effectively be anonymized such that disclosure ultimately would be appropriate.
HOW THIS AFFECTS YOUR AGENCY
The Court focused its decision on what it has expressed as a California constitutional imperative that militates in favor of disclosure and requires that courts must narrowly construe exemptions under the CPRA. This case follows the Court’s recent holding on March 2, 2017 (see Jones & Mayer client alert Vol. 32, No. 5), in which the Court noted that the CPRA and the Constitution strike a careful balance between public access and personal privacy in City of San Jose v. Superior Court (2017) 2 Cal.5th 608. In San Jose, the Court held that public officials’ private emails were public records potentially subject to disclosure, explaining that public officials’ use of their private email account did not transform their correspondence relative to what would otherwise be considered public business into exempt personal records.
In responding to CPRA requests, agencies should keep in mind the Court’s emphasis in this and its other recent holdings emphasizing the constitutional mandate to narrowly interpret any potential exemptions and generally in favor of disclosure.
Agencies should also be mindful that any data gathered by law enforcement “en masse” through any process, is potentially subject to disclosure under the CPRA pursuant to this decision and will not be protected from disclosure as an exempt investigatory record unless the data is gathered in connection with a targeted inquiry into a particular violation, crime, or crimes.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at jrt@jones-mayer.com.
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