Friday, September 1, 2017
Access to License-Plate Data May Be Possible, S.C. Rules
From Staff And Wire Service Reports
In this Oct. 2009 photo, a “License Plate Reader” or LPR, is seen on the trunk of a Los Angeles County Sheriff’s Department car.
It would violate rights of privacy to publicly release raw data collected by automated license plate readers that police use to determine whether vehicles are linked to crime, but there may be ways to make the information anonymous that would require it to be disclosed, the California Supreme Court said yesterday.
The unanimous opinion, by Justice Ming Chin, affirms a May 5, 2015 opinion of this district’s Court of Appeal to the extent it says that raw automated license plate reader (“ALPR”) data is not subject to disclosure under the California Public Records Act. However, it reversed the Div. Three opinion “insofar as it rendered anonymized or redacted ALPR data exempt from disclosure.”
The court remanded the case to Div. Three with instructions that it, in turn, remand the matter to the Los Angeles Superior Court, to consider methods to make the data anonymous and determine whether any of those efforts would require its release. The trial court decision denying access to the data was made by Judge James Chalfant.
Millions of Records
Yesterday’s ruling came in a lawsuit by the American Civil Liberties Union and Electronic Frontier Foundation that sought a week’s worth of license plate data—millions of records—from the Los Angeles County Sheriff’s Department and Los Angeles Police Department to “understand and educate the public on the risks to privacy posed” by license plate readers in the area.
Law enforcement agencies nationwide are using license plate readers attached to patrol cars and objects such as traffic signals. The devices indiscriminately capture images of license plates that come into view. The information is passed through databases to instantly check whether the car or driver has been linked to crime.
Officials say the scans are useful in tracking stolen vehicles, missing children and people wanted by police. For instance, authorities chasing a suspect in a fatal shooting at Delta State University in Mississippi in 2015 used an automatic license plate reader to track the man as he traveled across state lines.
Privacy advocates say the systems overwhelmingly capture innocent drivers, recording information about their locations that could be used to track their habits and whereabouts.
The ACLU and Electronic Frontier Foundation said the agencies hold the data for years, allowing officers to use it in future investigations.
Disagrees With C.A.
Chin’s opinion rejects the conclusion of the Court of Appeal, set forth in an opinion by then-Justice Patti Kitching (now retired), that the data was exempt from disclosure under exemption Government Code §6254(f). That provision excludes from disclosure “[r]ecords of investigations conducted by...any state or local police agency.”
The scans were “not conducted as part of a targeted inquiry into any particular crime or crimes,” Chin wrote, adding:
“It is hard to imagine that the Legislature intended for the records-of-investigations exemption to reach the large volume of data that plate scanners and other similar technologies now enable agencies to collect indiscriminately.”
Peter Bibring, a senior staff attorney at the ACLU of Southern California, said that part of the ruling was key.
“The court recognized that technology does make a difference and the exemption for police investigations wasn’t intended to encompass the kind of indiscriminate collection of information that license plate readers make possible today,” he said.
Bibring said the ACLU wants to see whether law enforcement agencies in Los Angeles are focusing license plate readers on lower-income communities of color or communities of a particular religious persuasion.
Jennifer Lehman, assistant county counsel for Los Angeles County, said in a statement that the county was “concerned that even making the information anonymous could pose unique and unintended problems.”
She said it would raise those concerns in detail when the case is heard again by the Superior Court.
Kitching wrote that in light of the conclusion that the records are exempt under §6254(f), “we do not address” whether the defendants “also met their burden under section 6255’s catchall exemption.” The Supreme Court, however, did want to address that question and, after granting review, ordered argument on it.
The section says that a public agency may “justify withholding any record by demonstrating that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
Chin said the raw data does fall under that exemption. He wrote:
“Although we acknowledge that revealing raw ALPR data would be helpful in determining the extent to which ALPR technology threatens privacy, the act of revealing the data would itself jeopardize the privacy of everyone associated with a scanned plate. Given that real parties each conduct more than one million scans per week, this threat to privacy is significant. We therefore conclude that the public interest in preventing such disclosure ‘clearly outweighs the public interest served by disclosure’ of these records.”
He noted that Chalfant did consider anonymizing date, saying that “for example plate ‘G5123AP’ could have a random number ‘1111111’ assigned to it,” but assumed this would be “both workable and inexpensive.”
“We conclude that the trial court placed too much weight on the mere possibility that law enforcement efforts would be frustrated. Because this issue appears to require further factual development, however, we decline to resolve it in the first instance.”
“On remand, the trial court should conduct a new balancing analysis—one that includes consideration of the feasibility of, and interests implicated by, methods of anonymization petitioners have suggested. The trial court is free to explore other methods of anonymization and redaction as well.”
The case is American Civil Liberties Union Foundation of Southern California v. Superior Court, 17 S.O.S. 4457.
Copyright 2017, Metropolitan News Company