By John V. Berry, www.berrylegal.com
Our law firm represents and advised law enforcement officers. A relatively new issues that has come up as of late involves law enforcement department devices which collect massive amount of information. The technology has advanced so far, that significant amounts of information is collected and retained every day. While it has been assumed for some time that this type of information was not obtainable through information request sought by the general public, a new case has cast some doubt or at least some new arguments on the issue that law enforcement should be aware of. In a recent decision, information collected by law enforcement officers from automobile drivers through license plate readers has been ruled not to be necessarily be protected from disclosure. The California Supreme Court recently held in late August that the information collected by law enforcement officers on motorists does not necessarily constitute "investigative records" which are normally kept from the general public. A copy of the opinion can be found here.
Automated license plate readers used by law enforcement officers are very high-speed cameras which are mounted on police vehicles or on light poles (mainly at intersections or other fixed locations). The technology is such that these devices continuously scan and record the license plate of every passing vehicle. Additionally, the date, time and location may be recorded, with a photograph of the vehicle and possible photos of the driver/passengers. Many police departments, on a national basis, utilize the information as a tool to potentially track the whereabouts of criminal suspects.
There are some localities have prohibited the use of the cameras because of potential privacy concerns because the vast majority of drivers being tracked are completely innocent of any criminal activities. One of the additional problems, however, is that the information captured may be maintained for weeks to years. The California Supreme Court, in ACLU v. County of Los Angeles, S227106 (CA Aug. 31, 2017), described the issues with Automatic License Plate Reader (ALPR) technology in the case:
"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."
The lawsuit arose when the ACLU and the Electronic Frontier Foundation, the plaintiffs, requested information under the California Public Records Act (CPSA), 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 of each license plate recorded.’ ” The police departments in Los Angeles who received this request refused to provide that information based on the law enforcement investigation exemption in the CPSA, which is contained in many other similar state and federal records request laws.
The California Supreme Court, in one of the first rulings of this kind, did not automatically uphold the police department's exemption, and held that:
"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” (§ 6254(f)). A plate scan in itself always remains a result of bulk data collection, rather than a record of investigation, even if it has the potential to match a future search query. The fact that a database has been searched or that a plate in the database has been matched in a search does not increase the concerns identified in Haynie with respect to disclosure of the database. Moreover, a contrary rule would enable an agency to exempt such data, purportedly to advance some more traditional “investigation,” simply by searching the entire database. Therefore, the bulk collection of raw ALPR data here is not exempt from disclosure under section 6254(f)."
The court left open other potential ways in which the information could be potentially protected from disclosure, but that the question remained open. The court then remanded the case so that the lower court could balance, on a case by case basis, whether disclose of such records (and disclosure to what extent) is proper. The court also placed the burden on the police departments to show why such information should not be disclosed. The court left open many questions, but an issue that was seemingly closed, the disclosure of mass information collected by law enforcement devices, may now be open to re-examination not just by California but many other states and localities as these issue arise through the use of advanced law enforcement technology. There are certain to be more cases to come. It is not hard to imagine plaintiff's lawyers seeking the information related to civil proceedings involving automobile accidents or perhaps criminal defense attorneys. Given this potential, it is important for officers to at least be aware of these types of questions.
Law enforcement officers should keep updated on changes in law enforcement technology within their department and department policies regarding these types of devices. Law enforcement technology is changing so fast these days that an officer can potentially get into administrative trouble and need legal defense when department's technology outpaces their policies in handling or disclosing such information. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at Berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here Berry & Berry Facebook Page.