Automatic License Reader Data Not ‘Personal’

The Fairfax County Police Department’s storage of data collected by an Automatic License Plate Reader (ALPR) for 364 days does not violate the Government Data Collection and Dissemination Practices Act because a license plate is not person­al information; the Fairfax Circuit Court says a license plate number is not person­al information and the court denies an in­junction or writ of mandamus to prohibit future violations of the Act.

ALPR technology

Since at least 2010, the police depart­ment has used ALPR technology, in the form of specialized cameras mounted on either a police cruiser or a stationary structure, to capture and maintain a da­tabase of the captured individual license plate numbers. The ALPR records the date, time and location of each capture. After an ALPR camera captures an image of a license plate, optical character recog­nition technology converts the image into text. FCPD’s ALPRs capture license plates at a rate of up to 3,600 plates per minute. The ALPR technology automatically cross­checks captured license plates against a list of known license plates associated with suspected criminal activity – the Vir­ginia State Police “hot list.” Also called “ac­tive use,” plaintiff does not challenge the propriety of the use of the hot list.

The state police publishes the hot list twice daily, and the information is avail­able to authorized law enforcement per­sonnel via a secure website. Irrespective of whether a “hit” occurs, the police depar­ment stores the captured license plate in­formation in a database for 364 days. After 364 days, the data is purged from the da­tabase. This is called “passive use.” Plain­tiff’s complaint exclusively addresses this passive use.

FOIA request

On May 7, 2014, plaintiff, a Fairfax County resident, submitted a request to the police department pursuant to the Data Collection Act and the Virginia Free­dom of Information Act, for all documents in the department’s custody pertaining to his license plate number “ADDCAR.” On May 15, 2014, the department produced documentation from two instances where a department ALPR camera captured an image of the “ADDCAR” license plate. The first capture occurred on April 26, 2014, and the second, on May 11, 2014. The only information stored as to the subject license plate was the photographs and the date, time and GPS coordinates of the lo­cations where the photos were captured.

I conclude that a license plate number should not be included in the definition of “personal information” under Va. Code § 2.2-3801.

All the information included in the stat­ute refers to an individual person. In the case of a social security number, the in­formation leads directly to an individual. A license plate number leads directly to a motor vehicle. By referring to other data­bases the license plate number can lead the researcher to the owner of the vehicle and nothing more. A license plate does not tell the researcher where the person is, what the person is doing or anything else about the person.

I could find no Virginia case that ad­dresses the issue of whether a license plate is personal information. I could not find a case from any American jurisdic­tion – state or federal – that addresses the specific question of whether a license plate is personal information. The cases I have found discuss license plate numbers, but always in a different context from our spe­cific question.

There can be no privacy interest in in­formation that is publicly disclosed, even if such disclosure is required by law. When a law enforcement officer runs a check of a license plate, no search has occurred for Fourth Amendment purposes. It is unlike­ly that information that does not have a privacy interest could be classified as per­sonal information.

Summary judgment for defendants.

Neal v. Fairfax County Police Dep’t (Smith) No. CL 2015-5902, Nov. 18, 2016; Fairfax Cir.Ct. Edward S. Rosenthal for plaintiff; Kimberly P. Baucom, Ass’t Coun­ty Att’y. VLW 016-8-123, 6 pp.