Q: My local sheriff recently denied my request for information related to Automated License Plate Readers (ALPRs). I would appreciate any advice you might have about a remedy.
A: As you know, the California Public Records Act (CPRA) sets forth the rules and procedures governing information disclosures made by public agencies, including sheriff’s departments. Public records are open to inspection by members of the public unless they are exempt from disclosure by express exemptions codified in the Act. Cal. Gov. Code § 6253.
The CPRA contains a broad exemption for police investigatory records. Specifically, Cal. Gov. Code § 6254(f) exempts “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of…any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” However, the exemption for “investigatory records” applies “only when the prospect of enforcement proceedings becomes concrete and definite.” Williams v. Superior Court, 5 Cal. 4th 337, 356 (1993).
The California Supreme Court recently addressed the applicability of the “investigatory records” exemption to automated license plate reader (ALPR) data. The Court found this data was not exempt under the investigatory records exemption, in part because ALPR data collected in bulk cannot be considered records of actual investigations. As the Court stated, the “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.” Am. Civil Liberties Union Found. v. Superior Court, 3 Cal. 5th 1032, 1042 (2017). The Court did not decide whether or not an ALPR record that later becomes relevant to an investigation falls under the investigatory records exemption in § 6254(f).
Note that the CPRA also contains a “catch-all” exemption in § 6255(a). Under that exemption, an agency can deny a records request even where no specific exemption applies if it can show that the public’s interest in nondisclosure of the record “clearly outweighs” its interest in disclosure. In the ACLU case cited above, the Court held that the public had a strong interest in maintaining the privacy of people whose license plates are scanned, which outweighed the public’s interest served by disclosing unaltered ALPR data, and therefore found these records exempt under the “catch-all” exemption. Am. Civil Liberties Union Found. v. Superior Court, 3 Cal. 5th at 1044. However, the Court also held that anonymizing or otherwise redacting plate scan data might alter the balance of the public’s interests, and therefore remanded the case to the trial court to determine whether anonymized plate scan data was also exempt under the “catch-all” exemption.
To summarize the present state of the law, non-anonymized ALPR data is not exempt under the investigatory records exemption, but is exempt under the “catch-all” exemption. It is an open question whether anonymized ALPR data also falls under the catch-all exemption. As such, a request for anonymized ALPR data might bear fruit.
If you believe records are being improperly withheld, your recourse is to file a lawsuit. As set forth in Cal. Gov. Code § 6259, a lawsuit to enforce the CPRA is initiated by submitting a verified petition to a court asking it to issue a writ of mandate directing the agency to release the requested records. If you are successful in proving a violation of the public records laws, the court will order the agency to release the records, and the agency will be liable for your court costs and attorney’s fees. Cal. Gov. Code § 6259(b), (d). However, if the court finds your suit is “clearly frivolous,” you will be responsible for the agency’s court costs and reasonable attorney’s fees in defending the lawsuit. Cal. Gov. Code § 6259(d).
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.