ACLU v. Super. Ct.

Filed 5/6/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
AMERICAN CIVIL LIBERTIES UNION B259392
FOUNDATION OF SOUTHERN
CALIFORNIA et al., (Los Angeles County
Super. Ct. No. BS143004)
Petitioners,
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
COUNTY OF LOS ANGELES et al.,
Real Parties in Interest.
PETITION for Writ of Mandate from an order of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Petition denied.
Peter Bibring for Petitioner American Civil Liberties Union Foundation of
Southern California.
Jennifer Lynch for Petitioner Electronic Frontier Foundation.
No Appearance for Respondent.
Michael N. Feuer, City Attorney, Carlos De La Guerra, Managing Assistant City
Attorney, Debra L. Gonzales, Assistant City Attorney, and Heather L. Aubry, Deputy
City Attorney, for Real Parties in Interest City of Los Angeles and the Los Angeles
Police Department.
Collins Collins Muir + Stewart, Eric Brown, Tomas A. Guterres and James C.
Jardin for Real Parties in Interest County of Los Angeles and the Los Angeles Sheriff’s
Department.
_____________________
INTRODUCTION
In this writ proceeding we must determine whether the California Public Records
Act (CPRA) exemption for law enforcement records of investigations (Gov. Code,
§ 6254, subd. (f))1 applies to records generated by a system of high-speed cameras that
automatically scan and catalogue license plate images to aid law enforcement in locating
vehicles associated with a suspected crime. We conclude the exemption applies.
For more than a decade, the Los Angeles Police Department (LAPD) and Los
Angeles Sheriff’s Department (LASD), agencies of Real Parties in Interest the City and
County of Los Angeles (collectively, Real Parties), have used Automatic License Plate
Reader (ALPR) technology to automate a process that officers ordinarily perform
manually—checking license plates to determine whether a vehicle is stolen or otherwise
wanted in connection with a crime. Real Parties’ ALPR systems consist of specialized
cameras mounted to patrol cars or stationary structures that scan license plates in their
immediate vicinity and record the license plate number together with the time and
location of the scan. At virtually the same time, the ALPR system checks every license
plate number it scans against a list of known license plates associated with suspected
crimes—a so-called “hot list.” If the system registers a hit, patrol officers are
immediately notified that a hot list vehicle is in their vicinity. Regardless of whether
there is a hit, the system records the plate scan data, which Real Parties retain for up to
five years for use in future investigations.
1
Subsequent statutory references are to the Government Code, unless otherwise
designated.
2
Petitioners American Civil Liberties Union Foundation of Southern California and
Electronic Frontier Foundation sent Real Parties a CPRA request for their policies and
guidelines concerning use of ALPR technology, as well as all ALPR plate scan data Real
Parties collected during a single week in August 2012. Real Parties agreed to produce the
policies and guidelines, but refused to disclose the week’s worth of ALPR data, citing the
law enforcement investigative records exemption and privacy concerns. Petitioners filed
a petition for writ of mandate seeking to compel production of the ALPR data under the
CPRA. The trial court denied the petition, concluding the records are exempt as records
of law enforcement investigations under section 6254, subdivision (f). Guided by
Supreme Court precedent extending the exemption to “records of investigations
conducted for the purpose of uncovering information surrounding the commission of the
violation [of law] and its agency” (Haynie v. Superior Court (2001) 26 Cal.4th 1061,
1071 (Haynie)), we likewise conclude the exemption applies to records generated by the
ALPR system in the course of scanning license plates to locate automobiles associated
with a suspected crime under investigation. Accordingly, we deny the writ petition.
FACTS AND PROCEDURAL BACKGROUND
The relevant facts are not in dispute. Real Parties each maintain an ALPR system
that consists of several high-speed cameras mounted on fixed structures and patrol cars
that automatically capture an image of every passing vehicle’s license plate in their
immediate vicinity. The system uses “character recognition software” to read the license
plate’s number from the image and “almost instantly” checks the number against a list of
“known license plates” associated with suspected crimes—or a “hot list”—to determine
whether a vehicle may be stolen or otherwise associated with a crime, AMBER alert or
outstanding warrant. If a mobile ALPR unit detects a license plate on the hot list, officers
are notified of the “hit” by an audible alert and notation on their patrol car’s computer
screen. ALPR fixed positions similarly notify a central dispatch unit when a hit is
detected.
3
In addition to extracting the license plate number, the ALPR system records the
date and location where it captured the plate’s image. The system transmits this “plate
scan data” to an ALPR server within Real Parties’ confidential computer networks.
LAPD estimates it records plate scan data for approximately 1.2 million cars per week;
LASD estimates that figure to be between 1.7 and 1.8 million plate scans for its ALPR
system. LAPD retains plate scan data for five years under its current policy. LASD
retains the data for two years, although it would prefer to retain the data indefinitely.
In addition to receiving immediate notification from the ALPR system when it
locates a license plate on the hot list, Real Parties can also query stored plate scan data to
assist in subsequent law enforcement investigations. For instance, LAPD investigators
have used stored ALPR data to identify a vehicle that was present at an armed robbery
and, in another instance, a vehicle directly linked to a homicide. Real Parties maintain
policies restricting access to plate scan data for law enforcement purposes only.
On August 30 and September 4, 2012, Petitioners sent substantially identical
CPRA requests to LAPD and LASD seeking records related to those agencies’ use of
ALPR technology, including “all ALPR data collected or generated” during a one-week
period in August 2012, consisting of, “at a minimum, the license plate number, date,
time, and location information for each license plate recorded.” The CPRA request also
sought “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 they access the data.”
Real Parties each agreed to produce records responsive to Petitioners’ requests for
policies, guidelines and training manuals concerning the use, access, and retention of
ALPR plate scan data. Real Parties refused to produce the requested week’s worth of
plate scan data, however, citing, among other things, the exemption for records of law
enforcement investigations.
On May 6, 2013, Petitioners filed a verified petition for writ of mandate to compel
production of the ALPR plate scan data under the CPRA.
4
Real Parties each opposed the petition, again citing the exemption for records of
law enforcement investigations under section 6254, subdivision (f), as well as the
“catchall” exemption under section 6255.2 With their opposition briefs, Real Parties filed
supporting declarations by their subject matter experts detailing the technical aspects of
their respective ALPR systems and the ways each law enforcement agency uses the
technology in practice.
On August 21, 2014, the court held a trial on Petitioners’ writ petition. On August
27, 2014, the court entered an order affirming Real Parties’ decision to withhold the
ALPR plate scan data, concluding the data was subject to the records of investigations
exemption under section 6254, subdivision (f) and the catchall exemption under section
6255.
DISCUSSION
1. Standard of Review
A trial court order under the CPRA, either directing disclosure by a public official
or affirming the public official’s decision to refuse disclosure, is immediately reviewable
by petition to the appellate court for issuance of an extraordinary writ. (§ 6259, subd.
(c).) “The standard for review of the order is ‘an independent review of the trial court’s
ruling; factual findings made by the trial court will be upheld if based on substantial
evidence.’ ” (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1016.)
The interpretation of the CPRA, and application of the statute to undisputed facts is a
question of law subject to de novo review. (Lorig v. Medical Board (2000)
78 Cal.App.4th 462, 467.)
2
Under section 6255, a public agency may justify withholding records otherwise
subject to CPRA disclosure requirements 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.”
5
2. The Records of Investigations Exemption Under Government Code Section
6254, Subdivision (f)
The CPRA declares that “access to information concerning the conduct of the
people’s business is a fundamental and necessary right of every person in this state.”
(§ 6250.) The statute’s explicit purpose is to increase freedom of information by giving
the public access to information in the public agencies’ possession. (CBS, Inc. v. Block
(1986) 42 Cal.3d 646, 651.) “Maximum disclosure of the conduct of governmental
operations was to be promoted by the [CPRA].” (Id. at pp. 651-652.) To that end, the
CPRA provides that “every person has a right to inspect any public record, except as
hereafter provided.” (§ 6253, subd. (a).) Hence, “all public records are subject to
disclosure unless the Legislature has expressly provided to the contrary.” (Williams v.
Superior Court (1993) 5 Cal.4th 337, 346 (Williams); Haynie, supra, 26 Cal.4th at
p. 1068.) Consistent with the CPRA’s purpose, “[s]tatutory exemptions from compelled
disclosure are narrowly construed.” (California State University, Fresno Assn., Inc. v.
Superior Court (2001) 90 Cal.App.4th 810, 831.)
Real Parties contend, and the trial court found, that the plate scan records
generated by the ALPR system constitute records of investigations which are exempt
from disclosure under section 6254, subdivision (f). In pertinent part, subdivision (f)
authorizes a public agency to withhold “[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 . . . .” While broadly shielding the records themselves
from disclosure, the CPRA requires law enforcement agencies to disclose certain
information derived from the records, as provided in subdivisions (f)(1) and (f)(2).3
3
Notwithstanding the general directive to narrowly construe such exemptions, our
Supreme Court has explained that section 6254, subdivision (f) “articulates a broad
exemption from disclosure for law enforcement investigatory records,” which is limited
only by requirements in subdivisions (f)(1) and (f)(2) to “provide certain information
derived from the records about the incidents under investigation.” (Williams, supra,
5 Cal.4th at p. 349, italics added.) That is, “[i]nstead of adopting criteria that would
require the exemption’s applicability to be determined on a case-by-case basis,” the
6
(Williams, supra, 5 Cal.4th at p. 353; Haynie, supra, 26 Cal.4th at p. 1068.) The parties
agree that the derivative categories of information to be disclosed under these
subsections—information about arrests and arrestees (§ 6254, subd. (f)(1)) and
complaints and requests for assistance (§ 6254, subd. (f)(2))—are not at issue in this case.
What is at issue is the meaning of the term “investigations” in section 6254,
subdivision (f), and whether the functions performed by the ALPR system can properly
be characterized as investigations under the statute. Though the CPRA does not define
the term, and no case has considered whether records generated by an automated process,
like that performed by the ALPR system, qualify for exemption under subdivision (f), our
Supreme Court has articulated some general principles to guide our analysis.
First, the exemption for records of investigation encompasses routine
investigations undertaken to determine if a violation of law has, or may have, occurred.
In rejecting an interpretation that would exclude such records from the exemption’s
purview, the Supreme Court in Haynie explained, “The Court of Appeal, in ordering
disclosure, reasoned that the citizen report . . . did not ‘necessarily’ describe a crime and
that the [law enforcement action] was a ‘routine police inquiry’ based on mere suspicion
of criminal conduct. These factors are of no significance under the statute. In exempting
‘[r]ecords of complaints to, or investigations conducted by’ law enforcement agencies,
section 6254(f) does not distinguish between investigations to determine if a crime has
been or is about to be committed and those that are undertaken once criminal conduct is
apparent.”4 (Haynie, supra, 26 Cal.4th at p. 1070, fn. 6, italics added.)
Legislature “limited the CPRA’s exemption for law enforcement investigatory files . . .
[by] adopt[ing] a series of amendments that required the disclosure of information
derived from the records while, in most cases, preserving the exemption for the records
themselves.” (Id. at p. 353.)
4
This distinguishes the records of investigations from “investigatory . . . files
compiled by any . . . local agency for correctional, law enforcement, or licensing
purposes. . . .” (§ 6254, subd. (f), italics added.) As the Supreme Court explained in
Williams, it is “well established that ‘information in public files [becomes] exempt as
“investigatory” material only when the prospect of enforcement proceedings [becomes]
concrete and definite.’ ” (Williams, supra, 5 Cal.4th at p. 356.) “Such a qualification is
7
Second, while routine investigations are within the exemption’s ambit, not
everything that law enforcement does is shielded from disclosure. As the court explained
in Haynie, “[o]ften, officers make inquiries of citizens for purposes related to crime
prevention and public safety that are unrelated to either civil or criminal investigations.
The records of investigation exempted under section 6254(f) encompass only those
investigations undertaken for the purpose of determining whether a violation of law may
occur or has occurred. If a violation or potential violation is detected, the exemption also
extends to records of investigations conducted for the purpose of uncovering information
surrounding the commission of the violation and its agency.” (Haynie, supra, 26 Cal.4th
at p. 1071, italics added.)
Third, the exemption shielding records of investigations from disclosure does not
lapse when the investigation that prompted the records’ creation ends. As the high court
stated in Williams with respect to the exemption for investigatory files, “It is noteworthy
that nothing [in the statute’s language] purports to place a time limit on the exemption for
investigatory files. Indeed, a file ‘compiled by . . . [a] police agency’ or a file ‘compiled
by any other state or local agency for . . . law enforcement . . . purposes’ continues to
meet that definition after the investigation has concluded. If the Legislature had wished
to limit the exemption to files that were ‘related to pending investigations,’ words to
achieve that result were available. It is not the province of courts ‘to insert what has been
omitted.’ ” (Williams, supra, 5 Cal.4th at p. 357.) The same is true for records of
investigations—they continue to be “[r]ecords of . . . investigations conducted by . . . any
necessary to prevent an agency from attempting to ‘shield a record from public
disclosure, regardless of its nature, simply by placing it in a file labelled
“investigatory.” ’ ” (Haynie, supra, 26 Cal.4th at p. 1069, quoting Williams, at p. 355.)
However, the “ ‘concrete and definite’ qualification to the exemption in section 6254(f)
‘relates only to information which is not itself exempt from compelled disclosure, but
claims exemption only as part of an investigatory file. Information independently
exempt, such as “intelligence information” [or records of investigations at issue in
Haynie], is not subject to the requirement that it relate to a concrete and definite prospect
of enforcement proceedings.’ ” (Haynie, at p. 1069, quoting American Civil Liberties
Union Foundation v. Deukmejian (1982) 32 Cal.3d 440, 449, fn. 10.)
8
state or local police agency” even after the investigation that prompted their creation
ends. (§ 6254, subd. (f).)
Finally, as alluded to in the foregoing quotation from Williams, the Supreme Court
has cautioned against courts placing nonstatutory limitations on the scope of section
6254, subdivision (f). As the court elaborated in Williams, referring to the required
disclosures under section 6254, subdivisions (f)(1) and (f)(2), “These provisions for
mandatory disclosure from law enforcement investigatory files represent the
Legislature’s judgment, set out in exceptionally careful detail, about what items of
information should be disclosed and to whom. Unless that judgment runs afoul of the
Constitution it is not our province to declare that the statutorily required disclosures are
inadequate or that the statutory exemption from disclosure is too broad. . . . Requests for
broader disclosure must be directed to the Legislature.” (Williams, supra, 5 Cal.4th at
p. 361.)
With these principles in mind, we turn to whether the plate scan data generated by
the ALPR system constitute records of investigation under section 6254, subdivision (f).
3. Plate Scan Data Generated by the ALPR System Are Records of
Investigations Exempt from Disclosure Under Government Code Section
6254, Subdivision (f)
Drawing on the guidance from Haynie and Williams, Real Parties contend the
plate scans performed by the ALPR system are “investigations” within the meaning of
section 6254, subdivision (f) because they are “conducted for the purpose of uncovering
information surrounding the commission of the violation [of law] and its agency.”
(Haynie, supra, 26 Cal.4th at p. 1071.) Citing the declaration by LAPD’s subject matter
expert, Real Parties stress that the ALPR system uses “character recognition software” to
read license plate numbers and “almost instantly” checks those numbers against a list of
“known license plate[s]” associated with suspected crimes to “determine whether a
vehicle may be stolen or otherwise associated with a crime.” The LASD’s declarant
described the ALPR system’s function in similar terms, explaining that by utilizing the
system to “automatically” check license plate scans against a “hot list” of plates
9
associated with suspected crimes, “[t]he [LASD] uses ALPR technology to investigate
specific crimes that involve motor vehicles, including but not limited to stolen motor
vehicles, Amber alerts that identify a specific motor vehicle, warrants that relate to the
owner of a specific motor vehicle, and license plates of interest that relate to a specific
investigation being conducted by [LASD] investigatory personnel.” Thus, Real Parties
contend the license plate scan and almost instantaneous check against the hot list
constitutes an investigation under section 6254, subdivision (f), because the ALPR
system is attempting to detect and uncover criminal activity. (Haynie, at p. 1071.)
Expanding on the foregoing analysis, Real Parties argue the records generated by
the ALPR system in performing the scans and hot list checks are records of investigations
and, therefore, exempt from disclosure under section 6254, subdivision (f). As counsel
for the LASD put it at the trial below, plate scan data generated by the ALPR system is
necessarily a record of an investigation because “[t]hese records would not exist were the
County or the City not investigating specific crimes in an attempt to locate persons who
are suspected of having committed crimes.” We agree. In the Haynie court’s words,
these records exist only because Real Parties are trying to “uncover[ ] information
surrounding the commission of [a] violation [of law] and its agency.” (Haynie, supra,
26 Cal.4th at p. 1071.) As evidenced by the LAPD and LASD declarations, Real Parties
have deployed the ALPR system to assist in law enforcement investigations involving an
identified automobile’s license plate number. It follows that the records the ALPR
system generates in the course of attempting to detect and locate these automobiles are
records of those investigations. The exemption under section 6254, subdivision (f)
broadly shields these records from disclosure, subject to requirements pertaining to
derivative information (see § 6254, subds. (f)(1) & (f)(2)) not at issue here. (See
Williams, supra, 5 Cal.4th at pp. 353, 361; Haynie, at p. 1068.)
Petitioners argue the ALPR plate scans are not investigations within the
exemption’s purview. Unlike the cases that have applied the exemption, which all
“involve[d] requests for documents related to targeted investigations of specific criminal
acts” (italics added), Petitioners argue the plate scans conducted by ALPR systems “are
10
not precipitated by any specific criminal investigation.” Rather, Petitioners assert, ALPR
systems “photograph every license plate that comes into view . . . regardless of whether
the car or its driver is linked to criminal activity.” They contend, ALPR systems “do not
conduct investigations; they collect data.” We disagree.
Contrary to Petitioners’ premise, the plate scans performed by the ALPR system
are precipitated by specific criminal investigations—namely, the investigations that
produced the “hot list” of license plate numbers associated with suspected crimes. As
Real Parties’ experts both testified, the ALPR system’s principal purpose is to check
license plates against the hot list to determine whether a vehicle is connected to a crime
under investigation. In this way, the ALPR system replicates, albeit on a vastly larger
scale, a type of investigation that officers routinely perform manually by visually reading
a license plate and entering the plate number into a computer to determine whether a
subject vehicle might be stolen or otherwise associated with a crime.5 The fact that the
ALPR system automates this process does not make it any less an investigation to locate
automobiles associated with specific suspected crimes.
Nor does the fact that the ALPR system scans every license plate within view,
“regardless of whether the car or its driver is linked to criminal activity,” mean the
system is not performing an investigation. As explained in Haynie, “[i]n exempting
‘[r]ecords of . . . investigations conducted by’ law enforcement agencies, section 6254(f)
does not distinguish between investigations to determine if a crime has been or is about
to be committed and those that are undertaken once criminal conduct is apparent.”
5
Petitioners suggest the “collection of plate data”—i.e., the photographing and
scanning of a license plate—can be separated from “its later investigative uses”—i.e., the
near instantaneous check against the hot list. This argument ignores that the plate scan is
an integral part of the ALPR system’s process for locating automobiles on the hot list.
Just as an officer cannot investigate whether an automobile has been associated with a
suspected crime without visually observing and reading its license plate number, so too
the ALPR system cannot determine whether a license plate number is on the hot list
without scanning the plate. The collection of plate data and hot list check are part and
parcel of the same investigative process—without the plate scan there can be no
investigation.
11
(Haynie, supra, 26 Cal.4th at p. 1070, fn. 6, italics added.) Contrary to Petitioners’
implicit contention, our Supreme Court has repeatedly rejected the notion that a “concrete
and definite” prospect of enforcement must be shown to exempt records of investigations
from disclosure. (Id. at pp. 1069-1071; see also Williams, supra, 5 Cal.4th at pp. 354-
356.) The ALPR system necessarily scans every car in view, just as human officers
would in attempting to identify a stolen vehicle. The fact that non-hot list vehicles are
necessarily checked does not mean there was no investigation. (See fn. 6, post.)
Lastly, Petitioners emphasize the volume and retention of plate scan data to
highlight the differences between ALPR scans and more traditional investigative
techniques. In Petitioners’ view, because Real Parties’ ALPR systems each generate
more than a million system-wide scans each week, and retain data from these scans for
two to five years, they “do not conduct investigations; they collect data.”
There are two problems with this argument. We have already discussed the first—
the ALPR systems are not merely recording data; rather, Real Parties have deployed these
systems primarily to detect and locate vehicles that have been connected to a suspected
crime. The 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.6
6
For instance, setting practical considerations aside, Real Parties could
hypothetically deploy human patrol units to photograph every license plate they pass
during a specific period on a specific route in order to later compare those photographs
against a hot list of license plates associated with suspected crimes. Though this tactic
would generate a massive number of license plate photographs, of which very few could
be expected to appear on the hot list, no one could claim these photographs, and the
associated time and location data logged by the officers, were not records of the
investigations these officers performed. The fact that the ALPR system automates this
process and generates exponentially more records than officers could humanly produce
has no bearing on whether those plate scans and associated data are records of
investigations under section 6254, subdivision (f).
12
Second, though ALPR data is retained for two to five years after the initial hot list
check, this does not strip an investigative record of its exempt status under section 6254,
subdivision (f). As our Supreme Court explained in Williams, “nothing [in the statute’s
language] purports to place a time limit on the exemption for investigative files.”
(Williams, supra, 5 Cal.4th at p. 357.) Records generated by the ALPR system for the
purpose of locating automobiles associated with a suspected crime, like the investigative
files discussed in Williams, continue to meet the applicable statutory definition even after
the investigations for which they were created conclude—that is, they continue to be
“[r]ecords of . . . investigations conducted by . . . any state or local police agency.”
(§ 6254, subd. (f); see Williams, at p. 357.) Thus, for our purposes in interpreting the
exemption, it is of no moment that Real Parties retain the records in a database for years
after the initial hot list check.
To be sure, the automated nature of the ALPR 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. But that distinction is
irrelevant to the question of whether the ALPR system’s core function is to “uncover[ ]
information surrounding the commission of the violation [of law] and its agency”—i.e.,
to investigate suspected crimes. (Haynie, supra, 26 Cal.4th at p. 1071.). We conclude
that it is, and that the records generated in the course of performing that function are
records of these investigations. The investigative records exemption applies and shields
the plate scan data from disclosure under the CPRA.
Because we conclude the exemption under section 6254, subdivision (f) supports
Real Parties’ decision to withhold the ALPR plate scan data, we do not address whether
Real Parties also met their burden under section 6255’s catchall exemption.
13
DISPOSITION
The petition for writ of mandate is denied. Real Parties are entitled to recover
their costs in this writ proceeding.
CERTIFIED FOR PUBLICATION
KITCHING, Acting P. J.
We concur:
ALDRICH, J.
EGERTON, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
14