AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA v. S.C. (CITY OF LOS ANGELES)

Petitioners’ Petition for Review

Cal.June 15, 2015

S227106 SUPREME CouRT CaseNo. L ED 2nd Civil No. B259392 Los Angeles Superior Court No. BS143004 JUNI 2015 F IN THE SUPREME COURT rank A. McGuire Clerkee Clerk OF THE STATE OF CALIFORNIA Deputy AMERICANCIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA and ELECTRONIC FRONTIER FOUNDATION, Petitioners, Vv. SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent, COUNTY OF LOS ANGELES,and the LOS ANGELES COUNTY SHERIFF’S DEPARTMENT,and the CITY OF LOS ANGELES,and the LOS ANGELES POLICE DEPARTMENT, Real Parties in Interest. After a Decision by the Court ofAppeal, Second Appellate District, Division Three (No. B259392) PETITION FOR REVIEW PETER BIBRING (SBN 223981) JENNIFER LYNCH (SBN 240701) pbibring@aclusocal.org jlynch@eff.org CATHERINE A. WAGNER(SBN 302244) ELECTRONIC FRONTIER cwagner@aclusocal.org FOUNDATION ACLU FOUNDATION 815 Eddy Street OF SOUTHERN CALIFORNIA San Francisco, CA 94109 1313 West Eighth Street Telephone: (415) 436-9333 Los Angeles, California 90017 Facsimile: (415) 436-9993 Telephone: (213) 977-5295 Facsimile: (213) 977-5297 Case No. 2nd Civil No. B259392 Los Angeles Superior Court No. BS143004 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA AMERICANCIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA and ELECTRONIC FRONTIER FOUNDATION, Petitioners, Vv. SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent, COUNTY OF LOS ANGELES,and the LOS ANGELES COUNTY SHERIFF’S DEPARTMENT,and the CITY OF LOS ANGELES,and the LOS ANGELES POLICE DEPARTMENT, Real Parties in Interest. After a Decision by the Court ofAppeal, Second Appellate District, Division Three (No. B259392) PETITION FOR REVIEW PETER BIBRING (SBN 223981) JENNIFER LYNCH (SBN 240701) pbibring@aclusocal.org jlynch@eff.org CATHERINE A. WAGNER(SBN 302244) ELECTRONIC FRONTIER cwagner@aclusocal.org FOUNDATION ACLU FOUNDATION 815 Eddy Street OF SOUTHERN CALIFORNIA San Francisco, CA 94109 1313 West Eighth Street Telephone: (415) 436-9333 Los Angeles, California 90017 Facsimile: (415) 436-9993 : Telephone: (213) 977-5295 Facsimile: (213) 977-5297 TABLE OF CONTENTS I. ISSUES PRESENTED FOR REVIEW.....0.... ccc eescceeessseeseesseseeeneeenees 1 I. WHY REVIEW SHOULD BE GRANTED... ceecceececseceseeeeeeeeeeee 1 Il. STATEMENT OF THE CASE..........ceceececesseeeesssesseseseeseeeeeeenses 6 A. The Nature ofAutomated License Plate Readers............... 6 B. Petitioners’ Public Records Requests and this Action........ 8 C. Court ofAppeal Opinion...eeeeeeeteeseceeereeeneeeeeens 8 TV. ARGUMENT1.0.0... ccccccccecseeseeeeeereceseterseeserssseeseessecessssessesssneseetesass 10 A. The Court ofAppeal’s Holding Significantly Expands the Exemption for “Records of Investigations” Beyond All Prior Case Law ......cccccsscessccescececceessetssceecscersnsoosseeesesseesesseseeneeseseesees 10 1. No Prior Court Has Held the Indiscriminate Collection of Data on Every Memberofthe Public to Be an “Investigation” under § 6254(f) oo...eeeeeeeeseteeseeeeeeee 10 2. Data Collected To Aid Existing and Future Investigations Do Not Necessarily Become Records of Investigations...15 B. In Expanding the Exemption for Records ofLaw Enforcement Investigations, the Court ofAppeal Ignored the Constitutional Requirement that Exceptions to Disclosure Be Narrowly COmstruled ...... eee eeecceseneeeeseeeeeseeeesesserseseesesssseesesescessssssseaeeneees 17 C. The Court ofAppeal’s Opinion Fails to Acknowledge the Fundamental Differences Between ALPR Technology and Traditional Policing and the Impact of that Difference on Public ReCOrds .........ccceeeccesscececceceeeeesceceseceoesececessnserenseseseeeaees 21 D. Expanding § 6254(f) to Exempt Mass Police Data Collection Has Broad Implications for Public Records Accessin California ....s.ccscescssessssesessevesevessscssssssesesseessuessussusssseesessseesssvess26 V.- CONCLUSION .ovescsscsescsssesscssssecsusccnstscsessssesessuecssuessuvesuesssnsesesssaseen 29 CERTIFICATE OF WORD COUNT...ceccssesessssesscssesesesccssssvessessssserecsaveceses 31 CERTIFICATE OF SERVICE...cccsccsssscssescsssssssssssessessescsseessucesesessssssessesses 32 TABLE OF AUTHORITIES Cases Commission on Peace Officer Standards & Training v. Super. Ct., A2 Cal. 4th 278 (2007)......cccccssesecsseccsecsescscsearseneesssesessesseessestssereereseesenees LO Commonwealth v. Augustine, 4 NE. 3d 846 (Mass. 2014)... ecccesceeeesessecsscsseesesseesseneesecnesseeeesneenee 25 County ofLos Angeles v. Super. Ct., 211 Cal. App. 4th 57 (2012)eececsecsscssesssecseesenesesessesseeeenseneneeenenes 18 Dixon v. Super. Ct, 170 Cal. App. 4th 1271 (2009)...ccccescresscseeessecnseneneeseneeneeeneesees20 Fredericks v. Super. Ct, . 233 Cal. App. 4th 209 (2015)...eccessssesssseseessesesenssesseeeesesesneeneeenseees 20 Haynie v. Super. Ct, 26 Cal. 4th 1061 (2001)...eeeeeecseeeseseeeseeereeeseessssneassesenensesseseeaspassim Int’! Fed’n ofProf’l & Technical Eng’rs, Local 21, AFL-CIO v. Super. Ct., A2 Cal. 4th 319 (2007)... cscccsesceescesssesecseeesseseeseeseseesseecsssssseessserenensse 18 Long Beach Police Officers Assn. v. City ofLong Beach, 59 Cal. 4th 59 (2014)... ecccscceseeesccesecsseseesseeseeeesneaserseesseseeneesesseeaesees 18 Los Angeles Unified Sch. Dist. v. Super. Ct, 151 Cal. App. 4th 759 (2007)... eeeseesctesssssescesesesessseesseseeaneetsceneeeees 19 Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250 (2012)eeesees esecteeseeesessseessesseneceneesseenees 18 Rackauckas v. Super. Ct, 104 Cal. App. 4th 169 (2002)...eeeeesesesscnseseeseseeeeessseeeesseeneese 11,14 Riley v. California, 134. S. Ct. 2473 (2014) weeeeeeeeeseeeserseeteeeeerssseeseeesssesesessererssensereees 4,23 Rivero v. Super. Ct, 54 Cal. App. 4th 1048 (1997)...eee ceeesesseesetseeeeeseeeerseseeseseeneesetens 11,14 Sander v. State Bar ofCal., 58 Cal. 4th 300 (2013)... ceccceseccencceeeessececeeeceeeessneesnseecetenseanenssens 4,18 Sierra Club v. Super. Ct, 57 Cal. 4th 157 (2013)...eeeseeseeeeeeereseeseeseeneeseseeeeseeseesaessteesssssees 4,5, 18 ii Sonoma Cnty. Emps.’ Ret. Ass’n. v. Super. Ct, 198 Cal. App. 4th 986 (2011)...eeececeeeeeseeneeeeeeneenseeeseseneeeseesensees 18 State Office ofInspector Gen. v. Super. Ct, 189 Cal. App. 4th 695 (2010)...ceccccecseeseeseeeseeneeeseeeetessenensenseneenees 20 State v. Earls, 70 A.3d 630 (N.J. 2013) weeteeeeeesrecesesseseeeeesseeeaeeeseesesesseesseenseeneesenes 25 Tracey v. State, 152 So. 3d 504 (Fla. 2014) oo.eeeceeeseecsscessseeesseeesesssessssseseaeseneeenees 25 United States v. Cotterman, 709 F.3d 952 (9th Cir, 2013)... ceeeecccseseeseeesssessecenssesseessasenseseesteerssensees 24 United States v. Ganias, 755 F.3d 125 (2d Cir. 2014) oo.eee ceceeeeeenenee sess ssseseseessesessseesseeeseeneees 24 United States v. Jones, 132 S. Ct. 945 (2012) ooo. ceeccceneeesseceeeseeeseeessseeesaueccenseeesenenses 4, 22, 23, 27 United States v. Lichtenberger, 2015 U.S. App. LEXIS 8271 (6th Cir. May 20, 2015) .....eee24 United States v. Saboonchi, 48 F. Supp. 3d 815 (D. Md. 2014) oon.eeeeeeeeecerereeeeeeesstseeseeesseenaees 24 Williams v. Super. Ct., 5 Cal. 4th 337 (1993)... ccccceccssccessseeccessseecssncecessuneeeeeescsnsessneteneeeeeespassim Statutes Gov’t. Code § 6250 oo. ccccccccssessseesssseeesseeceeesseeesesseeessuacecsscecseesaeeseseeeesaeenes 2 Gov't. Code § 6254(f) oceccccsccsseeeseeceecneetsesenseeseaeeecesseaseeseeetaetseeeeneaspassim Gov’ t. Code § 6255 ooo eecccesseesseesseceesseeeseseeeseeesaceseesseeeenseeessseeeeeseneensas 8, 10 Pen. Code, §§ 832.7-832.8 ......cccecscccscesssnceseseessneeeessessnscecssseeeesseesesseieessnes 18 Constitutional Provisions Cal. Const. art. 1, § 3....cccccceccccessccccssssesessseseessens besessecssccsscesevsceareasenseepassim PropoOSition 59...eeeeseeseeeeeteeteeeseeeereeees seceeeecesesecsseseseseceeseeaeeeteeeras 3, 20 ili Other Authorities ACLU, You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements (July 2013) ......ccccceseeceeeesseeeees 3 Adam Goldman & Matt Apuzzo, With cameras, informants, NYPD eyed mosques, Associated Press (Feb. 23, 2012).......ccscessseseeeeseteteneeneeneeees 27 Ali Winston, License plate readers tracking cars, SFGate (June 25, 2013).7 Ballot Argument in Support of Proposition 59, Cal. Sec. of State.............. 18 Cyrus Farivar, Rich California town considers license plate readersfor entire city limits, Ars Technica (Mar. 5, 2013) ........:cccesceseeseseteeseestensees 27 Department of Motor Vehicles, Estimated Vehicles Registered by County for the Period ofJanuary I Through December 31, 2013 vecccsccereee 7 ELSAG North America, ALPR Products and Solutions > Mobile Plate Hunter — 900ccccceesccscecesseecescsecerssnsassssssssevseeeseseessesessesenssesesneeseenseaes 21 Eric Roper, Minnesota House passes protections on vehicle tracking, data misuse, Minneapolis Star Tribune (May 17, 2013)....... veseessaceseeesneeeeseer® 28 International Association of Chiefs of Police, Privacy impact assessment reportfor the utilization oflicense plate readers, 13 (Sept. 2009)......... 28 Jeremy Gillula & Dave Maass, What You Can Learnfrom Oakland’s Raw ALPR Data, Electronic Frontier Foundation (Jan 21, 2015)...29 Julia Angwin & Jennifer Valentino-DeVries, New Tracking Frontier: Your License Plates, Wail Street Journal (Sept. 29, 2012)oes29 Orin Kerr, Applying the Fourth Amendmentto the Internet, 62 Stan. L. Rev. (April 2010)occeceeccscesseeeseeceeeecnecenecscesseccsseeseseesessesaseseseneegs 5, 23, 26 Paul Lewis, CCTV aimedat Muslim areas in Birmingham to be dismantled, The Guardian (Oct. 25, 2010) ceeeeeesssesesseceeeeeeeseenecsseeessneeeteeneeeneees 27 Police Executive Research Forum, Critical Issues in Policing Series, How are Innovations in Technologies Transforming Policing? (Jan. 2012)...28 Richard Bilton, Camera grid to log number plates, BBC (May 22, 2009).27 Shawn Musgrave, Boston Police halt license scanningprogram, Boston Globe (Dec. 14, 2013) once ccccccesscesssessecssceseeesssscessecseussesssssssseeeesseeees 28 iv PETITION FOR REVIEW L ISSUES PRESENTED FOR REVIEW 1. Dodata collected by police using “automatedlicense plate readers”—high-speed cameras that automatically scan and record the license plate numbers andtime, date and location of every passing vehicle without suspicion of criminal activity—constitute law enforcement “records of . . . investigations” that are permanently exempt from disclosure under the Public Records Act pursuant to Gov’t. Code § 6254(f)? 2. Does Proposition 59—the 2004 amendmentto the California Constitution requiring “[a] statute, court rule, or other authority . . . be broadly construedif it furthers the people's right of access, and narrowly construedif it limits the right of access”—require agencies and courts to take a narrow approach whenapplying the records ofinvestigations exemption under Gov’t. Code § 6254(f)? Il. WHY REVIEW SHOULD BE GRANTED This case involves Public Records Act (PRA) requests to the Los Angeles Sheriffs and Police Departments for data collected by “automated license plate readers,” or “ALPRs”—high-speed cameras, mounted on police vehicles or attached to fixed objects like light poles that automatically scan and record the license plate numberand time, date and location of every passing vehicle. Respondents below argued (and the Court ofAppeal agreed) that, because police use the data collected by ALPRsin part by checking it againstlists of vehicles suspected of involvementin criminal activity or registration violations, the act of scanning is an “investigation” ofthose lists of offenses, and respondents could therefore permanently withholdthe collected data from the public as “records of . . . investigations” pursuant to Gov’t. Code § 6254(f). The Court ofAppeal recognized the novelty ofthis question—that “no case has considered whether records generated by an automated process,like that performed by the ALPR system, qualify for exemption” as the record of a law enforcement investigation under Gov’t. Code § 6254(f). See Slip Op. (attached as Exhibit A) at 7. But the court’s opinion upholding the agencies’ decision to withhold this data broadens the scope of that exemption far beyondprevious case law.It also has profound implications for public access to data and imagesroutinely gathered by police using technology ranging from body-worn camerasand public surveillance cameras now to drones and other technologies in the future. Becausethis case presents important issues of law, including the proper interpretation of § 6254(f) in light of the 2004 amendmentto the Constitution requiring a statute be “broadly construedif it furthers the people’s right of access, and narrowly construedif it limits the right of access,” Petitioners respectfully request this Court grant review. The PRA recognizes access to public records as “a fundamental and necessary right of every personin this state.” Gov’t. Code § 6250— right that is further enshrined in California’s Constitution,article. I, § 3(b) (“The people havethe right of access to information concerning the conductofthe people's business . . .”). Given the documented history of abuse ofpolice powerboth within Los Angeles law enforcement agencies and across the country, nowhereis this right more important than to shine light into and act as a check on law enforcementaction. Petitioners sought access to a week’s worth of license plate data gathered by the two Los Angeles law enforcementagencies for precisely this reason—to shed light on police use of ALPRsand to learn how and where the agencies were using ALPRsto collect massive amounts oflicense plate and location information—data on approximately three million vehicles every week. The fact that ALPRscollect license plate and location data indiscriminately, scanning every license plate that comesinto view,is not disputed. Noris the fact that the vast majority of license plates scanned by ALPRs(nearly 99.8% by someestimates') have no connectionto criminal activity or even vehicle registration issues. Nevertheless, the Court of Appeal agreed with the agencies that because the data were collected in part for the purpose of locating stolen and wanted vehicles, every single data point constituted a record of investigation and was therefore exempt under § 6254(f). Byinterpreting § 6254(f) to shield from public view this entire class of records, the Court of Appeal improperly expanded the scope ofthat exemption beyond prior precedent as established by this Court in Williams v. Superior Court, 5 Cal. 4th 337 (1993) and Haynie v. Superior Court, 26 Cal. 4th 1061 (2001), and so stretched the meaning of “investigation”as to force the absurd result that all cars in Los Angeles are constantly under police investigation. In doing so, the court also ignored the constitutional directive established in 2004 by Proposition 59 to “‘broadly construe[]” the Public Records Act to the extent “it furthers the people's right of access” and to “narrowly construe{]”it to the extent “it limits the right of access.”Cal. ' Typically, only about 0.2% of plate scans are connectedto suspected crimesor vehicle registration issues. ACLU, You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements, 13-15 July 2013) https://www.aclu.org/technology-and-liberty/you-are- being-tracked-how-license-plate-readers-are-being-used-record. Const. art. I, § 3(b)(2); accord Sierra Club v. Super. Ct., 57 Cal. 4th 157, 166 (2013) (applying Art. I, § 3(b)(2) to require narrow interpretation of the PRA’s exemption for computer software); Sander v. State Bar ofCal., 58 Cal. 4th 300, 313 (2013) (same asto state bar rules). Indeed, the Court of Appealdid notcite the constitutional rule of narrow constructiona single time, and instead cited cases that predate the amendmentfor the proposition that the exemption for law enforcementrecords is a broad one, without noting any intervening changein interpretive rule. See Slip Op.at 6 n.3. The court also failed to address the fundamental differences between the mass surveillance technology in ALPRs andtraditional humanpolicing, and instead mechanically applied old caselaw addressing targeted investigations by humanofficers to ALPR technology. Indeed, the court’s opinion rests on the presumption that there is no difference between an officer manually checking a single license plate and high-tech surveillance equipment automatically cataloging the locations of millions of vehicles in Los Angeles every week. See Slip Op. at 11 (noting that “the ALPR system replicates, albeit on a vastly larger scale, [an officer] visually reading a license plate and entering the plate numberinto a computer[.] . . . The fact that the ALPR system automates this process does not make it any less an investigation[.] .. .”). This is out of step with courts and commentators that have recognizedthat legal rules and definitions developed in a pen-and- paper era cannotblindly be applied to new technology capable ofcollecting data on a massscale. See, e.g., United States v. Jones, 132 S. Ct. 945, 955 (2012) (Sotomayor, J., concurring); id. at 958 (Alito, J., concurring) (distinguishing GPS monitoring of a car’s location 24 hours per day for 28 days from oneofficer following one vehicle on public streets); Riley v. California, 134 8. Ct. 2473, 2490 (2014) (distinguishing the search incident to arrest of small physical items from the search of a cell phone). AsProfessor Orin Kerr has noted, “[a]s technology advances, legal rules designed for one state of technology begin to take on unintended consequences.” Orin Kerr, Applying the Fourth Amendmentto the Internet, 62 Stan. L. Rev. 1005, 1009 (April 2010). The Court of Appeal’s mechanical application of old case law governing what constitutes an “investigation” under § 6254(f) yields an extraordinary result unintended by the Legislature. Even if one officer manually checking a license plate would be performing an “investigation” within the meaning of § 6254(f), the Legislature did not expressly intend the exemption for records of law enforcementinvestigations to extend to the automated logging of the license plates of millions of law-abiding Los Angeles drivers. But such expresslegislative authorization is required for public records to be exempt from disclosure. Sierra Club v. Super. Ct., 57 Cal. 4th 157, 166 (2013) (given “strong public policy” and “constitutional mandate” favoring disclosure, “all public records are subject to disclosure unless the Legislature has expressly provided to the contrary” (quotation and citations omitted)). Under the Court ofAppeal’s broad application of § 6254(f)’s investigatory records exemption, law enforcement agencies could withhold from public review virtually unlimited amounts of information gathered on innocent Californians merely by claiming it was collected for an investigative purpose. This would remove an important and necessary check on law enforcement action and cannot be whatthe Legislature intended whenit drafted § 6254(f) in 1968, nor what the voters intended when they added governmenttransparency as a fundamentalright to the state constitution in 2004. The Public Records Act allows public scrutiny of agency records so that the people of California can engage in free and informed debate on questionable governmentpolicies and conduct. Recent events clearly demonstrate the value of public access; only this month, Congress passed historic legislation restricting the government’s powers of surveillance by ending the National Security Agency’s bulk collection of telephony metadata. It wasn’t until the facts of this and other secret government programswere disclosed that the public and legislators were able to fully debate and ultimately reshape governmentpolicy. So, too, here: Petitioners seek access to public records so that the legal and policy implications of the government conductat issue may be fully and fairly debated. The rapid advanceofdigital-era technology since Williams and Haynie calls for reexamination of this Court’s analog-era guidelines for determining the scope of the PRA’s “recordsof . . . investigations” exemption, and Petitioners urge this Court to grant review. WW. STATEMENT OF THE CASE The Court of Appeal’s opinion correctly sets forth the facts of the case. Slip Op. 3-5. A. The Nature of Automated License Plate Readers Automated license plate readers, or “ALPRs,” are computer- controlled camera systems—generally mounted on police carsorfixed objects such as light poles—that automatically capture an image of every license plate that comesinto view. Slip Op. at 3. ALPRs can detect when a license plate enters the camera’s field, capture an imageofthe car andits ‘surroundings (including the plate), and convert the imageofthe license plate into alphanumeric data—in effect “reading”the plate. Jd. ALPRs record data on each plate they scan, including not only the plate number but also the precise time, date and location it was scanned. /d. at 2, 4. The systems often capture images not just of the license plate and vehicle but also of the vehicle’s occupants.’ Police use ALPR data in two ways.First, ALPR systems can compare scannedlicense plates against a “hotlist” of license plates associated with suspected crimes or warrants and alert officers when any match or “hit” in the database occurs so they can take enforcementaction. Id. at 3. Second, police accumulate and store ALPR data for use in future investigations. Jd. at 4. LAPD estimates it records plate scan data for approximately 1.2 million cars per week, andretains that data for five years. LASDestimates it records between 1.7 and 1.8 million plate scans per week andcurrently retains data for at least two years, although it would prefer to retain the data indefinitely. Jd. These totals indicate that just these two agencies may haveclose to halfa billion records ofdriver location in their databases—an average of nearly 65 plate scans for each vehicle registered in Los Angeles County.’ LAPD and LASDtherefore retain vast amounts of data on the location history of Los Angeles drivers—adetailed history compiled on ? See Ali Winston, License plate readers tracking cars, SFGate (June 25, 2013) available at http://www.sfgate.com/bayarea/article/License-plate- readers-tracking-cars-4622476.php (license plate image clearly showed man and his daughters stepping out of vehicle in their driveway). > According to the DMV,7,719,360 vehicles were registered in Los Angeles County in 2014. Department of Motor Vehicles, Estimated Vehicles Registered by Countyfor the Period ofJanuary 1 Through December 31, 2013, available at http://apps.dmv.ca.gov/about/profile/est_fees_pd_by_county.pdf(last — visited May 28, 2015). overwhelmingly law-abiding residents that they can query in investigations of future crimes. B. Petitioners’ Public Records Requests and this Action To understand and educate the public on the risks to privacy posed by ALPRsin Los Angeles, Petitioners sought documents related to LAPD and LASD’s ALPRuse,including one week’s worth ofALPR data collected between August 12 and August 19, 2012." Both LAPD and LASD withheld the single week ofALPR data, claiming the data were exempt from disclosure under the PRA’s exemption for records of law enforcement investigations, Gov’t. Code § 6254(f), and the catch-all exemption, id. § 6255(a). Petitioners filed a petition for writ of mandate with Respondent Superior Court seeking to enforce the requests. The Superior Court held a hearing on the petition, agreed with the City and ~ County’s positions and upheld their decisions to withhold the records. Petitioners petitioned for a writ mandate at the Court ofAppeal. Cc. Court of Appeal Opinion The Court of Appeal upheld the trial court’s decision, holding that the automated scanning of plates by ALPR systems constitutes a law enforcement“investigation” and that the data collected by ALPR systems—the data sought by Petitioners—were exemptas “records of . . . investigations” under Section 6254(f). Id. at 10. The court reasoned that because the agencies use ALPR datain part to check against “hot lists” of wanted vehicles associated with some kind of criminal activity, the license * Petitioners also sought documents on policies, practices, procedures, training, and instructions related to ALPRs. Those requestsare notat issue plate scanning constitutes an “investigation”of the “hotlist” crimes. Jd. at 10 (“Real Parties have deployed the ALPRsystem to assist in law enforcementinvestigations involving an identified automobile’s license plate number.It follows that the records the ALPR system generatesin the course of attempting to detect and locate these automobiles are records of those investigations.”). In reachingits holding, the Court ofAppeal recognized that ALPRs collect data automatically and indiscriminately—that an “ALPR system scans every license plate within view, regardless of whetherthecarorits driveris linked to criminal activity.” Slip Op. at 11 (quotations omitted); see also id. at 3 (ALPRs “automatically capture an image of every passing vehicle’s license plate in their immediate vicinity”), 12 (noting that “{t]he ALPRsystem necessarily scans every car in view’). But the court rejected Petitioners’ argument that this indiscriminate, untargeted scanning meant that the scans werenot investigations, emphasizing that data collected through these indiscriminate scans were being used in investigations of specific crimes reflected in the “hotlists” against which scannedplates were compared. /d. at 11. The court reasoned the law enforcement investigations exception “does not distinguish between investigations to determine if a crime has been or is about to be committed and thosethat are undertaken once criminal conduct is apparent.”Jd. at 11-12 (quoting Haynie, 26 Cal. 4th at 1070). The court also rejected Petitioners’ argumentthat the mass scale of data collection through ALPRsandthe prolongedretention of data made ALPR data fundamentally different from recordsoftraffic stops or other investigations that have been held exempt under the PRA. The volume of data collected, the court reasoned, did not changethe characterofthe act of collecting it. See Slip Op. at 12 (“The fact that ALPR technology generates substantially more records than an officer could generate in manually performing the sametask does not mean the ALPRplate scans are not records of investigations.”). Nor did the retention of data andits use in subsequent investigation renderit subject to the PRA, as documentsthat fall within the “records of . . . investigation” exemption are exempt indefinitely, ““even after the investigations for which they are created conclude.” /d. at 13. Because the Court of Appeal held the records exempt under § 6254(f), it did not reach the propriety ofwithholding the data under § 6255’s catch-all exemption. Jd. Petitioners did not file a petition for rehearing with the Court of Appeal. IV. ARGUMENT A. The Court of Appeal’s Holding Significantly Expands the Exemption for “Records of .. . Investigations” Beyond All Prior Case Law The Court ofAppeal held that, because LAPD and LASDusetheir ALPRsystemsto gather data that may be helpful in finding stolen or wanted vehicles, the data must necessarily constitute “records” of these investigations. The Court ofAppeal reasonedthat “[t]hese records would not exist were the County or the City not investigating specific crimes in an attempt to locate persons whoare suspected ofhaving committed crimes.” Slip Op. at 10 (quotation omitted). However, the holding that each ALPR scan is a record of an investigation rather than the collection of data that may be useful in an investigation constitutes a significant expansion over this Court’s prior interpretations of § 6254(f) and would lead to the absurd 10 conclusionthat all drivers in Los Angeles are constantly under investigation, merely because their vehicle may comeinto view of one of the agencies’ ALPR cameras. Thisresult does notfit with any common sense understanding of the term “investigation” asit is used to exempt “records of . . . investigations” in § 6254(f). 1. No Prior Court Has Held the Indiscriminate Collection ofData on Every Member of the Public to Be an “Investigation” under § 6254(f) The PRA defines neither “investigations” nor “records of . . . investigations,” and very few courts in California have addressed this section ofthe statute. However,the few cases to hold records exempt as “records of. . . investigations” under § 6254(f) all involve targeted inquiries into a specific crimeor person that fit easily within the common understanding of police investigations, including a traffic stop, a corruption investigation against a local official,° police internalaffairs investigations,’ and disciplinary proceedings against police officers.* In no case has a California court ever held that data collected indiscriminately on every member of a community constitute investigative records under 6254(f}—until the Court of Appeal’s ruling here. In the main case to address the investigative records exemption, Haynie v. Superior Court, this Court defined “records of investigation exempted under section 6254(f)”as pertaining to “only those investigations > Haynie v. Super. Ct., 26 Cal. 4th 1061, 1070-71 (2001). ° Rivero v. Super. Ct., 54 Cal. App. 4th 1048, 1050-51 (1997). ” Rackauckas v. Super. Ct., 104 Cal. App. 4th 169, 171 (2002). 8 Williams v. Super. Ct., 5 Cal. 4th 337, 341 (1993). 11 undertaken for the purpose of determining whethera violation of law may occur or has occurred.” 26 Cal. 4th at 1071. In Haynie, a man detained by LASDdeputies after a civilian reported suspiciousactivity in the area involving a vehicle similar to his sought records related to his detention and the reasonsforit. Jd. at 1066. This Court held that, because “the investigation that included the decision to stop Haynie andthestopitself wasfor the purpose of discovering whether a violation of law had occurred and, if so, the circumstancesof its commission[,] [r]ecordsrelating to that investigation [were] exempt from disclosure by section 6254(f).” Jd.at 1071. Haynie is readily distinguishable from this case becauseit involved an investigation targeted from its inception at responding to a specific report of criminal activity. Deputies decided to stop Haynie because they suspected he might be involvedin that activity based on the details given in a civilian tip. Therefore all information linked to his stop wasalso part of the investigation into whether he matchedthat tip. In contrast, ALPR plate scans are not precipitated by a specific criminal investigation, nor even an officer’s hunch—they are only precipitated by the nonspecific goal of collecting data that may be helpful in locating known stolen or wanted vehicles. ALPR cameras photograph every license plate that comes into view, and the systemsstore data on up to 14,000 cars during a single shift, regardless of whetherthe car orits driver is linked to criminalactivity. Ex. B at 3 (LASD ALPRTraining Presentation).’? ALPR systems do not ° LASDreleased this presentation in response to Petitioner EFF’s original PRA request. The document wasincluded as an exhibit submitted to the 12 conduct investigations; they collect data. The Court of Appeal, however, relied on Haynie’s description of the investigative records exception to argue that the provision applies to ALPR data, pointing (with emphasis) to Haynie’s statement that “section 6254(f) does not distinguish betweeninvestigations to determine ifa crime has been or is about to be committed and those that are undertaken once criminal conductis apparent,” 26 Cal. 4th at 1070 n.6 (cited in Slip Op. at 7 (emphasis in Slip Op.)). The court also relied on Haynie’s statement: The records of investigation exempted under section 6254(f) encompass only those investigations undertaken for the purpose ofdetermining whether a violation oflaw may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency. Id. at 1071 (cited in Slip Op. at 8 (emphasis in Slip Op.)). But whatthe Court of Appealfailed to recognize is that Haynie addressed a fundamentally different circumstance than this case, one in which officers targeted their investigation of potential criminal activity on a specific vehicle and detained the driver based on tip. Jd. at 1065-66. Haynie’s holding—that police need not be certain in advance that a crime has been committed for their actions to qualify as an “investigation” under § 6254(f)}—1s limited by those facts and does not reach the suspicionless mass surveillance conducted by ALPRs. All ofthe very smail numberofother cases holding documents exempt from disclosure underthe “records of . . . investigations” clause of trial court and available as part of the record submitted to the Court of Appeal. 13 § 6254(f), are distinguishable for the same reason: they each involve requests for documentsrelated to targeted investigations into specific criminalacts. In Williams v. Superior Court, a newspaper requested records of disciplinary proceedings against two deputies involvedin a brutal beating of a drug suspect. 5 Cal. 4th at 341. In Rivero v. Superior Court, a formerpolice officer requested recordsrelating to the “investigation of a local official for failing to account properly for public funds.” 54 Cal. App. Ath at 1051. And in Rackauckas v. Superior Court, a newspaper requested records concerning the investigation of “two separate incidents of alleged police misconduct involving”a specific officer. 104 Cal. App. 4th at 171- 72. In each of these cases, the courts found the records were linked to specific criminal investigations and therefore were properly withheld as recordsofthose investigations. In Haynie, this Court stated, “we do not meanto shield everything law enforcementofficers do from disclosure.” 26 Cal. 4th at 1071. In doing so, the Court acknowledgedthe “records of . . . investigations” exemption has limiting principles, even if it did not define at the time what those were. The automatedcollection of data on millions of innocent drivers in Los Angelesis not an “investigation” within the meaning ofHaynie or any of the cases to apply its rule. ALPRs do not involve a “decision”to investigate like the “decision to stop Haynie,” Haynie, 26 Cal. 4th at 1071; they also do not involve any specific allegations of wrongdoing or a connection to any particular crime. Instead, LPR cameras automatically photograph all plates within view without the driver’s knowledge, without the officer targeting any particular car, and without any level of suspicion. Underno prior cases _ 1s such data-gathering an “investigation” for purposes of § 6254(f). 14 2. Data Collected To Aid Existing and Future Investigations Do Not Necessarily Become Records of Investigations The Court of Appealalso erred by holding the data exemptas “records of . . . investigations” based on the later and separate checks the ALPRsystems perform—comparing the scannedplates against a “hot list” of plate numbers that may be associated with criminal activity. But the fact that the data are used later in investigations does not make them “records of ... investigations.” Neither the Court ofAppeal nor Real Parties suggest that ALPR systems are fundamentally anything but data collection machines, and although the court stated ALPR systems check plates against hot lists “[a]t virtually the same time” they collect plate numbers, the court recognized the collection of data occurs separate from their investigative use. See Slip Op.at 2; id. at 3 (an ALPR “‘almost instantly’ checks the numberagainst a | list of ‘known license plates’ associated with suspected crimes” (emphasis added)). Real Parties acknowledged this in their opposition briefs filed with the Court ofAppeal. The County stated, “[t]he parties all agree that once license plates are scanned by ALPR cameras,the plates are checked against stolen vehicle databases.” See Ex. C at 2 (County Opp’n to Pet. for Writ ofMandate) (emphasis added)). The City similarly described the two- step process of collecting data and checking it against the “hotlist,” referring to the “initial plate scan” as simply a “read”that “[c]apture[s] data.’” See Ex. C at 4 (City Opp’n to Pet. for Writ of Mandate). The “hotlists” of wanted vehicles represent the fruits ofprior investigations that have identified certain vehicles as connected with particular crimes, and Petitioners have not sought those “hotlists,” nor the 15 license plate data associated with thoselists. The fact that a very small numberof scannedplates will be listed on a hotlist does not transform the entire database of plates into investigative records. '° Nor does the agencies’ second use for ALPR data maketheir collection an “investigation.” After ALPR data has been accumulated and stored, police can search that data—data that provides a history of where Los Angeles drivers have been overthe last two to five years—in future investigations. For example, if a robbery occurs while an ALPR-equipped vehicle drives past a house, police whoare investigating the robbery can check the database of scanned plates, not only to identify nearby vehicles that might have been connectedto the crime, see Ex. C at 5 (City Opp’n to Pet. for Writ of Mandate (providing examples)), but also to learn which vehicles have been scanned near that house for many yearsin the past. Therefore, the accumulated data allows officers to investigate crimes that were not identified or committed at the time a driver’s plate was scanned. While the data accumulated by ALPRscan be used for these future investigations, the accumulation ofdata, in itself, does not constitute an “investigation.” And whenthat data is not linked to an investigation at the time it was accumulated, the data cannot constitute a “record” of an investigation. The collection of license plate number, time and location information by the ALPR systems—the ALPRscan data that Petitioners seek—therefore doesnot itself represent a record of an inquiry “undertaken for determining whether a violation of law may occuror has occurred” !° See ACLU,supra n.1 (only 0.2% ofplates scannedare connected to any suspected crimeor registration issue). 16 under Haynie. Andit is this “raw LPR data” capturedin the “initial plate scans,” unconnected from its later use for “hotlist’? checks or other investigations, that Petitioners seek, nothing more. Because the untargeted collection of millions of datapoints each week on the locations of Los Angeles driversis notitself an “investigation” underthis Court’s prior cases, those datapoints cannot be “records of . . . investigations” under § 6254(f), and the Court of Appeal erred by holding that they were. B. In Expanding the Exemption for Records of Law Enforcement Investigations, the Court of Appeal Ignored the Constitutional Requirement that Exceptionsto Disclosure Be Narrowly Construed In 2004, California voters elevated governmental transparency to a constitutional priority when they passed Proposition 59 by an overwhelming margin, thereby amending the state constitution to add the requirementthat: A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construedif it limits the right of access. Cal. Const. art. I, § 3(b)(2). Despite this important and recent change to government transparency law in California, the Court of Appeal never once mentioned the state Constitution or this amendmentin its opinion. As such it failed to recognize that this new constitutional narrowing requirement must necessarily factor in to its application ofpre-2004 case law to the facts of this case. Because the Court of Appeal failed to apply this interpretive requirement to its analysis of Section 6254(f)’s “[rlecords of . investigations” exemption, this Court should grant review to address this - important issue. 17 Asthe plain text indicates, and this Court has repeatedly recognized, the express purpose of Proposition 59 was to create a new interpretive rule for courts. See Long Beach Police Officers Assn. v. City ofLong Beach, 59 Cal. 4th 59, 68 (2014) (“‘ZLBPOA”) (explaining that Art. I, § 3(b)(2) “direct[s] the courts to broadly construe statutes that grant public access to government information and to narrowly construe statutes that limit such access.”).'' This Court has recognized this interpretive requirement and applied it in numerous contexts. See LBPOA, 59 Cal. 4th at 68 (analysis of names ofofficers involved in shootings under Pen. Code, §§ 832.7-832.8); Sierra Club v. Super. Ct., 57 Cal. 4th 157, 167 (2013) (exemption for ‘computer software); Sander v. State Bar of Cal., 58 Cal. 4th 300, 313 (2013) (state bar rules); Int’! Fed’n ofProf’l & Technical Eng’rs, Local 21, AFL-CIO vy. Super. Ct, 42 Cal. 4th 319, 328-30 (2007) (salary information). California appellate courts have similarly recognized that Art.I, § 3(b)(2) requires them to construe non-privacy exemptions to the PRA narrowly. See County ofLos Angeles v. Super. Ct., 211 Cal. App. 4th 57, 63-64 (2012), rev. denied, 2013 Cal. LEXIS 1237 (Feb. 20, 2013) (“records pertaining to pendinglitigation”); Marken v. Santa Monica-Malibu Unified Sch. Dist., 202 Cal. App. 4th 1250, 1262 (2012), rev. denied, 2012 Cal. LEXIS 4200 (May 9, 2012) (records regarding alleged teacher misconduct); Sonoma Cnty. Emps.’ Ret. Ass’n. v. Super. Ct., 198 Cal. App. 4th 986, 1000-04 (2011) (records under Gov’t Code § 31532); see also Los Angeles |" Seealso Ballot Argument in Support of Proposition 59, Cal. Sec. of State, available at vote2004.sos.ca.gov/voterguide/propositions/prop59- arguments.htm (last visited June 11, 2015). 18 Unified Sch. Dist. v. Super. Ct., 151 Cal. App. 4th 759, 765-72 (2007) (applying Art. I, § 3(b)(2) to require broad construction ofterm “person”in interest of furthering transparency). In Commission on Peace Officer Standards & Training v. Superior Court, this Court observed that the need for transparency applies with particular force to police: Law enforcement officers carry upon their shoulders the cloak of authority to enforce the lawsofthe state. . . . It is undisputable that . . . the public has a far greater interest in the qualifications and conduct of law enforcement officers, even at, and perhapsespecially at, an “on the street” level . . . 42 Cal. 4th 278, 297-98 (2007) (quotations omitted). Such transparency regarding the conduct of law enforcement is particularly crucial in the context of surveillance activities, where rapid technological change has the capacity to dramatically alter how departments go about everyday, “on the street” policing. See infra Section IV.C. Despite the clarity of the interpretive rule, the Court of Appeal’s opinion ignoresit entirely. Indeed, the decision neither mentions neither the 2004 constitutional amendmentnorcites a single authority more recent than 2001. Instead, relying on precedent from this Court that predates Proposition 59, the Court ofAppeal reasoned that “[n]Jotwithstanding the general directive to narrowly construe such exemptions, our Supreme Court has explained that section 6254, subdivision (f) ‘articulates a broad exemption from disclosure for law enforcementinvestigatory records[.]’” Slip Op. at 6 n.3 (citing Williams, 5 Cal. 4th at 349(italics in Slip Op.)). But this Court’s characterization in Williams of the “broad exemption”for law enforcement records was made in 1993 and is underminedby the subsequentconstitutional requirement for narrow construction of 19 exemptions. See Cal. Const. art. I, § 3. The Court of Appeal’s opinion goes on to rely heavily on the broad, plain-text interpretation of the exemption articulated by this Court in Haynie in 2001 for its conclusion that each automatic, indiscriminate scan of a plate within range of a police car constitutes a record of an “investigation” within the meaning of the § 6254(f) exemption and repeatedly cites Haynie in arguing that the exemption “broadly shield[s}” records from disclosure. Slip Op. at 10; 6-7. However, evenif this reading ofHaynie were accurate, it would bear serious reconsideration in light of the constitutional amendment enactedthree yearslater. The Court of Appeal’s failure to apply the narrowingruleofart.I, § 3, and its reliance on decisions that predate that constitutional requirement not only undermineits holding on ALPR data, but set troubling precedent for future interpretations of § 6254(f). Neither this Court nor any court of appeal has yet addressed the implications of Proposition 59 for § 6254(f)’s exemption for “recordsof . . . investigations.”’” Therefore, the Court of Appeal’s broad interpretation now represents the primary authority for lower courts on the scope of that exemption. This Court should grant review to ensure Proposition 59’s mandated preference for disclosure is ? Decisions addressing § 6254(f) after 2004 have dealt with other aspects of that provision. See, e.g., Fredericks v. Super. Ct., 233 Cal. App. 4th 209 (2015) (addressing information that must be disclosed pursuant to § 6254(f)(2)); State Office ofInspector Gen. v. Super. Ct., 189 Cal. App. 4th 695, 709-710 (2010) (records exemptaspart of an investigatoryfile for which the prospect of enforcement was concrete and definite); Dixonv. Super. Ct, 170 Cal. App. 4th 1271, 1275-79 (2009) (coroner’s and autopsy records exemptas investigatoryfiles for which the prospect of enforcement was concrete anddefinite). 20 applied to the exemption for police “records of . . . investigations.” C. The Court of Appeal’s Opinion Fails to Acknowledge the Fundamental Differences Between ALPR Technology and Traditional Policing and the Impact of that Difference on Public Records Courts are increasingly recognizing that advances in technology that fundamentally change law enforcement’s ability to collect information on citizens require a re-interpretation of old rules to ensure those rules continue to serve the same functions and protect the same values as they did in the past. Andyet, in the Court of Appeal’s application of Williams and Haynie to the facts ofthis case, it assumes new technologies such as ALPRshaveno impact on how courts should interpret Section 6254(f). This approach not only is out of step with other courts that have addressed the impact of new technologies on old rules but also fails to ensure the underlying values supported by the Public Records Act are preserved in an era of increasing technological change. The Court of Appeal recognized that LAPD and LASD’s ALPR systems together record the plate number, time, date, and location of approximately 3 million vehicles every week. LASD hasstated that “ALPR has the ‘ability’ to read more than 14,000 license plates during the course of a shift,” Ex. B at3 (LASD ALPRTraining Presentation), and one ALPR system vendorhas claimed that its product can “capture[] up to 1,800 license plate reads per minute.”’? Nevertheless, the Court ofAppeal '? ELSAG North America, ALPR Products and Solutions > Mobile Plate Hunter — 900,http://elsag.com/mobile.htm (last visited June 11, 2015). LASDalso notes that ALPRs “can reada license plate, coming in the opposite direction, at over 160mph.” Ex. B at 3 (LASD ALPRTraining 21 presumedthat “[t}he fact that the ALPR system automatesthis process and generates exponentially more records than officers could humanly produce has no bearing on whetherthose plate scans and associated data are records of investigations under § 6254, subdivision (f).” Slip Op. at 12 n.6; see also id. at 11, 12. But the vast data collection possible with ALPRs meansthese twosituations are fundamentally different. Although the Court of Appeal imagines a hypothetical police force devoted to taking down and checking the license plates of every car that passes, see Slip Op. at 12 n.6, human officers cannot possibly check as many plates per minute as an ALPR system, let alone check the license plate of every car they pass onthestreets ofLos Angeles.'* Forthis reason, officers necessarily check vehicles based on suspicion or hunches and select particular plates to run against the database. Because ALPRscheck every plate that comesinto view, they are untargeted, indiscriminate and comprehensive in a way that human officers can never be. When this Court addressed the investigatory records exemption in Williams and Haynie,it could not have contemplated an application of § 6254(f) that would cover such a vast collection of data. Presentation). It is unlikely a human could accurately record plate data on a vehicle traveling at this speed. '' This hypothetical police force parallels an argument advanced by Justice Scalia in Jones that a GPS tracker was not unlike a constable concealing himselfin a target’s coach to track the subject’s movements.” Jones, 132 S.Ct. at 950 n.3 (Scalia, J.), a hypothetical that Justice Alito pointed out would require “either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.” Jd. at 958 n.3 (Alito, J., concurring in the judgment). Similarly here, the inability of humanofficers to collect data in the manner ALPRscan anddoillustrates that the devices are doing something quite different from humanofficers. 22 Contrary to theCourt ofAppeal’s approach, other courts and commentators have recognized that technology does matter andthat legal rules and definitions developed in a pen-and-paperera cannotblindly be applied to new technology capable of collecting data on a massscale. As Professor Kerr has observed: Technology provides new ways to do old things more easily, more cheaply, and more quickly than before. As technology advances, legal rules designed for one state of technology begin to take on unintended consequences. If technological change results in an entirely new technological environment, the old rules no longer serve the same function. New rules may be neededto reestablish the function of the old rules in the new technological environment. Kerr, 62 Stan. L. Rev. at 1009. For example, while officers can undoubtedly follow a car without a warrant, five justices of the U.S. Supreme Court held that the constant stream of electronic data and detailed location information provided by a GPStracker means that placement of such a tracker on a car without a warrant violates the Fourth Amendment. Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring); id. at 958 (Alito, J., concurring) (concluding that defendant had a reasonable expectation ofprivacy from GPS location monitoring). Similarly, while police who makeanarrest have long been permitted to search physical containers found on the arrestee’s person, the Supreme Court in Riley v. California held that warrantless searches incident to arrest of the contents of cell phones violated the Fourth Amendment. 134 S. Ct. at 2485. Because ofphones’ “immensestorage capacity” and the extraordinary range ofpersonal information they can contain, the Court held they “differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” /d. at 2489. 23 Courts addressing computer searches have similarly found old rules cannot blindly be applied to new technology. For example, in United States y. Ganias, the Second Circuit Court ofAppeals noted that computerfiles “may contain intimate details regarding an individual’s thoughts,beliefs, and lifestyle” and may therefore warrant even greater Fourth Amendment protection than “18th Century ‘papers.’” 755 F.3d 125, 135 (2d Cir. 2014). And in United States v. Cotterman, the Ninth Circuit held officers must have reasonable suspicion to conduct a forensic search of a computerat the border because the “gigabytes of data regularly maintained as private and confidential on digital devices” distinguish the contents of a computer from the contents of luggage. 709 F.3d 952, 957, 964 (9th Cir. 2013); see also, e.g., United States v. Lichtenberger, 2015 U.S. App. LEXIS 8271, at *17, *20 (6th Cir. May 20, 2015) (recognizing “extensive privacy interests at stake in a modern electronic device” and distinguishing a computer from a package underthe private search doctrine); United States v. Saboonchi, 48 F. Supp. 3d 815, 819 (D. Md. 2014) (noting “[flacile analogies of forensic examination of a computer or smartphoneto the search of a briefcase, suitcase, or trunk are no morehelpful than analogizing a glass ofwater to an Olympic swimming pool because both involve water located in a physical container” and holding forensic searches of smartphonesandflash drive at the border must be based on reasonable, particularized suspicion). Courts have been increasingly sensitive to technology, like ALPRs, that can track a person’s location information over time. For example, in protecting cell site location information (CSLI)"° in Commonwealth vy. '® CSLIis data generated whencell phones identify themselves to nearby cell towers.It “allowscarriers to locate cell phones on a real-time basis and 24 Augustine, the Massachusetts Supreme Judicial Court recognized that historical location data gives police access to something they would never _ have with traditional law enforcement investigative methods:the ability “to track and reconstruct a person’s past movements.” 4 N.E. 3d 846, 865 (Mass. 2014). Similarly, in State v. Earls, the New Jersey Supreme Court distinguished CSLI from older, less sensitive tracking devices like beepers because CSLIblurs “the historical distinction between public andprivate areas .. . [and thus] does more than simply augmentvisualsurveillance in public areas.” 70 A.3d 630, 642-43 (N.J. 2013)(citing United Statesv. Knotts, 460 U.S. 276, 282 (1983)); see also Tracey v. State, 152 So. 3d 504, 522, 524-25 (Fla. 2014) (distinguishing real-time cell site location information from the Knotts beeper). Here, the mechanical application of rules from prior cases obscures the basic question before the court: Did the Legislature, in creating § 6254(f)’s exemption for “records of . . . investigations” in 1968, intend to exempt data collected en masse by automated systems about every driver in Los Angeles, law-abiding and criminal alike? The answeris clearly no. The exemption for law enforcementrecordsis intendedto protect “the very sensitive investigative stages of determining whether a crime has been committed or who has committed it,” Haynie, 26 Cal. 4th at 1070. The data collected by ALPRsprovides no information about whopolice are investigating. The ALPR’s automated scanningofa license plate is not an investigation;it is the collection of data that can be used in investigations. Aswith GPStrackers, CSLI, and cell phone and computersearches, to reconstruct a phone’s movementfrom recorded data.” Earls, 70 A.3d at 632. 25 ALPRtechnology fundamentally changes the “technological environment.” Kerr, 62 Stan. L. Rev. at 1009. The Court of Appeal’s rote application Williams and Haynie to the facts of this case not only fails to acknowledge the impact oftechnology on modern law enforcementdata collection but fails to preserve the democratic values the Public Records Act was intended to protect. D. Expanding § 6254(f) to Exempt Mass Police Data Collection Has Broad Implications for Public Records Accessin California The Court of Appeal’s broad ruling exempting from public disclosure any information collected by police through automated surveillance technology, without any suspicion of wrongdoing and indeed without any humantargetingat all, holds profound implications for access to information not only about ALPRs, but about other formsofpolice surveillance and data compiled to promote police accountability, including the footage from police body cameras. Byputting data out ofpublic reach, the Court ofAppeal’s decision significantly hinders police transparency in at least two ways.First, the Court ofAppeal’s ruling holds implications for a wide range of other “records generated by an automated process.” Slip Op. at 7. For example, data collected by body camerasor patrol car dash cameras could corroborate complaints of police misconduct, but under the Court of Appeal’s holding such footage would be exempt from disclosure. The opinion therefore threatens to make even data collected for purposes of providing police accountability confidential and within department’s discretion to withhold. 26 Second,the decision hides the full implications ofALPR and other surveillance technology from public scrutiny andstifles informed debate about the balance between privacy and security. ALPRspose significant risks to privacy andcivil liberties. They can be used to scan and record vehicles at a lawful protest or house of worship; track all movementin and out of an area;'° gather information aboutcertain neighborhoods” or organizations;'® or place political activists on hotlists so that their movementstriggeralerts.'” The U.S. Supreme Court has noted the sensitive nature of location data and the fact that it can reveal “a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations.” See Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring); id. at 958 (Alito, J., concurring). The International Association of Chiefs of Police has cautioned that ALPR technology“risk[s] . . . that individuals will become more cautious in the exercise of their protected rights of '® Cyrus Farivar, Rich California town considerslicense plate readersfor entire city limits, Ars Technica (Mar. 5, 2013) http://arstechnica.com/ tech- policy/2013/03/rich-california-town-considers-license-plate-readers-for- entire-city-limits/. "” See Paul Lewis, CCTVaimedat Muslim areasin Birminghamto be dismantled, The Guardian (Oct. 25, 2010). http://www.guardian.co.uk/uk/2010/oct/25/birmingham-cctv-muslim-areas- surveillance (last visited June 11, 2015). '8 See Adam Goldman & Matt Apuzzo, With cameras, informants, NYPD eyed mosques, Associated Press (Feb. 23, 2012). http://www.ap.org/Content/AP-In-The-News/20 12/Newark-mayor-seeks- probe-of-NYPD-Muslim-spying(last visited June 11, 2015). '? Richard Bilton, Camera grid to log numberplates, BBC (May 22, 2009), available at http://news.bbc.co.uk/2/hi/programmes/ whos_watching_you/8064333.stm (last visited June 11, 2015). 27 expression, protest, association, and political participation because they . : 2 consider themselves under constant surveillance.” ° Despite these risks, police use ofALPRs has explodedin recent years. In a 2011 survey, 71% of police departments used ALPR technology and 85% expected to acquire or increase use in the nextfive years.” Public access to ALPR data has provided important checks against abuse and prompted debate about the technology. The Boston Police Department“indefinitely suspended” its ALPRuse after data released to the Boston Globe led to questions about the scope of data collected, the ptivacy invasion involved, and the department’s ability to safeguard data.” In Minneapolis, a Star Tribune story about ALPRsled to a public debate on data retention policies.” Otherarticles and publications have used ALPR data to provide importantinsight into the use—andpotential abuse—of ALPRs.In 2012, the Wall Street Journal obtained ALPR data from ?° International Association of Chiefs of Police, Privacy impact assessment reportfor the utilization oflicense plate readers, 13 (Sept. 2009), available at http://www.theiacp.org/Portals/0/pdfs/LPR_Privacy_Impact_ Assessment.pdf(last visited June 11, 2015). 21 Police Executive Research Forum,Critical Issues in Policing Series, How are Innovations in Technologies Transforming Policing?, 1-2 (Jan. 2012), available at http://www.policeforum.org/assets/docs/ CriticalIssues_Series/how%20are%20innovations%20in%20technology% 20transforming™%20policing%202012.pdf. *? Shawn Musgrave, Boston Policehalt license scanningprogram, Boston Globe (Dec. 14, 2013), available at http://www.bostonglobe.com/metro/ 2013/12/14/boston-police-suspend-use-high-tech-licence-plate-readers- amid-privacy-concerns/B2hy9UIzC7KzebnGyQ0JNM/story.html(last visited June 11, 2015). *3 ric Roper, Minnesota House passes protections on vehicle tracking, data misuse, Minneapolis Star Tribune (May 17, 2013). http://www.startribune.com/politics/statelocal/207965541 html 28 Riverside County, allowing reporters to analyze the numberoftimes cars appearedin the database, to find the numberofuniqueplates, and to set up a web-basedtoolto allow readers to see if (and where and when) their vehicles had been scannedin Riverside County.” Petitioner EFF used ALPRdata obtained from the Oakland police to perform a similar analysis, to create a “heat map” to show where ALPRsare deployed most frequently, and to map ALPRuseagainst publicly-available crime and census data.”° Raw ALPRdata shows moreclearly than any other information how police use ALPRs. Without that data the public whose whereaboutsare being recorded cannot know the scopeofthe intrusion nor challengepoliciesthat inadequately protect their privacy. The extraordinary implications of the Court of Appeal’s ruling for ALPRs andfor other technology necessitate this Court’s review. V. CONCLUSION The Court of Appeal’s decision significantly expands the Public Records Act exemption for records of law enforcementinvestigations to encompass data gathered indiscriminately on law-abiding Californians, without any individualized suspicion of criminal activity. Because ofthe erroneousresult, the tension between the Court of Appeal’s analysis and the *4 See Julia Angwin & Jennifer Valentino-DeVries, New Tracking Frontier: Your License Plates, Wall Street Journal (Sept. 29, 2012). http://on.wsj.com/1w2G8gB.The article also described a San Leandro resident who received 112 images of his vehicle over a two-year period in response to a records request. *5 Jeremy Gillula & Dave Maass, What You Can Learnfrom Oakland's Raw ALPR Data, Electronic Frontier Foundation (Jan 21, 2015), at https://www.eff.org/deeplinks/2015/01/what-we-learned-oakland-raw-alpr- data. 29 preference for public access to records embodied in Article I, section 3 of the California Constitution, and the profound implications of the Court of Appeal’s opinion for public access to records of police surveillance, Petitioners respectfully request that this Court review this important case and restore the public’s constitutionally protected right of access. Dated: June 15, 2015 Peter Bibring Catherine A. Wagner AMERICANCIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA Attorneys for Petitioners 30 CERTIFICATE OF WORD COUNT I certify pursuant to California Rules of Court 8.204 and 8.504(d) that this Petition for Writ of Mandate is proportionally spaced, has a typeface of 13 points or more, contains 8, 260 words, excluding the cover, the tables, the signature block, verification, and this certificate, which is less than the total number ofwords permitted by the Rules of Court. Counsel relies on the word count of the Microsoft Word word-processing program used to preparethisbrief. Dated: June 15, 2015 AdeKGS fentyeer mee ) nsetfor2etrfioners 31 CERTIFICATE OF SERVICE I, Madeleine Mulkern, do hereby affirm I am employed in the County of San Francisco, State of California. I am over the age of 18 years and not a party to the within action. My business address is 815 Eddy Street, San Francisco, California 94109. I am employedin the office of a memberofthe bar of this court at whose direction the service was made. On June 15, 2015, I served the foregoing document: PETITION FOR REVIEW,on the parties in this action by placing a true and correct copy of each document thereof, enclosed in a sealed envelope on the personsbelow asfollows: Clerk ofthe Court Court ofAppeal of California Second Appellate District Division Three Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Los Angeles County Superior Court Stanley Mosk Courthouse Honorable James C. Chalfant 111 North Hill Street, Dept. 85 Los Angeles, CA 90012 Heather L. Aubry, Deputy City Attorney 200 North Main Street 800 City Hall East Los Angeles, CA 90012 Tel: (213) 978-8393 Fax: (213) 978-8787 Attorneys for Real Parties in Interest: City of Los Angeles and Los Angeles Police Department 32 Eric Brown Tomas A. Guterres Collins Collins Muir & Stewart, LLP 1100 El Centro Street South Pasadena, CA 91030 Attorneys for Real Parties in Interest: County of Los Angeles I deposited the sealed envelopes with the United States Postal Service, with postage thereon fully prepaid. I am a resident of the county where the mailing occurred. The envelope was placed in the mail at San Francisco, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this document was Madeleine Mulkern executed on June 15, 2015. 33 Exhibit A Exhibit A COURT OF APPEAL — SECONDDIST. FILED May 06, 2015 JOSEPHA. LANE,Clerk ames Renteria peputy Clerk Filed 5/6/15 CERTIFIED FOR PUBLICATION J IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA ° SECOND APPELLATE DISTRICT DIVISION THREE AMERICANCIVIL LIBERTIES UNION B259392 FOUNDATION OF SOUTHERN CALIFORNIAetal., (Los Angeles County Super. Ct. No. BS143004) Petitioners, Vv. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; COUNTY OF LOS ANGELESet al., Real Parties in Interest. PETITION for Writ of Mandate from an order of the Superior Court of Los Angeles County, James C. Chalfant, Judge. Petition denied. Peter Bibring for Petitioner American Civil Liberties Union Foundation of Southern California. | Jennifer Lynch for Petitioner Electronic Frontier Foundation. No Appearance for Respondent. Michael N. Feuer, City Attorney, Carlos De La Guerra, Managing Assistant City Attorney, Debra L. Gonzales, Assistant City Attorney, and Heather L. Aubry, Deputy City Attorney, for Real Parties in Interest City of Los Angeles and the Los Angeles Police Department. Collins Collins Muir + Stewart, Eric Brown, Tomas A. Guterres and James C. Jardin for Real Parties in Interest County of Los Angeles and the Los Angeles Sheriff's Department. INTRODUCTION In this writ proceeding we must determine whether the California Public Records Act (CPRA) exemptionfor law enforcementrecordsof investigations (Gov. Code, § 6254, subd. (f))' applies to records generated by a system of high-speed camerasthat automatically scan andcatalogue license plate imagesto aid law enforcementin locating vehicles associated with a suspected crime. We conclude the exemption applies. For more than a decade, the Los Angeles Police Department (LAPD) and Los Angeles Sheriffs Department (LASD), agencies of Real Parties in Interest the City and County of Los Angeles (collectively, Real Parties), have used Automatic License Plate Reader (ALPR) technology to automate a processthatofficers ordinarily perform manually—checking license plates to determine whethera vehicle is stolen or otherwise wanted in connection with a crime. Real Parties’ ALPR systemsconsist of specialized cameras mountedto patrol carsor stationary structures that scan license plates in their immediate vicinity and record the license plate number together with the time and location of the scan. At virtually the same time, the ALPR system checksevery license plate numberit scansagainsta list of knownlicenseplates associated with suspected crimes—a so-called “hotlist.” If the system registers a hit, patrol officers are immediately notified that a hotlist vehicle is in their vicinity. Regardless of whether there is a hit, the system recordsthe plate scan data, which Real Parties retain for up to five years for use in future investigations. ! Subsequentstatutory references are to the GovernmentCode, unless otherwise designated. Petitioners American Civil Liberties Union Foundation of Southern California and Electronic Frontier Foundation sent Real Parties a CPRA request for their policies and guidelines concerning use of ALPR technology, as wellas all ALPR plate scan data Real Parties collected during a single week in August 2012. Real Parties agreed to produce the policies and guidelines, but refused to disclose the week’s worth of ALPRdata,citing the law enforcementinvestigative records exemption and privacy concerns. Petitioners filed a petition for writ of mandate seeking to compel production of the ALPR data underthe CPRA. Thetrial court denied the petition, concluding the records are exempt as records of law enforcementinvestigations under section 6254, subdivision (f). Guided by ; Supreme Court precedent extending the exemption to “records of investigations — conducted for the purpose of uncovering information surrounding the commission of the violation [of law] and its agency” (Haynie v. Superior Court (2001)26 Cal.4th 1061, 1071 (Haynie)), we likewise conclude the exemption applies to records generated by the ALPRsystem in the courseof scanning license plates to locate automobiles associated with a suspected crime under investigation. Accordingly, we deny the writ petition. . FACTS AND PROCEDURAL BACKGROUND Therelevant facts are not in dispute. Real Parties each maintain an ALPR system that consists of several high-speed cameras mounted onfixedstructures and patrol cars that automatically capture an image of every passing vehicle’s license plate in their . immediate vicinity. The system uses “character recognition software”to read the license plate’s number from the image and“almost instantly” checks the numberagainsta list of “known license plates” associated with suspected crimes—ora “hotlist’—1o determine whether a vehicle may be stolen or otherwise associated with a crime, AMBERalert or outstanding warrant. If a mobile ALPR unit detects a license plate on the hotlist, officers are notified of the “hit” by an audible alert and notation ontheir patrol car’s computer screen. ALPRfixedpositions similarly notify a central dispatch unit when hit is detected. In addition to extracting the license plate number, the ALPR system records the date and location where it captured the plate’s image. The system transmits this “plate ~ scan data” to an ALPRserver within RealParties’ confidential computer networks. _ LAPDestimatesit records plate scan data for approximately 1.2 million cars per week; LASDestimatesthat figure to be between 1.7 and 1.8 million plate scans for its ALPR system. LAPDretains plate scan data for five years underits current policy. LASD retains the data for two years, although it would prefer to retain the data indefinitely. In addition to receiving immediate notification from the ALPR system whenit locates a license plate on the hotlist, Real Parties can also query stored plate scan data to assist in subsequent lawenforcement investigations. Forinstance, LAPD investigators _ have used stored ALPR data to identify a vehicle that was present at an armed robbery and, in another instance, a vehicle directly linked to a homicide. Real Parties maintain policies restricting access to plate scan data for law enforcement purposesonly. On August 30 and September4, 2012, Petitioners sent substantially identical CPRA requests to LAPD and LASDseeking records related to those agencies’ use of ALPRtechnology, 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 for each license plate recorded.” The CPRA request also sought “any policies, guidelines, training manuals and/or instructions on the use ofALPR technology and the use and retention of ALPR data, including records on where the data is stored, how longit is stored, who has accessto the data, and how they accessthe data.” Real Parties each agreed to produce records responsiveto Petitioners’ requests for policies, guidelines and training manuals concerning the use, access, and retention of ALPRplate scan data. Real Parties refused to produce the requested week’s worth of plate scan data, however, citing, among other things, the exemption for records of law enforcementinvestigations. On May6, 2013, Petitioners filed a verified petition for writ of mandate to compel production of the ALPR plate scan data under the CPRA. Real Parties each opposedthe petition, again citing the exemption for records of law enforcement investigations under section 6254, subdivision (f), as well as the “catchall” exemption under section 6255.2. Withtheir opposition briefs, Real Parties filed supporting declarations by their subject matter experts detailing the technical aspects of their respective ALPR systems and the ways each law enforcement agencyusesthe technology in practice. On August 21, 2014, the court held a trial on Petitioners’ writ petition. On August 27, 2014, the court entered an order affirming Real Parties’ decision to withhold the ALPRplate scan data, concluding the data was subject to the records of investigations exemption undersection 6254, subdivision (f) and the catchall exemptionunder section 6255. DISCUSSION 1. Standard ofReview A trial court order under the CPRA,either directing disclosure by a public official or affirming the public official’s decision to refuse disclosure, is immediately reviewable by petition to the appellate court for issuance of an extraordinary writ. (§ 6259, subd. (c).) “The standard for review ofthe orderis ‘an independent review ofthe trial court’s ruling; factual findings madebythetrial court will be upheld if based on substantial evidence.’ ” (City ofSan Jose v. Superior Court (1999) 74 Cal.App.4th 1008, 1016.) Theinterpretation of the CPRA,and application of the statute to undisputed facts is a question of law subject to de novo review. (Lorig v. Medical Board (2000) 78 Cal.App.4th 462, 467.) 2 Undersection 6255, a public agency mayjustify withholding records otherwise subject to CPRA disclosure requirements by demonstrating 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.” 2. The Records ofInvestigations Exemption Under Government Code Section 6254, Subdivision (f) The CPRA declaresthat“access to information concerning the conductof the people’s business is a fundamental and necessary right of every personin this state.” (§ 6250.) The statute’s explicit purpose is to increase freedom of information by giving the public access to information in the public agencies’ possession. (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 651.) “Maximumdisclosure of the conduct of governmental operations wasto be promoted by the [CPRA].” (Id. at pp. 651-652.) To that end, the CPRA provides that “every person hasa right to inspect any public record, except as . hereafter provided.”. (§ 6253, subd. (a).) Hence,“all public records are subject to disclosure unless the Legislature has expressly providedto the contrary.” (Williams v. | Superior Court (1993) 5 Cal.4th 337, 346 (Williams), Haynie, supra, 26 Cal.4th at p. 1068.) Consistent with the CPRA’spurpose,“[s]tatutory exemptions from compelled disclosure are narrowly construed.” (California State University, Fresno Assn., Inc. v. Superior Court (2001) 90 Cal.App.4th 810, 831.) Real Parties contend,andthe trial court found, that the plate scan records generated by the ALPR system constitute records of investigations which are exempt from disclosure under section 6254, subdivision (f). In pertinent part, subdivision (f) authorizes a public agency to withhold “[rJecords of. . . investigations conducted by . . any state or local police agency, or any investigatory or security files compiled by any other state or local police agency ... .” While broadly shielding the records themselves from disclosure, the CPRA requires law enforcement agenciesto disclose certain information derived from the records, as provided in subdivisions(f)(1) and (£)(2).° 3 Notwithstanding the general directive to narrowly construe such exemptions, our Supreme Court has explained that section 6254, subdivision (f) “articulates a broad exemption from disclosure for law enforcementinvestigatory records,” whichis limited only by requirements in subdivisions (f)(1) and(£)(2) to “provide certain information derivedfrom the records about the incidents underinvestigation.” (Williams, supra, 5 Cal.4th at p. 349,italics added.) Thatis, “[i]nstead of adoptingcriteria that would require the exemption’s applicability to be determined on a case-by-casebasis,” the (Williams, supra, 5 Cal.4th at p. 353; Haynie, supra, 26 Cal.4th at p. 1068.) The parties agree that the derivative categories of information to be disclosed under these subsections—information aboutarrests andarrestees (§ 6254, subd. (f)(1)) and complaints and requests for assistance (§ 6254, subd. (f)(2))—are notat issue in this case. Whatis at issue is the meaning of the term “investigations” in section 6254, subdivision (f), and whether the functions performed by the ALPR system can properly be characterized as investigations underthe statute. Though the CPRA doesnot define the term, and no case has considered whetherrecords generated by an automated process, like that performed by the ALPR system, qualify for exemption under subdivision (f), our Supreme Court has articulatedsome general principles to guide our analysis. First, the exemption for records of investigation encompassesroutine investigations undertaken to determine if a violation of law has, or may have, occurred. In rejecting an interpretation that would exclude such records from the exemption’s purview,the Supreme Court in Haynie explained, “The Court of Appeal, in ordering disclosure, reasonedthat the citizen report . . . did not ‘necessarily’ describe a crime and that the [law enforcementaction] wasa ‘routine police inquiry’ based on mere suspicion of criminal conduct. Thesefactors are ofno significance underthe statute. In exempting ‘[r]ecords of complaints to, or investigations conducted by’ law enforcement agencies, section 6254(f) does not distinguish between investigations to determine ifa crime has been oris about to be committed and those that are undertaken once criminal conductis apparent.’ (Haynie, supra, 26 Cal.4th at p. 1070,fn.6,italics added.) Legislature “limited the CPRA’s exemption for law enforcement investigatory files... [by] adopt[ing] a series of amendments that requiredthe disclosure of information derivedfrom the records while, in most cases, preserving the exemption for the records themselves.” (/d. at p. 353.) 4 This distinguishes the records of investigations from “investigatory . . files compiled by any . . . local agency for correctional, law enforcement, or licensing ' purposes... .” (§ 6254, subd.(f), italics added.) As the Supreme Court explained in Williams,it is “well established that ‘information in public files [becomes] exemptas ““nvestigatory” material only when the prospect of enforcement proceedings [becomes] concrete and definite.’ ” (Williams, supra, 5 Cal.4th at p. 356.) “Such a qualification is Second, while routine investigations are within the exemption’s ambit, not everything that law enforcement does is shielded from disclosure. As the court explained im Haynie, “folften, officers make inquiries of citizens for purposes related to crime prevention and public safety that are unrelated to either civil or criminalinvestigations. The recordsof investigation exempted under section 6254(f) encompass only those investigations undertakenfor the purpose ofdetermining whethera violation oflaw may occur or has occurred. Jfa violation or potential violation is detected, the exemption also extends to records ofinvestigations conductedfor the purpose ofuncovering information surrounding the commission ofthe violation andits agency.” (Haynie, supra, 26 Cal.4th at p. 1071, italics added.) : : ; : Third, theexemption shielding records of investigations from disclosure does not lapse when the investigation that prompted the records’ creation ends. Asthe high court stated in Williams with respect to the exemption for investigatory files, “It is noteworthy that nothing [in the statute’s language] purports to place a time limit on the exemption for investigatory files. Indeed,a file ‘compiled by.: . [a] police agency’or file ‘compiled -by any other state or local agency for... law enforcement . . . purposes’ continues to meetthat definition after the investigation has concluded. If the Legislature had wished to limit the exemptionto files that were ‘related to pending investigations,’ words to achievethat result were available. It is not the province of courts ‘to insert what has been omitted.’ ” (Williams, supra, 5 Cal.4th at p. 357.) The sameis true for records of investigations—they continueto be “[rJecords of . . . investigations conducted by . . . any necessary to prevent an agency from attempting to ‘shield a record from public disclosure, regardless ofits nature, simply by placing it in a file labelled “investigatory.” ’” (Haynie, supra, 26 Cal.4th at p. 1069, quoting Williams, at p. 355.) However, the “ ‘concrete and definite’ qualification to the exemption in section 6254(f) ‘relates only to information whichis not itself exempt from compelled disclosure, but claims exemption only as part of an investigatory file. Information independently exempt, such as “intelligence information”[or records of investigations at issue in Haynie], is not subject to the requirementthat it relate to a concrete and definite prospect of enforcement proceedings.’ ” (Haynie, at p. 1069, quoting American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal.3d 440,449, fn. 10.) state or local police agency” even after the investigation that prompted their creation ends. (§ 6254, subd.(f).) Finally, as alludedto in the foregoing quotation from Williams, the SupremeCourt has cautioned against courts placing nonstatutory limitations on the scope of section 6254, subdivision (f). As the court elaborated in Williams, referring to the required disclosures under section 6254, subdivisions (f)(1) and (f)(2), “These provisions for mandatory disclosure from law enforcement investigatory files represent the Legislature’s judgment, set out in exceptionally careful detail, about what items of information should be disclosed and to whom. Unless that judgmentruns afoul of the Constitution it is not our province to declare that the statutorily required disclosures are inadequateorthat the statutory exemption from disclosure is too broad. ... Requests for broaderdisclosure mustbe directed to the Legislature.” (Williams, supra, 5 Cal.4th at p. 361.) With these principles in mind, we turn to whether the plate scan data generated by the ALPR system constitute records of investigation under section 6254, subdivision(f). - 3. Plate Scan Data Generated by the ALPR System Are Records of Investigations Exemptfrom Disclosure Under Government Code Section 6254, Subdivision (f) Drawing on the guidance from Haynie and Williams, Real Parties contend the plate scans performed by the ALPR system are “investigations” within the meaning of section 6254, subdivision (f) because they are “conducted for the purpose ofuncovering information surrounding the commission of the violation [of law] andits agency.” (Haynie, supra, 26 Cal.4th at p. 1071.) Citing the declaration by LAPD’s subject matter expert, Real Parties stress that the ALPR system uses “character recognition software”to read license plate numbers and “almost instantly” checks those numbersagainsta list of “knownlicense plate[s]” associated with suspected crimes to “determine whether a vehicle may bestolen or otherwise associated with a crime.” The LASD’s declarant described the ALPR system’s function in similar terms, explaining that by utilizing the system to “automatically” check license plate scans against a “hotlist” of plates associated with suspected crimes, “[t]he [LASD] uses ALPRtechnologyto investigate specific crimes that involve motorvehicles, including butnotlimited to stolen motor vehicles, Amberalerts that identify a specific motor vehicle, warrants that relate to the ownerofa specific motorvehicle, and license plates of interest that relate to a specific investigation being conducted by [LASD]investigatory personnel.” Thus, RealParties contendthe license plate scan and almost instantaneous check againstthe hotlist constitutes an investigation under section 6254, subdivision (f), because the ALPR system is attempting to detect and uncovercriminalactivity. (Haynie, at p. 1071.) Expanding on the foregoing analysis, Real Parties argue the records generated by the ALPR system in performing the scans and hot list checks are records of investigations and, therefore, exempt from disclosure under section 6254, subdivision (f). As counsel for the LASD putit at the trial below, plate scan data generated by the ALPR system is necessarily a record of an investigation because “[t]hese records would not exist were the County or the City not investigating specific crimes in an attempt to locate persons who are suspected of having committed crimes.” We agree. In the Haynie court’s words, these records exist only because RealParties are trying to “uncover[ ] information surrounding the commissionof[a] violation [of law] and its agency.” (Haynie, supra, 26 Cal.4th at p. 1071.) As evidenced by the LAPD and LASDdeclarations, Real Parties have deployed the ALPR system toassist in law enforcement investigations involving an identified automobile’s license plate number. It follows that the records the ALPR system generates in the courseof attempting to detect and locate these automobilesare records of those investigations. The exemption under section 6254, subdivision(f) broadly shields these records from disclosure, subject to requirements pertaining to derivative information (see § 6254,subds. (f)(1) & (f)(2)) notat issue here. (See Williams, supra, 5 Cal.4th at pp. 353, 361; Haynie, at p. 1068.) Petitioners argue the ALPRplate scansare not investigations within the exemption’s purview. Unlike the cases that have applied the exemption, whichall “involve[d] requests for documents related to targeted investigations ofspecific criminal acts”(italics added), Petitioners argue the plate scans conducted by ALPR systems“are 10 not precipitated by any specific criminal investigation.” Rather, Petitioners assert, ALPR systems “photograph every license plate that comesinto view . . regardless of whether the carorits driveris linked to criminal activity.” They contend, ALPR systems “do not conduct investigations; they collect data.” We disagree. Contrary to Petitioners’ premise, the plate scans performed by the ALPR system are precipitated by specific criminal investigations—namely,the investigations that producedthe “hotlist” of license plate numbers associated with suspected crimes. As Real Parties’ experts both testified, the ALPR system’sprincipal purpose is to check license plates againstthe hot list to determine whethera vehicle is connected to a crime underinvestigation. In this way, the ALPR system replicates, albeit ona vastly larger scale, a type of investigation that officers routinely perform manually by visually reading a license plate and entering the plate number into a computer to determine whether a subject vehicle mightbe stolen or otherwise associated with a crime.” The fact that the ALPRsystem automates this process does not makeit any less an investigationto locate automobiles associated with specific suspected crimes. Nor doesthe fact that the ALPR system scans every license plate within view, “regardless of whetherthe carorits driveris linked to criminalactivity,” mean the system is not performing an investigation. As explained in Haynie,“[i]n exempting ‘{rlecords of . . . investigations conducted by’ law enforcementagencies, section 6254(f) does not distinguish between investigations to determineifa crime has been oris about to be committed andthose that are undertaken once criminal conductis apparent.” 5 Petitioners suggest the “collection of plate data”—1.e., the photographing and scanning of a license plate—canbe separated from “its later investigative uses”—i.e., the near instantaneouscheckagainstthe hotlist. This argument ignores that the plate scan is an integral part of the ALPR system’s process for locating automobilesonthe hotlist. Just as an officer cannot investigate whether an automobile has been associated with a suspected crime without visually observing and readingits license plate number, so too the ALPR system cannot determine whether a license plate numberis on the hotlist without scanning the plate. The collection ofplate data and hotlist check are part and parcel of the same investigative process—without the plate scan there can be no investigation. . 11 (Haynie, supra, 26 Cal.4th at p. 1070,fn.6,italics added.) Contrary to Petitioners’ implicit contention, our Supreme Court has repeatedly rejected the notionthat a “concrete and definite” prospect of enforcement must be shown to exempt records of investigations from disclosure. (/d. at pp. 1069-1071; see also Williams, supra, 5 Cal.4th at pp. 354- 356.) The ALPR system necessarily scans every car in view,just as humanofficers would in attemptingto identify a stolen vehicle. The fact that non-hotlist vehicles are necessarily checked does not mean there was no investigation. (See fn. 7, post.) Lastly, Petitioners emphasize the volumeandretention of plate scan data to highlight the differences between ALPRscans and moretraditional investigative techniques. In Petitioners’ view, because Real Parties’ ALPR systems each generate more than a million system-wide scans each week,andretain data from these scans for twoto five years, they “do not conductinvestigations; they collect data.” There are two problems with this argument. We havealready discussed the first— the ALPR systemsare not merely recording data; rather, Real Parties have deployed these systems primarily to detect and locate vehicles that have been connected to a suspected crime. The fact that ALPR technology generates substantially more records than an officer could generate in manually performing the same task does not mean the ALPR plate scansare not records of investigations.° 6 For instance,setting practical considerations aside, Real Parties could hypothetically deploy humanpatrol units to photograph every licenseplate they pass during a specific period on a specific route in order to later compare those photographs againsta hotlist of license plates associated with suspected crimes. Thoughthis tactic would generate a massive numberoflicense plate photographs, ofwhich very few could be expected to appear on the hotlist, no one could claim these photographs, and the associated time andlocation data loggedby the officers, were not records of the investigations these officers performed. The fact that the ALPR system automates this process and generates exponentially more records than officers could humanly produce has no bearing on whether those plate scans and associated data are records of . investigations under section6254, subdivision(f). 12 Second, though ALPRdatais retained for two to five years after the initial hot list check,this does notstrip an investigative record of its exempt status under section 6254, subdivision (f). As our Supreme Court explained in Williams, “nothing [in the statute’s language] purportsto place a time limit on the exemption for investigativefiles.” (Williams, supra, 5 Cal.4th at p. 357.) Records generated by the ALPR system for the purpose oflocating automobiles associated with a suspected crime, like the investigative files discussed in Williams, continue to meetthe applicable statutory definition evenafter the investigations for which they were created conclude—thatis, they continue to be “Irlecords of. . . investigations conducted by . . . any state or local police agency.” (§ 6254, subd..(f); see Williams,at p. 357.) Thus, for our purposes in interpreting the exemption,it is of no momentthat Real Parties retain the records in a database for years after the initial hot list check. To besure, the automated nature of the ALPR system, with its capacity to capture and record millions of plate scans throughout Los Angeles City and County,sets it apart from the traditional investigatory techniques that courts have consideredin earlier cases addressing the scopeofthe investigative records exemption. Butthat distinction is irrelevant to the question of whether the ALPR system’s core function is to “uncover ] information surrounding the commission ofthe violation [of law] and its agency”—.e., to investigate suspected crimes. (Haynie, supra, 26 Cal.4th at p. 1071 .). We conclude that it is, and that the records generated in the course of performingthat function are records ofthese investigations. The investigative records exemption applies and shields the plate scan data from disclosure under the CPRA. Because weconclude the exemption undersection 6254, subdivision (f) supports Real Parties’ decision to withhold the ALPR plate scan data, we do not address whether Real Parties also met their burden undersection 6255’s catchall exemption. 13 DISPOSITION Thepetition for writ of mandate is denied. Real Parties are entitled to recover their costs in this writ proceeding. CERTIFIED FOR PUBLICATION KITCHING,ActingP.J. We-concur: ALDRICH,J. EGERTON,J.” * article VI, section 6 of the California Constitution. 14 Judge ofthe Los Angeles Superior Court, assigned by the Chief Justice pursuantto Exhibit B Exhibit B A D V A N C E D S U R V E I L L A N C E A N D P R O T E C T I O N A u t o m a t i c L i c e n s e P l a t e R e c o g n i t i o n - A L P R ; Ba rs ]p e s t e le lr=) W i e s e i e c o m i n g f a e a e c e di re ct io n, a t . o v e r e e e Ca e B e y p h o t o g r a p h cl ue i E Ie ar py on s oy el s= ) : Se e - i m b e d s a s t a m p ” e e (e ri e p e w a ec o G e o a n d o t h e r d a t a , - c a n al so o b t a i n 4 F e e i i n F e i l e e e F o r e x a m p l e , p o o r li gh ti ng co nd it io ns , o r w h e n t h e ve hi cl e is a p p r o a c h i n g an di t ’ s h e a d l i g h t s m a k e it di ff ic ul t to r e a d . Exhibit C Exhibit C ALPR data supports that conclusion, ‘The parties all agree that once ficense plates are scanned by ALPRcameras,tlic plates are checkedagainst stolen vehicle databases. fd. So records af the plate s ms are records of attempts to investigate a crime, andthe ACLU has concededas much, ‘What seems to be the real problemforthe ACLU is the scope ofthe investigation. ‘The ACLUconflates the dictionary definition of “investigate,” inquiring into systematically, with the ACLU"s more intrusive label of“underinvestigation. .. without individualizedsuspicion.” See Pet. 33: That rhetoric advocates the dystopiantheoryof oppression advanced by the ACLUvery well; it also misleads. A personhas no privacy interest in his or her license plate. U.S: v. Diaz-Castaneda, 494 P.3d1146, 1151 (ih Cir. 2007). Whether that license plate is viewedby oneofficerona public street trying to determine whetherthe caris stolen, or 10 officers on 10 public streets, or 1000 officers on 1000 public streets, the license plate never becomes private, ‘That plate stil does not becomeprivate if an officer then Jooks at different plate nearby, or 10 nearby plates, or 1000 nearby plates, to determine if any of those cars are stolen. Logic provides no reason as to why the police are no longer investigating whether any ofthe cars are stolen if they have a machine read the plates onpublic streets rather than employ more humans to do 50. “Lhe legislature has, so far, only regulated ALPRdata with respect to the California Highway Patrol. Butit is clearthat the legislature believes the data to be a record of investigation protected {fromdisclosure to anyone whois not part of a law enforcement agency. See Cal. Veh. Code § 2413(b)-(c). 002 A. The untargeted nature and quantity oflicense plate scans does not changethe investigative nature of ALPR data. Petitioners argue that the data is not a record ofinvestigation becauselicense plate scans are untargeted—they occur “automatically and indiscriminately on each and every driver in Los Angeles whopasses within range of their cameras. ..whether or not those drivers are suspected ofwrongdoing.” (Petition, p. 29.) While it is correct that the ALPR scans are notspecifically targeted at persons suspected of criminal activity, the scansdo further law enforcement investigations. a : LAPD’s subject matter expert, Sergeant Dan Gomez, explained ALPR systems “use character recognition software, coupled with hardware, to interpret”license plates, capture their images, and check the data against — “knownlicenseplate lists” to “determine whether a vehicle may be stolen or otherwise associated with a crime.” (Ex. 9, pp. 409-410.) This determination is made “almost instantly.” (Bx. 9, p. 410, {(6.) Captureddata, which also includes “date, time, longitude and latitude, and information identifying the source ofthe number capture,” is stored to a storage device. (Ex. 9, p. 409, 92.) Stored ALPR data, which is a record ofall data capturedat the time ofthe initial plate scan (also referred to as a “read”), can later be queried by LAPD and LASD“forthe specific purpose of furthering an investigation.” (Ex. 9, p. 410, 7.) ALPRis an “extremely valuable investigative.tool. It has been instrumental indetecting and 004 Asstated in the declaration ofDaniel Gomez: “IfLAPD were required to turn over raw LPRdata, the value ofLPR asaninvestigative tool would be severely compromised. For instance, a criminal or potential criminal would be able to request all LPR data associated with the license | plate of his or her vehicle, thereby learning whether LAPD has evidence regarding his or her whereabouts on a particular date and time or near a particular location. This couldalsoresult in the potential destruction of — * evidence.In addition, the requestingindividual could use the data to try and identify patterns of a particular vehicle.” (Ex. 9, p. 410, 47,) at 410. Sergeant Gomezalso stated that ALPRhasbeen“instrumental in detecting and solving numerouscrimes andforcritical infrastructure protection” and provided specific examples ofhow ALPR data was used by LAPD investigators in armed robbery and homicide cases. (Ex. 9, p.410, 45.) In his declaration, John Gaw of LASDalso explained the importance ofALPR in criminal investigations and provided an example of how the data led to the identification and arrest of three murder suspects. (Ex. 11, p. 427, q 5.) This evidence, provided by both LAPD’s subject matter expert on ALPR,the Assistant Officer in Charge ofthe Department’s Tactical Technology Section who has presented in his expert capacity to various groups and organizations (Ex. 9, p. 409, 91), and LASD’s expert on ALPR, is compelling and uncontroverted. While it may not be “clear what harm 23, 005