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

Petitioners’ Response to Amicus Curiae Brief

Cal.June 17, 2016

SUPREME COURT COPY “FILED” JN THE SUPREME COURT PF i k OF THE STATE OF CALIFORNIA Frank A. McGuire Cler' Deputy -- JUN 17 2016 AMERICANCIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA and ELECTRONIC FRONTIER FOUNDATION, FILED WITH PERMISSION Petitioners, V. SUPERIOR COURT FOR THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES, Respondent, COUNTY OF LOS ANGELES,and the LOS ANGELES COUNTY SHERIJFF’S DEPARTMENT,and the CITY OF LOS ANGELES,and the LOS ANGELES POLICE DEPARTMENT, Real Parties in Interest. After a Decision by the Court of Appeal, Second Appellate District, Division Three, Case No. B259392 Los Angeles County Superior Court, Case No. BS143004 (Hon. James C. Chalfant) RESPONSE TO AMICUS BRIEF OF THE LEAGUEOF — CALIFORNIA CITIES AND CALIFORNIA STATE ASSOCIATION OF COUNTIES PETER BIBRING (SBN 223981) *JENNIFER LYNCH (SBN 240701) pbibring@aclusocal.org jlynch@etf.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. 8227106 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA AMERICAN CIVIL 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 of Appeal, Second Appellate District, Division Three, Case No. B259392 Los Angeles County Superior Court, Case No. BS143004 (Hon. James C. Chalfant) RESPONSE TO AMICUS BRIEF OF THE LEAGUE OF CALIFORNIA CITIES AND CALIFORNIA STATE ASSOCIATION OF COUNTIES 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 EddyStreet 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 INTRODUCTION......occcecccecccceceecceeeeneeeeeeeeeneeeeseesseeeseeceseeceseeesesenseesneseanenes 1 ARGUMENT.00.....ccccccecccccsccesseeeceeseeecceceseeeeeseneeseeesneseageseeeeessasaesessieesneseaseegs 1 Senate Bill 34 Does Not Preclude Disclosure ofALPR Data Underthe Public Records Act ........ccecccccccceesceeesnneecesesaseeseeeeeseeeenenneeeeeeessssesseesnas 1 CONCLUSION..0....cccccccceseeseceeeeeeteeeeeeeeeesensceseeseeeeseseseseseneeeeeeesesenenseacneee 3 CERTIFICATE OF WORD COUNTooo... eceeeceteeeeetene estes seneerseneeneees 5 TABLE OF AUTHORITIES Cases W. Sec. Bank v. Super. Ct. (1997) 15 Cal. 4th 232 ooo ccccccccccseccsseecesseeeeeceeeeceeesaeeeaeeeeeesseeeeseesesenseeees 1,2,3 Statutes Government Code § 6254(f).......ccceececcccesseneeesseeeesseeenseeeeeeseeeteenseeesaaese 1,3 Government Code § 6255.0... ceceeceeesseeeccceeeeceseneeresneneerssneasaessaneeteneeeeessenaees 3 Constitutional Provisions Const., Art. 1, § 3 ccccccccccseceeenceeseeenceneeeeeeesseeeseseeeetseeteeeseeeeresenspeseeeeeeeee 3 Other Authorities Analyses for S.B. 34.0... eeceeceeseeseceseeeseceeessceeseneeeseesacessnesnaaaaeesesseensseaeeereneeeea 3 Assembly Committee on Privacy and ConsumerProtection, SB 34 Bill Analysis, 4 (July 6, 2015)...ceeeeceesseecsencecesersetcesenseeeeeeersaeeeeeesesenseeteaes 3 il INTRODUCTION Petitioners file this brief responding narrowly to the argumentsin the amicusbrief filed by the League of California Cities and the California State Association of Counties (collectively the “League”) regarding the impacton this case of the passage of Senate Bill 34.' SB 34 does not and wasnot intended to create a new exemption from the Public Records Act for ALPRdata, nor, contrary to the League’s position, was it intended to buttress any existing PRA exemption. ARGUMENT Senate Bill 34 Does Not Preclude Disclosure of ALPR Data Underthe Public Records Act The League appears to concede that SB 34 cannot lawfully have created a new exemption to the Public Records Act for ALPR data because it lacked the findings to justify a new exemption, as required by Cal. Const., Art. I, § 3(b)(2). (See League Br.at p. 21 (citing Pet. Reply at p. 35).) Nevertheless, it argues SB 34’s omission of findings somehow demonstrates that the Legislature understood that existing law—specifically Government Code § 6254(f)—already rendered ALPR data exempt from the PRA.(League Br. at p. 22.) The Leagueis incorrect. Evenin the clearest circumstances,“a legislative declaration of an existing statute’s meaningis neither binding nor conclusive in construing the statute.” (W. Sec. Bank v. Super. Ct. (1997) 15 Cal. 4th 232, 244.) As this Court has noted, “there is little logic and some incongruity in the notion that one Legislature may speak authoritatively on the intent of an earlier ' Petitioners have reviewedthe briefs of other amici and respectfully believe that they require no additional responsein briefing. Legislature’s enactment when a gulf of decades separates the two bodies.” Ud.) The legislative history of SB 34 provides no reason to believe that the Legislature viewed ALPR data as already exempt under the Public Records Act, muchless that the data were exempt specifically under the investigative records exemptionat issue here. The Senate Floor Analysis provided as Exhibit B to the League’s Motion for Judicial Notice, states that the bill would “not prevent the authorized sharing of data.” (League Ex. B at p. 5 (emphasis added).) To the extent that the PRA “authorizes” the sharing of public records such as ALPR data, SB 34 1s not to the contrary. The Senate Floor Analysis further undermines the League’s argument by discussing “existing law”relevant to the bill, including breach notification laws and lawsregulating state transportation agencies, without a single mention of the PRA orits application to ALPR data. (/d. at p. 2.) Similarly, the “Purpose” section of the Senate Floor Analysis states “the main focus ofthis bill is to put in place regulations for businesses and agencies, which currently do not have any policies regarding the use of ALPRdata” and notesthat “this bill is necessary to institute reasonable usage and privacy standards for the operation of ALPR systems.” (/d. at p. 4.) The bill accomplished this by requiring ALPR operators to “implement and maintain a usage and privacy policy,” (/d. at p. 3), not by restricting public access to the data pursuant to the PRA. The Assembly Committee on Privacy and ConsumerProtection’s analysis is in accord with the Senate Floor Analysis. It states the “purpose” of thebill is “to bring greater transparency to the use of ALPR systems by requiring operators and end-users, as defined, to adopt an ALPR usage and privacy policy, and also requiring public agencies to hold a public hearing before utilizing an ALPR system.”” The Assembly Committee analysis does not mentionrestricting public access to ALPR data, which would not align with the goal of bringing greater transparency to the use ofALPR systems. Andsimilar to the Senate Floor Analysis, the Assembly Privacy Committee does not mention the PRA in its discussion of “existing law” relevantto the bill.” CONCLUSION This Court has concludedthat, “{u]ltimately, the interpretation of a statute is an exercise ofthe judicial power the Constitution assigns to the courts.” (W. Sec. Bank, 15 Cal. 4th at p. 244.) Given that (1) the goal of the PRA is to promote public disclosure of governmentrecords; (2) SB 34 lacks explicit findings required by the constitution to exempt records from the PRA; (3) SB 34’s legislative history never references the PRA; and (4) the goal of SB 34 is “to bring greater transparency to the use of ALPR systems,” a correct interpretation of the statute should find that SB 34 does not preclude access to ALPR data sought by Petitioners.’ ? Assembly Committee on Privacy and ConsumerProtection, SB 34 Bill Analysis, 4 (Suly 6, 2015) (emphasis added) available at https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=2015201 60SB34#. 3 Id. None of the other Senate or Assembly analyses mentions the Public Records Act, muchless §6254(f), the specific exemptionat issue here. See generally Bill Analysesfor S.B. 34, available at https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=2015201 60SB34. * Even if the Legislature did intend for SB 34to limit the disclosure ofALPR data, there is no support for the League’s argumentthat the legislature intended the bill would support its exemption as an investigative record under § 6254(f). As the League recognizes, SB 34’s legislative history clearly shows a concern with privacy, (see League Br.at p. 22), which would be properly addressed under Government Code § 6255, rather than § 6254(f). Dated: June 16, 2016 Peter Bibring Catherine A. Wagner AMERICANCIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA Attorneys for Petitioners CERTIFICATE OF WORD COUNT I certify pursuant to California Rules of Court 8.204 and 8.504(d) that this Response to Amicus Brief of the League of California Cities and California State Association of Counties is proportionally spaced, has a typeface of 13 points or more, contains 883 words, excluding the cover, the tables, the signature block, verification, and this certificate, whichis less than the total number of words permitted by the Rules of Court. Counselrelies on the word count of the Microsoft Word word- oy etitioners processing program usedto preparethis brief. Dated: June 16, 2016 CERTIFICATE OF SERVICE I, Madeleine Mulkern, do hereby affirm I am employed in the County of San Francisco, State of California. | am over the age of 18 years and nota party to the within action. My businessaddress is 815 Eddy Street, San Francisco, California 94109. I am employed in the office of a memberofthe bar ofthis court at whose direction the service was made. On June 16, 2015, I served the foregoing document: Response to AmicusBrief of the League of California Cities and California State Association of Counties on theparties in this action by placing a true and correct copy of each documentthereof, enclosedin a sealed envelope on the persons below as follows: Court of Appeal 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 Frederick Bennett Superior Court of Los Angeles County 111 North Hill Street, Room 546 Los Angeles, CA 90012 Heather L. Aubry, Deputy City Attorney 200 North Main Street 800 City Hall East Los Angeles, CA 90012 Attorneys for Real Parties in Interest: City of Los Angeles and Los Angeles Police Department 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 ofLos Angeles Martin J. Mayer James Touchstone Deborah Pernice-Knefel JONES & MAYER . 377 No. Harbor Boulevard Fullerton, CA 92835 Attorneys for Amici Curiae: California State Sheriffs’ Association, the California Police Chiefs’ Association, and the California Peace Officers’ Association . Michael G. Colantuono Michael R. Cobden COLANTUONO, HIGHSMITH & WAHTELY,PC 420 Sierra College Dr., Suite 140 Grass Valley, CA 959-45-5091 Attorneys for Amici Curiae: League of Califo'nia Cities and California State Association of Counties - Katie Townsend : THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15" St. NW,Suite 1250 -Washington, DC 20005 Attorneys for Amici Curiae: Reporters Committee for Freedom of the Press, American Society ofNews Editors, Association of Alternative 7 Newmedia, California Newspaper Publishers Association, California Aware, The Center for Investigative Reporting, First Amendment Coalition, Los Angeles Times Communications LLC, The McClatchy Company, The National Press Club, National Press Photographers Association, Online NewsAssociation Alan Butler ELECTRONIC PRIVACY INFORMATION CENTER 1718 Connecticut Avenue, NW,Suite 200 Washington, DC 20009 Attorneys for Amicus Curiae: Electronic Privacy Information Center James R. Wheaton Cherokee D.M. Melton FIRST AMENDMENT PROJECT 1736 Franklin Street, 9" Floor Oakland, CA 94612 Attorneys for Amicus Curiae: Northern Chapter of Society of Professional Journalists 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 executed on June 16, 2016. By Madeleine Mulkern