by David Reutter

The California Supreme Court held that while raw automated license plate reader (ALPR) data are excempt from California Public Records Act (CPRA) disclosure, further consideration is required to determine if the data may reasonably be anonymized or redacted to facilitate disclosure.

In 2012, the ACLU of Southern California and Electronic Frontier Foundation requested access to one week's worth of ALPR data from the LAPD and LASD to assess the legal and policy implications of the government's collection of vast amounts of information on law-abiding citizens. Access would include about 1.2 million cars from LAPD records and about 1.7 million from LASD. The agencies denied access based on exemptions for law enforcement records of investigations per Gov. Code § 6254(f).

On May 6, 2013, the ACLU petitioned the trial court for a writ to mandate disclosure of the ALPR data. Review was of public interest to determine if the ALPR scanning was intrusive, but concluded that the data were exempt from disclosure under §§ 6254(f) and 6255(a). The court of appeals affirmed that holding.

The California Supreme Court reviewed the lower court's holdings in light of the constitutional rights of any person to access public records, and judicial duty to narrowly construe any exemptions to disclosure. The supreme court held that ALPR scanning does not produce "records of investigations"; therefore, disclosure is not exempt under § 6254(f).

The Supreme Court did find that raw ALPR data are exempt under § 6255(a) because the public interest in disclosure is outweighed by its interest in non-disclosure. The raw data provided too much private and police information. It was stated that access could provide police patrol patterns, private schedules, and witness and confidential information.

The Supreme Court did go a step further to remind the courts that "vague safety concerns" are not a legitimate reason to block or hinder the right to access public records. The Court reversed and remanded the cause for trial court analyses in determining if the raw data could reasonably be anonymitized or redacted so that disclosure of data would be required. The procedure could include substituting license plate numbers with fictional ones, or limiting or separating the data fields to exclude frequency of scans, locations, times, dates, etc.

The Supreme Court held that the rationale and record relied on to deny the claim that anonymity or redaction could shift the public interest is inadequate. The Court ordered further consideration.

See: American Civil Liberties Union Foundation of Southern California v. Superior Court of Los Angeles County, 5227106 (2017), Cal. 5^th.

Peter Bibring and Catherine A. Wagner represented ACLU; Jennifer Lynch represented Electronic Frontier Foundation.

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