AAN was one of 13 organization who jointly filed an amicus brief with the California Supreme Court in a case that will determine the breadth of access to data collected by California law enforcement agencies via automatic license plate readers (APLR).  The American Civil Liberties Union and Electronic Frontier Foundation jointly sued Los Angeles County, the Los Angeles Police Department, and the City of Los Angeles after a request for APLR data was denied.  The California Supreme Court is hearing the case after an intermediate Court of Appeals ruled in favor of the government, allowing this data to be withheld in full under the state’s  law enforcement investigatory records exemption.

Our brief was drafted by the Reporters Committee for Freedom of the Press.   It argues that the court of appeals decision that the California Public Records Act exemption for law enforcement records will have a broad impact on journalists.  This broad decision goes beyond the intent of California voters who, in 2004, enshrined the public’s right of access in the state constitution.  Pursuant to that constitutional provision, any exemptions must be narrowly construed.   That’s clearly not the application in this case, where the court of appeals held that, because the  APLR system cross checks license plate data against reported stolen cars, all collected data is related to an active law enforcement investigation. Under that theory, for instance, any preventative law enforcement efforts (like DUI checkpoints) could be related to an ongoing law enforcement investigation. It further argues that the court of appeals decision is not only wrong as a matter of broad principle but inconsistent with earlier decisions of the California Supreme Court.  The brief cites several cases in which the California Supreme Court and Courts of Appeal have rejected a broad reading of what constitutes a law enforcement record and instead focused on limited, active investigations.  Finally, as a policy matter, a broad interpretation of the term “law enforcement record” would impair the ability of the press to keep the public informed.

The brief explains how reporters rely on public records laws to gather information on matters of public concern.  This is especially true with regard to datasets, which are used to identify trends and systemic issues.  Nowhere is this more important than with regard to law enforcement. The brief, in fact, identifies stories from around the country which have relied on use of APLR data to show how police are able to track individual drivers (whether or not they are suspected of committing crimes) and to show how police are more likely to surveil drivers in low income areas.  The brief also identifies non-APLR stories which have brought about necessary change in the activities of law enforcement. It is possible that none of these would have been possible if the court of appeals’ narrow interpretation of law enforcement records was in place, as it would have prevented the systematic review of other law enforcement records that was inherent to the story.

It is important to note that we are not arguing for or against the collection of information via automated license plate readers.  Nor are we arguing that all information collected by these automated license plate readers be released to the public.  We understand that certain information must be withheld – under existing exemptions relating to personal privacy.  We are arguing that California should not engage in blanket application of the state’s law enforcement investigatory records exemption because that will result in too much withholding – and because much of the information collected actually has nothing to do with an ongoing law enforcement investigation (in fact, many of the people whose information has been collected have not committed any crime, a fact which should be revealed).   In fact, our argument is applicable to many different types of records both in California and nationwide, given that we are arguing that exemptions for law enforcement records should only be applied in a “targeted investigation” situation, not broadly applied to automatically collected data.