By Sergio Rudin
In a recent decision, the California Supreme Court was confronted with the question of whether the Los Angeles Police Department and Los Angeles County Sherriff’s Department properly withheld the production of Automated License Plate Reader (ALPR) data in response to a public records request made by the American Civil Liberties Union of Southern California and the Electronic Frontier Foundation.
The first question considered by the Court was whether ALPR data could be deemed exempt from disclosure under Government Code section 6254(f), which exempts investigative records from disclosure. Noting that the exemptions from disclosure in the Public Records Act must be narrowly construed, the Court determined that ALPR scans are not “investigative records” for the purposes of the Public Records Act “because the scans are not conducted as part of a targeted inquiry into any particular crime or crimes,” and that the ALPR scans typically result in bulk collection of data, the vast majority of which “will prove irrelevant for law enforcement purposes.”
The Court then considered whether ALPR data was exempt from disclosure pursuant to the “catch-all” exemption in Government Code section 6255, which allows an agency to withhold production of records where the public interest in non-disclosure clearly outweighs the public interest in disclosure. Noting that members of the public had a significant privacy interest in protecting information about their own scanned plates from disclosure, the Court held that raw ALPR data collected by police departments is exempt from disclosure under the general balancing test. However, the Supreme Court determined that the trial court had improperly determined that anonymized (i.e. redacted) ALPR data should also be withheld under this balancing test without sufficient evidence to do so. In doing so, it noted that the trial court had not considered the feasibility of, and the interests implicated by, the production of anonymized ALPR data. In overturning the trial court’s ruling, the Court also discounted the possibility that ALPR data may be used to identify law enforcement patrol patterns, stating that “vague safety concerns” were not sufficient by themselves to withhold production of the anonymized data. The Court remanded the case for further proceedings, which remain ongoing.
In summary, the Supreme Court’s decision made clear that raw ALPR data is protected from disclosure. The Court left open the question as to whether police departments must now produce redacted ALPR data, and this issue remains the subject of litigation.
The Supreme Court’s own decision suggests that there are still grounds for police departments to continue to withhold all ALPR data. Puzzlingly, the Court declined to address the applicability of SB 34, enacted in 2015, which added provisions to the Civil Code setting forth legal requirements governing the operation of ALPR systems by public agencies. SB 34 added Civil Code section 1798.90.55, which provides that “[n]otwithstanding any other law or regulation . . . a public agency shall not sell, share or transfer ALPR information, except to another public agency, and only as otherwise permitted by law.” There is no judicial interpretation that provides any further clarification. Rather than address the applicability of SB 34, the Court footnoted that the “[r]ecently enacted Civil Code section 1798.90.5 et seq. does not mention the [Public Records Act], and we do not decide its substantive application here except to note that it prohibits public agencies from selling, sharing, or transferring ALPR data ‘except to another public agency, and only as otherwise permitted by law.’” The Court’s refusal to rule on the applicability of SB 34 is especially troubling because this recent law allows an individual to sue a public agency for unauthorized disclosure of ALPR data, and obtain minimum liquidated damages of $2,500, as well as punitive damages and attorney’s fees.
As a result, public agencies should be wary about disclosing any ALPR data. Because there is no clear authority to the contrary, public agencies may be exposing themselves to the risk of suit if they disclose ALPR data, even in redacted form, due to the enactment of SB 34. Public Records Act requests for ALPR data may be denied based on the catch-all exemption in Government Code section 6255, the prohibition against transfer of ALPR data in Civil Code section 1798.90.55, and Government Code section 6254(k), which exempts from disclosure information where disclosure is “prohibited pursuant to federal or state law.” This area of law can be expected to develop further as the case continues.