AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA v. S.C. (CITY OF LOS ANGELES)Real Party in Interest, County of Los Angeles, Reply to Supplemental BriefCal.April 18, 2017LOS ANGELES COUNTY OFFICE 1100 EL CENTRO STREET SOUTH PASADENA, CA 91030 (626) 243-1100 | FAX (626) 243-1111 *ORANGE COUNTY OFFICE 750 THE CITY DRIVE SUITE 400 ORANGE, CA 8 (714) 823-4100 | FAX Gia 823-4101 SUPREME COURT SAN DIEGO COUNTY OFFICE F | L E D 2011 PALOMAR AIRPORT ROAD SUITE 207 CARLSBAD, CA 92011 (760) 274-2110 | FAX (760) 274-2111 NORTHERN CALIFORNIA OFFICE 1999 HARRISON STREET SUITE 1700 OAKLAND, CA 94612 (510) 844-5100 | FAX (510) 844-5101 INLAND EMPIRE OFFICE APR1 2017 Jorge Navarrete Clerk JAMES C. JARDIN jiardin@ccmslaw.com 10681 FOOTHILL BOULEVARD SUITE 260 . ; . RANCHO CUCAMONGA, CA 01730 Also Admitted in Arizona Deputy (909) 581-6100 | FAX (909) 581-6101 www, MSLAW. “Please respond to this office VIA OVERNIGHT DELIVERY April 17, 2017 Chief Justice and Associate Justices of the Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 Re: American Civil Liberties Union Foundation ofSouthern California, et al., v. Superior Court ofLos Angeles County, Case No. 8227106 Our File Number: 18623 Honorable Justices of the Supreme Court of California: Real Party in Interest County of Los Angeles submits the following reply to Petitioners Electronic Frontier Foundation and American Civil Liberties Union Foundation of Southern California’s supplementalbrief regarding the application of the catchall exemption under Government Codesection 6255. Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 2 Introduction Petitioners offer no evidence that the disclosure of ALPR data will provide any meaningful information that is intrinsic to ALPR data. Instead, they argue that law enforcement’s dual concerns for the integrity of police investigations and the privacy considerations of private citizens are outweighed by the public interest in disclosure of the “uses” of ALPR technology. This argument is unsupported by the record, which concerns only Petitioners’ request for ALPR data itself. The County and City already have disclosed documents regarding their policies, procedures and use of ALPR technology, and Petitioners did not challenge the relief they obtainedatthetrial level in that regard. Instead, Petitioners focus on ALPR data itself, which law enforcement agencies are prohibited from disclosing to the public as a matter of law. (Civil Code § 1798.90.55(b).) However, Petitioners identify no unique information to be gleaned from this data once it is suitably redacted, which is not already available from other less intrusive sources that do not implicate the privacy rights of individual citizens. Petitioners cannot meettheir burden underthe balancingtest. Substantial Evidence Supports the Trial Court’s Findings While the trial court’s weighing of the public policy interests for and against disclosure are subject to de novo review, the factual findings and inferences it draws based on substantial evidence are not. Instead, reviewing courts “view the evidence in Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 3 the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adheredto by this court.” (Jessup Farms v. Baldwin(1983) 33 Cal.3d 639, 660 (citations omitted).)Where different inferences may reasonably be drawn from the undisputed evidence, the “fact that it is possible to draw some inference other than that drawn bythetrier of fact is of no consequence.” (Jessup Farms, supra, 33 Cal. 3d at 660.) Deference to the trial court embraces both express and implied factual findings. (People ex rel. Dept. of Corrections v. Speedee Oil Change Systems, Inc.(1999)20 Cal.4" 1135, 1143.) Both parties have submitted admissible evidence regarding the content of ALPR data, which consists of visual and infrared spectrum photographsof license plates, an OCR “plate scan” generated from the infrared photograph, and time, date and location information specifying where and whenthe record was generated. Real Parties in Interest also provided admissible evidence regarding the manner in which ALPR data is gathered, either from patrol-car mounted units or fixed position cameras, along with the policies and procedures governing their use, including training information. Finally, Petitioners themselves provided admissible evidence that disclosure of ALPR data permits a requesting party to plot law enforcement patrol patterns over time, in literally minute detail. It is beyond dispute that there was substantial evidence supporting thetrial court’s findings. (Times Mirror Co. v. Superior Court (1991) 53 Cal. 3d 1325, 1336.) Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 4 Redacted Data Will Provide No More Information than is Currently Available The undisputed legal and factual record confirms that disclosure of ALPR data itself would subject private citizens to an unwarranted intrusion into their personal location information, while disclosing no more information than may be obtained through other means, such as requests for records regarding the acquisition, purchase and deployment of ALPR technology. Petitioners in fact already requested and receivedthis type of information from the County, as documented in the moving papers they submitted in the trial court. They nowhere argue that the information obtained from these records was inadequate, nor do they cite evidence to support any such inference. Instead, they argue for disclosure of the ALPR data itself without reference to other potential sources of this information, and subject to redactions so extensive that they would entirely frustrate any potential benefit of disclosure. There is no basis to order Real Parties to engage in such a fruitless endeavor. Petitioners first acknowledge that the underlying photographs need not be produced, and agree that license plate information identifying specific vehicles must be redacted to address privacy concerns. Real Parties agree, but with that admission, Petitioners have conceded that disclosure cannot further a public interest in determining whether any specific individuals are being unduly targeted on the basis of race, national origin or religious freedom. Petitioners’ fallback position - that license plate numbers could be assigned random, unique identifiers pursuant to an algorithm - goes far beyond Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 5 the effort required even for redaction, and moreovercalls for the generation of a record that does not currently exist. It also is unsupported by any evidenceestablishing how this might be accomplished. There is simply no evidentiary record for the Court to consider in this regard, beyondPetitioners’ admission that unredacted disclosure is impermissible. Petitioners next argue that the County could simply disclose the time, date and location of each plate scan, while separately disclosing how manytimes any particular license plate had been scanned. Once again, this suggestion calls for the generation of a record that does not currently exist, and is not based on any evidence. However, the bare time, date and location information for each plate scan does nothing more than confirm the communities in which ALPRtechnologyis being deployed, information which can be obtained by requests seeking records regarding the acquisition, purchase and deployment of ALPR technology. Real Parties already have produced such information. Finally, Petitioners suggest that the public’s “unsupported” interest in concealing law enforcement “patrol patterns” can be addressed by redacting the time and date information, leaving instead a “heat map” of all ALPR activity within a given time period. First and foremost, the suggestion that courts are not permitted to draw obvious inferences from undisputed admissible evidence is not well taken. The implications of a data trove confirming the precise location of ALPR units over time would be of obvious utility to criminal elements, and it requires no leap of faith to arrive at that obvious conclusion. More to the point, however, Petitioners once again fail to explain how this Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 6 information would be of any greater utility than records disclosing the acquisition, purchase and deployment ofALPR technology. Conclusion Once necessary redaction is applied, even within the parameters suggested by Petitioners, it is obvious that the disclosure of ALPR data provides no meaningful information to the public that is not otherwise available, while at the same timesetting a dangerous precedent regarding the circumstances under which public agencies may be required to disclose information that the Legislature has determined is confidential, personal information. (Sen. Rules Com., Off. Of Sen. Floor Analysis, final reading analysis of Sen. Bill No. 34 (2015-2016 Reg. Sess.) September 3, 2015, p. 4.) The balancing test under Government Code section 6255 does not support Petitioners’ position. Respectfully submitted, COLLINS COLLINS MUIR + STEWARTLLP Attorneys for Real Party in Interest County of Los Angeles Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 7 PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Orange. ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 750 The City Drive South, Suite 450, Orange, CA 92868. On this date, I served the foregoing document described as REPLY TO PETITIONER’S SUPPLEMENTAL LETTER BRIEF - CATCHALL EXEMPTIONontheinterested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST {X (BY MAIL)- I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Orange, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S.Postal Service on that same day with postage thereon fully prepaid at: Orange, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date ofdeposit for mailing in affidavit. J] @Y CERTIFIED MAIL)- I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Retum Receipt Requested to be placed in the United States Mail in South Pasadena/Orange/Carlsbad, California. L] BY EXPRESS MAIL ORANOTHER METHODOF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY L] (BY ELECTRONIC FILING AND/OR SERVICE)- serveda true copy, with all exhibits, electronically on designated recipients listed on the attached Service List: [X] FEDERAL EXPRESS- I caused the envelopeto be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. Chief Justice and Associate Justices of the Supreme Court of California 350 McAllister Street San Francisco, CA 94102-4797 Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 8 L] (BY FACSIMILE)- caused the above-described document(s) to be transmitted to the offices ofthe interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626) 243-1111 (So. Pasadena indicated all pages were transmitted. L] GY PERSONAL SERVICE)- I caused such envelope(s) to be delivered by handto the office(s) of the addressee(s). Executed on April 17, 2017at Orange, California. XX] (STATE)- I declare underpenalty ofperjury underthe lawsofthe State of California that the aboveis true and correct. pporter@ccmslaw.com Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 9 SERVICELIST ACLUv. Superior Court Los Angeles Superior Court Case No. BS143004 2™ Civ. Case No. B259392 Peter Bibring, Esq. 1 Copy ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 W.Eighth Street Los Angeles, CA 90017 (213) 977-9500 - FAX: (213) 977-5299 pbibring@aclu-sc.org Attorneysfor Petitioners, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA and ELECTRONIC FRONTIER FOUNDATION Jennifer Lynch, Esq. 1 Copy ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 (415) 436-9333 - FAX: (415) 436-9993 jlynch@eff.org Attorneys for Petitioners, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA and ELECTRONIC FRONTIER FOUNDATION Michael Feuer, City Attorney I Copy Carlos De La Guerra, Managing Assistant City Attorney Debra L. Gonzales, Supervising Assistant City Attorney Heather L. Aubry, Deputy City Attorney 200 North Main Street City Hall East, Room 800 Los Angeles, CA 90012 (213) 978-8393 - FAX: (213) 978-8787 Attorneys for Respondents, CITY OF LOS ANGELESand LOS ANGELES POLICE DEPARTMENT Clerk of the Los Angeles County Superior I Copy Court 111 North Hill St. Los Angeles, CA 90012 Hon.James C. Chalfant 1 Copy Los Angeles County Superior Court 111 North Hill St., Dept. 85 Los Angeles, CA 90012 Chief Justice and Associate Justices of the Supreme Court of California April 17, 2017 Page 10 Clerk of the Court of Appeal 1 copy 2™ Appellant District 300 South Spring Street Floor 2, North Tower Los Angeles, CA 90013-1213 Martin J. Mayer, Esq. 1 Copy Jones & Mayer 3777 N. HarborBlvd. Fullerton, CA 92835 Attorneys for Amicus Curiae California State Sheriff’s Association,et al. James R. Wheaton 1 Copy Cherokee D.M. Melton FIRST AMENDMENTPROJECT 1736 Franklin St. 9" Floor Oakland, CA 94612 Attorneys for Amicus Curiae Northern California Chapter of Society of Professional Journalists Katielynn Boyd Townsend 1 Copy Reporters Committee for Freedom of the Press 1156 15" Street NW,Suite 1250 Washington, DC 20005 Attorneys for Amici Curiae Reporters Committee for Freedom of the Press,et al. Michael G. Colantuono 1 copy Michael R. Cobden Colantuono, Highsmight & Whatley, PC 420 Sierra College Drive, Suite 140 Grass Valley, CA 95945-5091 Attorneys for Amici Curiae Leagueof California Cities et al. Alan Butler 1 copy Electronic Privacy Information Center 1718 Connecticut Avenue, NW,Suite 200 Washington, DC 20009 Attorneys for Amici Curiae Electronic Privacy Information Center
