Thursday, May 7, 2015
License Plate Reader Data Exempt From Disclosure Statute—C.A.
From Staff and Wire Service Reports
Police don’t have to disclose license plate records that advocacy groups sought to gauge how high-tech surveillance was being used, the Court of Appeal for this district ruled yesterday.
In an opinion by Patti Kitching, Div. Three said the data falls under the California Public Records Act exemption for “[r]ecords of . . . investigations conducted by . . . any state or local police agency, or any investigatory or security files compiled by any other state or local police agency.”
The American Civil Liberties Union and Electronic Frontier Foundation had requested the records from the Los Angeles Police Department and the county’s sheriff’s department.
Law enforcement departments across the country are increasingly using automated license plate readers mounted on patrol cars and fixed locations to check plate numbers against a “hot list” of vehicles associated with crimes, such as stolen cars, child abductions or arrest warrants.
Police can store the data for years to use in future investigations and Los Angeles police said they had used the information to identify a vehicle linked to a homicide and another at the location of an armed robbery. The ACLU and EFF contended the records were not for specific investigations, but data collected indiscriminately that could be used to track anyone, such as political activists.
They sought a week of records from August 2012 to assess the scope of government surveillance. They filed suit after the agencies asserted that the data was exempt under both the specific exemption for investigative records—found in Government Code §6254(f)—and the “catch-all” exemption of §6255, which applies when the interests favoring secrecy “clearly outweigh[ ]” those favoring disclosure.
Los Angeles Superior Court Judge James Chalfant ruled that the investigative-records exemption applied and denied the ACLU and EFF’s petition for writ of mandate.
Kitching acknowledged that records generated by the devices, commonly referred to as ALPRs, raise issues that were not contemplated when the CPRA was enacted.
“To be sure, the automated nature of the ... system, with its capacity to capture and record millions of plate scans throughout Los Angeles city and county, sets it apart from the traditional investigatory techniques that courts have considered in earlier cases addressing the scope of the investigative records exemption,” the justice wrote. “But that distinction is irrelevant to the question of whether the ALPR system’s core function is to ... investigate suspected crimes.”
Kitching concluded that the exemption extends beyond routine investigations and “does not lapse when the investigation that prompted the records’ creation ends.”
An investigation, she added, is not limited to probing those suspected of criminal activity. The fact that police have “deployed these systems primarily to detect and locate vehicles that have been connected to a suspected crime” makes the records investigative within the meaning of the exemption, she said, and “[t]he fact that ALPR technology generates substantially more records than an officer could generate in manually performing the same task does not mean the ALPR plate scans are not records of investigations.”
Attorney Jennifer Lynch of the EFF said the group was disappointed and weighing its appeal options.
Other appellate attorneys on the case, American Civil Liberties Union Foundation of Southern California v. Superior Court (County of Los Angeles), 15 S.O.S. 2241, included Peter Bibring for the ACLU, Assistant City Attorney Debra L. Gonzales and Deputy City Attorney Heather L. Aubry for the City of Los Angeles and LAPD, and Eric Brown, Tomas A. Guterres and James C. Jardin of Collins Collins Muir + Stewart, for Los Angeles County and the Los Angeles Sheriff’s Department.
Use of the readers has been controversial in other jurisdictions as well.
The ACLU of Virginia Tuesday sued Fairfax County police, alleging that keeping a database of information collected through the devices amounts to an illegal invasion of privacy. In 2013, Virginia’s attorney general advised state police that data collected by plate readers is personal information under state law and can’t be kept unless it’s part of a specific criminal investigation, but local police still collect and share the data.
The state’s governor, Democrat Terry McAuliffe, last week vetoed a bill that would have limited retention of the data to seven days, except where tied to a specific investigation. He had earlier proposed a 60-day limit, but lawmakers rejected it.
The Virginia Sheriff’s Association supported the veto, saying the issue needed more study.
The Illinois House of Representatives last month voted 75-24 for a 30-month limit on data retention. The bill, which was sent to the state Senate, is opposed by law enforcement groups but has the backing of a range of organizations, including the conservative Illinois Policy Institute.
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