State Supreme Court limits investigatory record exemption

For the first time in recent memory, the California Supreme Court has limited the seemingly endless reach of the investigatory record exemption in ­­­the California Public Records Act, in a dispute over disclosure of automated license plate recognition (ALPR) data.

The case, ACLU v. Superior Court, arose when the ACLU sought the ALPR data, gathered by fixed and roaming cameras that collect the license plate number of any car that passes through the camera’s range. The Los Angeles Police Department and the Los Angeles Sheriff’s Department denied disclosure based on the investigatory record exemption and the public interest balancing test.

In a unanimous decision, the court rejected law enforcement’s interpretation that this indiscriminate collection of data qualified as an “investigation.”
Police agencies across the state regularly label records in their custody as “investigatory,” which permits the agency to withhold the records wholesale. In ruling that the investigatory exemption did not apply to the mass data collection conducted in the ALPR system, the court distinguished this data from a typical investigation “because the scans are not conducted as part of a targeted inquiry into any particular crime or crimes.”

The court further clarified the policy reasons for protecting investigatory materials from mandatory disclosure, which it said do not apply to ALPR data: “[T]he animating concern behind the records of investigations exemption appears to be that a record of investigation reveals (and, thus, might deter) certain choices that should be kept confidential — an informant’s choice to come forward, an investigator’s choice to focus on particular individuals, the choice of certain investigatory methods.”

It concluded that these concerns are not implicated by the disclosure of the ALPR data. To the contrary, the court said adopting law enforcement’s broad definition “would inflict a far greater blow to the public interest” than exempting more traditional, targeted investigatory records.

After dealing with the investigatory issue, the court turned to the public interest balancing test which it found did justify nondisclosure of the raw data set, due to the amount of information it would expose. The court remanded the case to the trial court for a further determination on if and how the data could be anonymized to protect individual privacy, including the “feasibility of, and interests implicated by, methods of anonymization.”

CNPA participated in an amicus brief filed in support of the ACLU in the case.