AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA v. S.C. (CITY OF LOS ANGELES)Amicus Curiae, League of California Cities and California State Association of Counties, Supplemental BriefCal.March 29, 2017COLANTUONO 790 E. Colorado Boulevard, Suite 850 H I G H S M IT H Michael G. Colantuono Pasadena, CA 91101-2109 MColantuono@chwlaw.us Voice (213) 542-5700 (530) 432-7359 Fax(218) 5425710 WHATLEY, PC March 28, 2017 VIA FEDERAL EXPRESS “FILED. Chief Justice and Associate Justices of MAR 2.9 2017 the Supreme Court Supreme Court of California 350 McAllister Street | San Francisco, CA 94102-4797 Jorge Navarrete Clerk Deputy Re: American Civil Liberties Union Foundation of Southern California, et. al. v. Superior Court of Los Angeles County, et al. (6227106) — Amicus SupplementalLetter Brief Honorable Justices: INTRODUCTION Wewrite as the Court’s March 6, 2017 order invites, to develop an argument madebriefly at pages 38 — 40 of our principal amicusbrief that this Court may affirm Judge Chalfant’s conclusion to deny the writ the ACLU seeks because automatic license plate reader (“ALPR”) data is properly withheld under the “catchall exemption” of Government Codesection 6255, subdivision (a).! On the facts here, the public interests in privacy, efficacious law enforcement and 1 Unspecified references to “sections”in this letter are to the Government Code. 177138.6 California Supreme Court March 28, 2017 Page 2 public safety clearly outweigh the ACLU’s interest in a bit more governmental transparency and accountability. DISCUSSION THE CATCHALL EXEMPTIONOF SECTION 6255. Two provisions of the Public - Records Act (“Act”) exempt public records from the Act’s general duty to disclose public records: sections 6254 and 6255. Section 6254 enumeratescategories of records exempt from disclosure. Section 6255 providesa final “catchall” exemption.It is a balancing exemption, with a bias toward disclosure: The agency shall justify withholding any record by demonstrating that the record in question is exempt under express provisionsof this chapteror 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. The purposeof the catchall exemptionis plain: to allow those who manage public records and courts to protect important public interests in circumstances the Legislature could not foresee. The Legislature chose not to define “public interest” to give the Act appropriateflexibility to balance competing public interests in changing and unforeseen circumstances. For example, counties properly withheld absentee ballot applications in the past, when one must have been absent from hometo apply, to avoid giving burglars a list of targets. Now that more than half the electorate votes absentee, 177138.6 California Supreme Court March 28, 2017 Page 3 the balanceis struck differently and this information is routinely distributed to assist candidates and campaigns in communicating withlikely voters. JUDGE CHALFANT’S RELIANCE ON SECTION 6255. Judge Chalfantarticulated three public interests militating against disclosure of raw ALPR data: (1) personal privacy, (2) efficacious law enforcement, and (3) public safety. He noted that identifying information — like license plate data — is susceptible to abuse, as a “request could be made by a person seekinginformation concerning the whereabouts or driving patterns of his ex-spouse, a stalker looking for a victim, or a criminal defendantlooking for a detective, prosecutor, or judge who convicted him.” (American Civil Liberties Union Foundation of Southern California v. Superior Court ofLos Angeles County (Super. Ct. Los Angeles County, 2014, No. BS143004)at p. 15.) Judge Chalfant weighedthese interests againstthose the ACLUarticulated, namely, “the interest in ascertaining law enforcement abuseof the ALPR system and a general understanding of the picture law enforcement receives of an individual from the system, unsupported by any evidenceas to how well the ALPR data will show this information.” (Id. at p. 17.) Judge Chalfant found the scales tipped toward nondisclosure(Ibid.) Personalprivacy, of course, is at the heart of section 6255 balancing. (City of San Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1018 (City of San Jose) [“Disclosure of public records thus involves two fundamental yet competing interests: (1) prevention of secrecy in government; and (2) protection of individual privacy].) In adopting the Act, the Legislature was “mindful of the 177138.6 California Supreme Court March 28, 2017 Page 4 rightof individuals to privacy” — an inalienable right under our Constitution. (Gov. Code, § 6250; Cal. Const., art. I, § 1.) The Constitution also recognizes the right to access governmentinformation, but subordinates that right to individuals’ privacy interests. (Cal. Const., art. I, § 3, subds.(b)(1), (b)(3).) The public interests in efficacious law enforcement and public safety are no less important. As Judge Chalfant noted, if the raw ALPR data is made disclosable, anyone will have access to the information, from the ACLU’s counsel to those with maliciousintent. (County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1324 [The Public Records Act does notdifferentiate among those whoseek accessto public information” ] (County of Santa Clara).) If a criminal obtained the data, (1) police investigations may be undermined as he “could literally monitor the police to see if he is under investigation and,if so, the nature and timing of its surveillance” (American Civil Liberties Union Foundation of Southern California v. Superior Court of Los Angeles County, supra, (Super. Ct. Los Angeles County, 2014, No. BS143004) at p. 15) or (2) public safety may be compromised as “|d]isclosure could also be used by a criminal to find and harm a third party.”(Id. at p. 17.) SECTION 6255 BALANCING LOOKSTO INTERESTS THE ACT ASSERTS.In applying section 6255, precedent looks to policies reflected elsewhere in the Act — like section 6254, subdivision (f)’s concern for effective police investigations — and to the federal Freedom of Information Act (“FOIA”), upon which the Act 177138.6 California Supreme Court March 28, 2017 Page 5 was modeled.(City of San Jose, supra, 74 Cal.App.4th at p. 1016 [FOIA’s legislative history and judicial construction may be used to construe the Act].) Theinterests in non-disclosure under section 6255 are analogous to those undersection 6254, subdivision(f). (Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, 1338-1339 [The provisions ofsection 6254 will provide appropriate indicia as to the nature of public interest in nondisclosure and will thus aid the courts in determining the disclosability of a document undersection 6255.”) Othercasesare in accord. (Michaelis, Montanari & Johnson v. Superior Court (2006) 38 Cal.4th 1065, 1071 [bids to public agencies notdisclosed becausedisclosure | would undermine purpose of bidding to allow governmentto get competitive terms]; Los Angeles Unified School District v. Superior Court (2014) 228 Cal.App.4th 222 [transparency outweighed by loss of personal privacy andfrustration of governmentinterests in evaluating and assigning teachers].) Section 6254, subdivision (f) protects recordsof investigations from disclosure to preserve the integrity of those investigations. Raw ALPRdatais entitled to similar protection undersection 6255 to avoid frustrating governmental efforts to track and apprehendcriminals. FOIAIS SIMILARLY CONSTRUED.FOIAincludesa balancing provisionlike section 6255. Under FOIA, a “court must balance the public interest in disclosure against the interest Congress intended the [e]xemptionto protect.” (U.S. Dept.of Justice v. Reporters Committeefor Freedom of Press (1989) 489 U.S. 749, 765 (U.S. Dept. ofJustice).) Application of section 6255 must balance the public interest in 177138.6 California Supreme Court March 28, 2017 Page 6 disclosure against the interests comparable to those expressly protected by other | provisionsof the Act. Given section 6254, subdivision (f)’s protection for police l investigatory data to ensureefficacious law enforcement, analysis under section 6255 may properly consider that and related public interests. JUDGE CHALFANT STRUCK THE PROPER BALANCEHERE.In assigning weight to the public interest in disclosure undersection 6255, courts consider the nature of the information and how “disclosure would contributesignificantly to public | understanding of governmentactivities.” (County of Santa Clara, supra, 170 | Cal.App.4th at p. 1324.) Here, the information is raw, unredacted data in the form of license plate numbers,locations, dates, and times. The dataaffects personal privacy becauseit can beusedto identify and track individuals. (See U.S. Dept. of Justice, supra, 489 U.S.at p. 765 [disclosure of records regardingprivatecitizens, identifiable by name, is not what the framersof the FOIA had in mind”].) In addition, release of ALPR data makesnosignificant contribution to | | public understanding of government. Raw data cannot show howthatdatais used. LAPD and LASDdisclosed their policies governing use of the ALPR data. Disclosure of those policies providesa less intrusive means by which the ACLU can more effectively achieveits goals here. The ACLU can usethose records to hold both agencies accountablefor the policies they adopt and howthey use ALPRdata. A week’s data addslittle — but comesat greatcost to privacy, law enforcementefficacy, and to public safety. (Humane Society of the United Statesv. 177138.6 California Supreme Court March28, 2017 Page 7 Superior Court (2013) 214 Cal.App.4th 1233 [weighing contribution of disclosure to transparencyin light of other meansto achieve transparency].) SECTION 6255 CAN BE INFORMEDBY INTERESTS IDENTIFIED IN OTHER STATUTES, TOO. Moreover, application of section 6255 may be informed by public interests identified in not only the Act, but other statutes, too. Civil Code sections 1798.90.5, subdivision (b), and 1798.90.55, subdivision (b), enacted by 2015's Senate Bill 34, reflect a legislative balance of police accountability and efficacy. (Cf. City ofHemet v. Superior Court (1995) 37 Cal.App.4th 1411, 1421 [request for report of internal police investigation determined under more specific Evidence Code provisions].) Here, SB 34 provides public agencies may not “share or transfer” “data collected through the use of an ALPR system.” (Civ. Code, §§ 1798.90.5, subd.(b) and 1798.90.55, subd. (b).) SB 34 specifically exempts ALPR data from disclosure, as the Evidence Code does peaceofficer personnel records (Evid. Code, §1043, 1045 et seq.) By contrast, section 6255 provides a general exemption upon a balancing of countervailing interests recognized by the Act. Just as the specific exemption under the Evidence Code informed the determination to withhold an internal police investigation report in Hemet; so, too, must the specific exemption in SB 34 inform a determination not to disclose ALPR data here. CONCLUSION Section 6255's “catchall” exemption providesa persuasivebasis to affirm here. The public interests in personal privacy, efficacious law enforcement, and 177138.6 California Supreme Court March 28, 2017 Page 8 public safety clearly outweigh the marginal benefit to government transparency and accountability that might be achieved by ordering release of the data the ACLUseeksin additionto the policies it has already obtained. That data would have to be released to all others, too — no matter how motivated — under section 6254.5. Moreover, doing so would addbutlittle to the ACLU’s and the public’s understanding of the use of ALPR technologyinlightof the policies Real Parties have already disclosed — at very great cost to the privacy of thousandsof people whose cars were observed during the week in question by the twolargest police forces in our State. At bottom, the ACLU’s position is ironic — if it is the victor here, the very values of privacy and personal dignity it claims to pursue will be compromisedby that success. It ought not to succeed. Respectfully, Michael G. Colantuono(SBN 143551) Aleksan R. Giragosian (SBN 306107) Counsel for Amici League of California Cities and California State Association of Counties MGCrarg Enclosure: Proof of Service 177138.6 PROOFOF SERVICE ACLUFnd. of So. California, et al. v. Superior Court of California, et al. Supreme Court Case No. 5227106 Court of Appeal 2"4 DCA Case No. B259392 Los Angeles County Superior Court Case No. BS143004 l Ashley A. Lloyd, declare: Tam employedin the County of Nevada,State of California. I am overthe age of 18 and nota party to the within action. My business addressis 420 Sierra College Drive, Suite 140, Grass Valley, California 95945-5091. On March 28, 2017, I served the document(s) described as AMICUS SUPPLEMENTAL LETTER BRIEFonthe interested parties in this action as by placinga true copy thereof enclosed in a sealed envelope addressedasfollows: SEE ATTACHEDLIST yl BY MAIL: The envelope was mailed with postage thereonfully prepaid. Iam readily familiar with the firm’s practice of collection and processing correspondencefor mailing. Underthatpractice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Grass Valley, California, in the ordinary course of business. Iam awarethat on motion of the party served, serviceis presumedinvalid if the postal cancellation date or postage meterdate is more than one dayafter service of deposit for mailing in affidavit. I declare under penalty of perjury under the lawsofthe State of California that the aboveis true andcorrect. Executed on March 28, 2017, at Grass Valley, California. Ashley A. Loyd’ ' / : 177138.6 . SERVICE LIST ACLU Fnd.of So. California, et al. v. Superior Court of California, et al. Supreme Court Case No. 5227106 Court of Appeal 2" DCA Case No. B259392 Los Angeles County Superior Court Case No. BS143004 Peter Bibring Catherine A. Wagner ACLUFoundation of Southern California 1313 West Eighth Street Los Angeles, CA 90017 Attorneys for Petitioner American Civil Liberties Foundation Frederick Bennett Superior Court of Los Angeles County 111 North Hill Street, Rm 546 Los Angeles, CA 90012 Attorneys for Respondent Superior Court of Los Angeles County Heather Leigh Aubry Lisa S. Berger Office of the City Attorney 200 North Main Street 800 City Hall East Los Angeles, CA 90012 | Attorneys for Real Parties in Interest City ofLos Angeles and Los Angeles Police Department 177138.6 Jennifer Ann Lynch Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 Attorneys for Petitioner Electronic Frontier Foundation Thomas A. Guterres Eric Brown James Christopher Jardin Collins Collins Muir & Stewart 1100 El Centro Street South Pasadena, CA 91030 Attorneys for Real Parties in Interest County of Los Angeles and Los Angeles County Sheriff's Department Clerk of the Court Los Angeles County Superior Court 111 North Hill Street Los Angeles, CA 90012 Clerk of the Court Court of Appeal, Second District, Division Three 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Courtesy Copy League of California Cities ATTN:Alison Leary 1400 K Street Sacramento, CA 95814 177138.6 Office of the Attorney General 1300 "I" Street Sacramento, CA 95814-2919 Courtesy Copy California State Association of Counties ATTN:Jennifer Henning 1100 K Street, #101 Sacramento, CA 95814
