AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; COUNTY OF LOS ANGELES et al., Real Parties in Interest.
S227106
IN THE SUPREME COURT OF CALIFORNIA
August 31, 2017
Ct.App. 2/3 B259392; Los Angeles County Super. Ct. No. BS143004
James C. Chalfant
We initially granted review to determine whether the requested ALPR data are exempt from disclosure as falling within the CPRA provision protecting police and state “[r]ecords of . . . investigations” under
After granting review, we requested additional briefing on a second issue: Whether the catchall exemption in
Petitioners conceded in the trial court that
The trial court determined that the data requested came within
BACKGROUND
The relevant facts are generally not in dispute. The ALPR data collection system at issue here utilizes high-speed computer-controlled cameras mounted on fixed structures or on patrol cars. The cameras automatically capture an image of the license plate of each vehicle that passes through their optical range. For each image, the ALPR system uses character recognition software and almost instantly checks the license plate number against a list of license plate numbers that have been associated with crimes, child abduction AMBER alerts, or outstanding warrants. This list of license plate numbers comprises the investigative “hot list.” When a hot list match occurs, the system alerts either officers in a patrol car or a central dispatch unit, depending on whether the ALPR unit that detects a match is mounted on a patrol car or a fixed structure. Most license plate numbers that ALPR units capture do not match the hot list and have no perceived connection to any crimes, AMBER alerts, or outstanding warrants.3
The ALPR technology records each scanned license plate number, together with the date, time, and location of the scan, and stores the data on confidential computer networks. LAPD estimates that it records data from 1.2 million cars per week. It retains license plate scan data for five years. LASD estimates that it records between 1.7 and 1.8 million license plates per week. It retains scan data for two years. When new investigations arise, real parties query their stored databases to obtain any available location history of relevant vehicles. Both the LAPD and LASD restrict database access to law enforcement.
On August 30 and September 4, 2012, petitioners sent substantially identical requests under the CPRA to each of the real parties, seeking
Petitioners’ CPRA request also sought disclosure of “any policies, guidelines, training manuals and/or instructions on the use of ALPR technology and the use and retention of ALPR data, including records on where the data is stored, how long it is stored, who has access to the data, and how long they access the data.” Real parties agreed to produce these records.
On May 6, 2013, petitioners filed a petition for writ of mandate in the Los Angeles County Superior Court to compel disclosure of the requested ALPR data. In opposing the petition, real parties cited the exemption for records of investigation under
Petitioners sought issuance of an extraordinary writ in the Court of Appeal. After conducting a de novo review (
DISCUSSION
1. The CPRA
The Legislature enacted the CPRA in 1968. (Stats. 1968, ch. 1473, § 39, p. 2964.) It was modeled after the 1967 federal Freedom of Information Act (
Proposition 59, a measure submitted to the voters in 2004, enshrined the CPRA‘s right of access in the state Constitution: “The people have the right of access to information concerning the conduct of the people‘s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” (
2. Application of section 6254(f)
Our interpretation of the phrase “[r]ecords of . . . investigations” is guided by familiar principles of statutory interpretation, as well the “constitutional imperative” to construe CPRA in a manner that furthers disclosure. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616–617 (City of San Jose); see Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 166.) The parties point us toward various dictionary definitions that they believe advance their positions.
Real parties observe, for example, that Black‘s Law Dictionary defines the term “investigate” to mean “[t]o inquire into (a matter) systematically” or “[t]o make an official inquiry.” (Black‘s Law Dict. (9th ed. 2009), p. 902.) This definition and the others suggested are not specific to the law enforcement or CPRA contexts, however, and afford us
We previously construed the records of investigations exemption in Haynie, supra, 26 Cal.4th 1061. Elgin Haynie claimed that he was injured by a Los Angeles County Deputy Sherriff during a traffic stop and sought certain public records regarding the incident. (Id. at p. 1065.) The sheriff‘s department refused to provide those records, instead disclosing a ” ‘summary of the event,’ ” which asserted that the Deputy ” ‘received a call from a neighbor who saw several males carrying guns enter an older model dark blue Ford van and travel down the road. The deputy spotted a vehicle matching that description five minutes later and he decided to conduct an investigation of the van.’ ” (Id. at pp. 1065–1066.) The department asserted that the “[r]ecords of . . . investigations” exemption mooted CPRA disclosure. (
We disagreed. (See Haynie, supra, 26 Cal.4th at pp. 1070–1071.) In doing so, we discussed the risk that Haynie‘s proposed interpretation might pose to law enforcement operations. “Complainants and other witnesses whose identities were disclosed might disappear or refuse to cooperate. Suspects, who would be alerted to the investigation, might flee or threaten witnesses. Citizens would be reluctant to report suspicious activity. Evidence might be destroyed.” (Id., at pp. 1070–1071.) We also stressed, however, that “by including ‘routine’ and ‘everyday’ within the ambit of ‘investigations’ in
Our case law recognizes that the CPRA should be interpreted in light of modern technological realities. (Cf. City of San Jose, supra, 2 Cal.5th at pp. 618–619 & fn. 4.) 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. Nothing in the text or structure of the statute suggests an effort to imbue the term with a meaning that capacious. Indeed,
Of course, the mere fact that the technology for such mass data collection was not in use when the Legislature enacted CPRA does not answer the question before us. As Fourth Amendment jurisprudence illustrates, a provision can apply to new and perhaps unanticipated technologies when the purpose behind the provision will be served. (Cf. Katz v. United States (1967) 389 U.S. 347, 353 [wiretaps of phone booths are searches for Fourth Amendment purposes because they impinge on the privacy interests the amendment was designed to protect].) As we recognized in Haynie, however, the animating concern behind the records of investigations exemption appears to be that a record of investigation reveals (and, thus, might deter) certain choices that should be kept confidential—an informant‘s choice to come forward, an investigator‘s choice to focus on particular individuals, the choice of certain investigatory methods. Such choices are far less likely to be revealed where, as here, data are collected en masse. True, the collection of ALPR data can shed light on certain choices, for example, that data are being collected disproportionately in certain neighborhoods. But this kind of revelation seems far less likely to compromise current or future law enforcement, and thus far less likely to prompt the concerns animating
Not only are the concerns underlying the exemption only weakly implicated by the disclosure of the ALPR data, but broadly exempting the data
Perhaps the most critical point, however, is one that the Court of Appeal did not mention: Our constitution requires that CPRA exemptions be narrowly construed, including the exemption for “[r]ecords of . . . investigations.” (
Accordingly, we hold that real parties’ process of 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. We recognize that it may not always be an easy task to identify the line between traditional “investigation” and the sort of “bulk” collection at issue here. But wherever the line may ultimately fall, it is at least clear that real parties’ ALPR process falls on the bulk collection side of it.
Nor does the act of querying the database for information on particular vehicles transform existing ALPR scan records into exempt “[r]ecords of . . . investigations” (
Therefore, the bulk collection of raw ALPR data here is not exempt from disclosure under
3. Application of section 6255(a)
The trial court determined that the balance of interests under
a. Unaltered plate scan data
As noted, petitioners seek disclosure of unaltered plate scan data, including, ” ‘at a minimum, the license plate number, date, time, and location information of each license plate recorded.’ ” Petitioners contend that, among other things, these data could reveal whether law enforcement officers are
The trial court carefully considered these interests. It also recognized, however, that disclosing unaltered plate scan data to the public threatens individuals’ privacy. ALPR data showing where a person was at a certain time could potentially reveal where that person lives, works, or frequently visits. ALPR data could also be used to identify people whom the police frequently encounter, such as witnesses or suspects under investigation (albeit to a lesser extent than in the type of situation at issue in Haynie). In short, as the trial court observed, “Members of the public would be justifiably concerned about LAPD or LASD releasing information regarding the specific locations of their vehicles on specific dates and times to anyone.” 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. (
b. Anonymized or redacted plate scan data
The trial court also considered whether the balance of interests at stake might be altered if ALPR data were anonymized: “for example plate ‘G5123AP’ could have a random number ‘1111111’ assigned to it.” The court assumed for argument‘s sake that this possibility was “both workable and inexpensive.” It rejected the possibility that anonymization of the ALPR data would alter the balance of interests, reasoning that anonymization “would address the individual privacy concerns, but it would not address the impact on law enforcement investigation.” 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.
The trial court‘s concerns about interference with law enforcement were multifaceted. The court initially concluded that even if ALPR data were
The trial court appears to have placed significant weight on the possibility that a criminal could use ALPR data to identify law enforcement patrol patterns. The court did so based on the declaration of LAPD Sergeant Daniel Gomez. In pertinent part, Sergeant Gomez claimed that an individual requesting ALPR data “could use the data to try and identify patterns of a particular vehicle.” (Italics added.) However, Sergeant Gomez also seemed to cast doubt on the likelihood that an individual could do so successfully, explaining that “[u]nlike law enforcement that uses additional departmental resources to validate captured [A]LPR information, a private person would be basing their assumptions solely on the data created by the [A]LPR system . . . .” Nevertheless, we will assume, as the trial court found, that a person could at least roughly infer patrol patterns from a week‘s worth of plate scan data.
The problem with this aspect of the trial court‘s analysis is that, even assuming patrol patterns can be inferred from ALPR data, there is little reason to believe that this possibility points meaningfully toward “a clear overbalance on the side of confidentiality” with respect to all the records sought. (Michaelis, supra, 38 Cal.4th at p. 1071.) For one thing, fixed ALPR scanners are just that—fixed—so concerns about patrol patterns are inapplicable to the data they collect. For another, the record does not appear to indicate that knowledge of where law enforcement officers were during a particular week is a reliable guide to where they will be at some precise moment in the future. The trial court did not find, for example, that real parties conduct law enforcement in the same way that they might operate a bus service—moving from point to point at particular times on particular days, never deviating to attend to other business or emergencies. We are not aware of substantial evidence that would have supported such a finding. Likewise, the court did not determine how often any such routes change, nor whether the addition of new mobile scanners would make it challenging to infer that the absence of a patrol route in the past meant the absence of a patrol route in the future.
The trial court‘s judgment appears to rest on an additional error. The court concluded that “an officer may make a hot list inquiry into the ALPR system and receive a hit at any time, thereby converting a non-specific scan to evidence in an individualized investigation. Segregation of records in a fluid computerized environment is virtually impossible.” This conclusion was also based on the declaration of Sergeant Gomez, who asserted that LAPD‘s system “does not have the capability as a native function to segregate data based on specific parameters.” (Italics added.) At the least, the trial court was
The critical point is that a court applying
Notwithstanding our disagreement with the trial court‘s reasoning, we do not have a sufficient factual record to determine whether
Petitioners have described two anonymization procedures. The first is the substitution method discussed above: replacing actual license plate numbers with fictional numbers. Presumably, each plate would be assigned its own unique (fictional) number, because assigning a random number to each scan, even if multiple scans concern the same plate, would be no more informative than simply removing the plate numbers altogether. In exploring this possibility, the court should evaluate the risk that a plate number could be inferred from a fictional number. For example, if plate number “1111111” were repeatedly scanned in front of an office building during the day time, and an apartment building at night, it might be possible to infer the true owner of plate “1111111” and to track their other movements. A second method would call for disclosure of two sets of ALPR data: one that discloses the number of times that each license plate has been scanned, and another that contains only the time, date, and location of the scans.
With respect to the concern that patrol patterns might be discerned from the anonymized data, petitioners suggest different ways to redact the exact date and time of the scans, so that disclosed records would show a “heat
The anonymization and redaction methods we discuss may be more feasible than the trial court appeared to believe. Petitioners contend that, even using real parties’ information system, it takes just “two computer clicks to export license plate data onto a spreadsheet or other type of document, which the parties can then modify.” Accordingly, the trial court‘s analysis should go beyond whether a method of removing exempt information is “a native function” of “[t]he system utilized by the LAPD.” While real parties may not have designed their system to facilitate CPRA disclosure as a “native function,” randomizing license plate numbers or deleting columns from a spreadsheet, for example, would seem to impose little burden. We leave the precise balance between effective anonymization and redaction and burden to the trial court on remand. We remind the trial court and the parties, however, that if the anonymized or redacted data are ultimately released, the courts may exercise no restraint on how the data may be used apart from the restrictions placed on its dissemination under
CONCLUSION
We affirm the Court of Appeal judgment insofar as it exempted raw ALPR data from CPRA disclosure. We reverse the Court of Appeal judgment insofar as it rendered anonymized or redacted ALPR data exempt from disclosure. We remand the action to the Court of Appeal with instructions to remand the matter to the trial court for further proceedings under
CHIN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion American Civil Liberties Union Foundation of Southern California v. Superior Court
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 236 Cal.App.4th 673
Rehearing Granted
Opinion No. S227106
Date Filed: August 31, 2017
Court: Superior
County: Los Angeles
Judge: James C. Chalfant
Counsel:
Peter Bibring and Catherine A. Wagner for Petitioner American Civil Liberties Union Foundation of Southern California.
Jennifer Lynch for Petitioner Electronic Frontier Foundation.
Katie Townsend for the Reporters Committee for Freedom of the Press, American Society of News Editors, Association of Alternative Newsmedia, California Newspaper Publishers Association, Californians Aware, The Center for Investigative Reporting, First Amendment Coalition, Los Angeles Times Communications LLC, The McClatchy Company, The National Press Club, National Press Photographers Association, Online News Association and Society of Professional Journalists as Amici Curiae on behalf of Petitioners.
First Amendment Project, James R. Wheaton and Cherokee D.M. Melton for Northern California Chapter of the Society of Professional Journalists as Amicus Curiae on behalf of Petitioners.
Marc Rotenberg, Alan Butler, Jeramie Scott and Aimee Thomson for Electronic Privacy Information Center as Amicus Curiae on behalf of Petitioners.
Jason D. Russell and Richard A. Schwartz for Senator Jerry Hill as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Jones & Mayer, Martin J. Mayer, James R. Touchstone and Deborah Pernice-Knefel for California State Sheriffs’ Association, California Police Chiefs’ Association and California Peace Officers’ Association as Amici Curiae on behalf of Respondent.
Michael N. Feuer, City Attorney (Los Angeles), Carlos de La Guerra, Managing Assistant City Attorney, Debra L. Gonzales and Amy Jo Field, Assistant City Attorneys, Lisa S. Berger and Heather L. Aubry, Deputy City Attorneys, for Real Parties in Interest City of Los Angeles and Los Angeles Police Department.
Page 2 - S227106 – counsel continued
Counsel:
Collins Collins Muir + Stewart, Eric Brown, Tomas A. Guterres and James C. Jardin for Real Parties in Interest County of Los Angeles and Los Angeles Sheriffs’ Department.
Colantuono, Highsmith & Whatley, Aleksan R. Giragosian, Michael G. Colantuono and Michael R. Cobden for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Real Parties in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Peter Bibring
ACLU Foundation of Southern California
1313 West Eighth Street
Los Angeles, CA 90017
(213) 977-5295
Heather L. Aubry
Deputy City Attorney
200 North Main Street, Room 800
Los Angeles, CA 90012
(213) 978-6956
James C. Jardin
Collins Collins Muir + Stewart
1100 El Centro Street
South Pasadena, CA 91030
(626) 243-1100