1 U1 13. (311 Bar No. 151-166 .121mc5.(ii1pin a 11001). 11:1an. 229195 BEST 131581" 1.1.1? 655 West Brazidua}. 15111 1 loor San Diego. California 02101 'l?elephonc: (619) 525-1300 Facsimile: (619?) 233-6118 .101 KIRK. Bar No. 149667 811111.13Y Bur M). 260094 811011)}. 1uckcrasaimagorg 1311-110 ~10] 1381mm. Suite 800 San Diego. (.?ulilhrniu 921111 (611)) (399?1900 Facsimilc: (619) 699-1005 Respondent Sun Diego Assuciulion \11?1 ([1111 1101113 1' I Clerk r21 Coml 3/ .- 161.11% 20-15 Cinl 11:. Sup-moi Cvurl MAY 11 2015 mug- By: Browder. Depu: ,1 Sl'l?l'RlOR COL R1 01? 01' 01? Dll-LiO Petitionur. ('Llsc TE ENT 0 DECISION V. Action SAN 1311300 ASSOFI 110\ 01' I S. and 1 SW1. 11"91-111? I LAW OFFICES OF BEST BEST 5 KRIEGER LLP 655 WEST BROADWAY. 5TH FLOOR SAN DIEGO, CALIFORNIA accordance with Code of_Civil Procedure section 632 and California Rule of Court 3.1590, and this Court?s February ?27, 2015 minute order, Respondent San Diego Association of Governments (SANDAG) has prepared the following Proposed Statement of Decision.l I. FACTUAL AND BACKGROUND Petitioner Michael RobertEs?on (Petitioner) made a request for all documents in respondent possessiofri relating to his California license plate. He specifically requested scans of his license piate recorded by various law enforcement agencies using license plate readers (LPR). SA-LNDAG is the administrator for the Automated Regional Justice Information System which maintains LPR records and data for members. SANDAG asserted the documents are exempt under the California Public Records Act (CPRA). Petitioner ?led a ?Veri?ed Petition for Alternate and Peremptory Writ of Mandate, for Declaratory and Injunctive Relief re Access to Public Records and Information? (?Petition?). In his Petition, Petitioner asserts that actions violated the California Constitution and the CPRA. Petition, 1] 17. 11. DISCUSSION A. The Exemption for Records of Investigation Among other things, Government Code section 6254, subdivision exempts records of investigations conducted by a state or local agency for law enforcement purposes. The exemption for records of investigations encompasses ?only those investigations undertaken for the purpose of determining'whether a violation of law may occur or has occurred. If a violation or potential violation is detected, the exemption also extends to records of investigations conducted for the purpose of uncovering information surrounding the commission of the violation and its agency.? Haynr?e v: Superior Court (2001) 26 Cal.4th 106], 107]. The Petitioner submitted a list of ?contested issues" that he requested the Court address in its statement of decision. The purpose of a statement of decision, howeVer, is to provide the factual and legal bases for the Court?s decision as to each of the principal controvcrted issues of the case.? Marquiz v. City of Emeryw'lle (2000) 79 Cal.App.4th 106, 124. A statement of decision ?need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision." 1d. at I 124-] 125. 60932.00] - PROPOSED STATEMENT or DECISION LAW OFFICES OF BEST BEETS KRIEGER LLP 655 WEST BROADWAY. ISTH FLOOR SAN DIEGO, CALIFORNIA 92 IOI owmquAmw mxlONM-thHomonsJoxm-bwm? a ll exemption applies to investigations ?to determine if a crime has been or is about to be aken once criminal conduct is apparent.? 1d. at p. 1070, fn. l' i. The LPR system uses cameras to capture the image of a vehicle?s license plate. . ll . Scanlon Decl., 1] 7. The Image is Converted mm a text ?le and compared against records from committed and those that are uncle 6. the California Department of Juistice for stolen or wanted vehicles, vehicles involved in AMBER alerts and missing children, vehicles owned by wanted subjects and other law- enforcement related criteria. 1d. at 1] 8; Seward Decl. 1] 3; Froomin Decl. 1] 6; Carter Decl. 1] 8; Aguigui Decl. 1]1] 3 and 6; Stainbrook Decl. 1] 6. The LPR data can also be used to monitor a sex offender?s presence near a. school. Carter Decl. 1] 9d. The system noti?es law enforcement of?cers if a match is found. 10'. It has also been used to exonerate suspects. Froomin Decl. 1] 7. As explained by Police Chief Jim Redman, ?The LPR system is no different than having an of?cer collecting the license plate numbers while on patrol, and manually entering the data into the of?cer?s vehicle mounted computer or, as was the method as recently as 15 years ago, handwritten in notepads or the pages of binders. It also avoids the necessity of constantly comparing license plates with dispatch at the time of a vehicle I stop or while driving the patrol vehicle."? Redman Decl., 1] 5. The LPR system is used to ?locate evidence relating to crimes already committed, to locate SUSpects, and to stop any ongoing criminal activity.? Seward Decl., 1] 4. ReSpondent has shown that the data produced and analyzed by the LPR system is being used in an investigative capacity in furtherance of law enforcement purposes. Furthermore, similar to Haynie, the disclosure of these records would impair investigations and facilitate criminal activity. Haynie v. Superior Court, supra, 26 Cal .4th at p. 1071 (suspects might ?ee when alerted to the investigation). Giving petitioner access to his LPR data would allow him antd others in the public to identify where the stationary LPR cameras are mounted. The ability to identify locations of cameras would also identify the absence of cameras on speci?c routes, which suspects involved in ongoing criminal activity may use to avoid detection. See American Civil Liberties Union Foundation v. Deukmejian - 2 - PROPOSED STATEMENT OF DECISION LAW OFHCES OF BEST BESTS KRIEGER LLP 655 WEST BROADWAY. ISTH FLOOR SAN DIEGO. CALIFORNIA 92 "-30th Fl (I982) 32 Cal.3d 440, 451 (expreiising concern that investigative information could be used for criminal purposes); Myers DecIl.E 7, 8. In addition, the cameras are sometimes mounted on vehicles. Scanlon Dec]., 1] 7. liioviding LPR data would alert suspects to areas where the vehicle-mounted cameras are utilized. In addition, the LPR data could be used to stalk or perpetrate crimes against others. Seward Dec]. 1] 5; Aguigui Dec]. 1} 8; Myers Dec. 1i 8; Benjamin Dec]. 1] 3; see also Gov. Code 6254.5 (?Notwithstanding any other provisions of the law, whenever a state or local agency discloses a public record which is otherwise exempt from this chapter, to any member or the public, this disclosure shall constitute a waiver of the exemptions specified in Sections 6254, 6254.7, or other similar provisions of The Court ?nds the LPR records sought by petitioner are records of investigation pursuant to section 6254(t). i B. The Catch-All Exemption SANDAG argues the records are also exempt pursuant to the catch-all provision set forth in section 6255, which allows a government agency to withhold records if it can demonstrate that ?on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record." In evaluating the public interest in disclosure, ?courts must look not only to the nature of the information requested, but also how directly the disclosure of that information contributes to the public?s understanding of goVei'nment.? Los Angeles Uni?ed School District v. Superior Court (2014) 228 Cal.App.4th 222,242. Petitioner has not articulated how his LPR data will contribute to the public?s understanding of the government. On the other hand, disclosure of the LPR data will be detrimental to the public?s interest. As explained above, the data is collected and used to investigate criminal-activity, and disclosure of that information can be used to hinder law enforcement?s efforts to identify and apprehend criminals and to protect 'victims of criminal activity. .The Court ?nds the public interest in nondisclosure clearly outweighs the public interest in disclosure. 60932.00l07t964057l.4 . - 3 - PROPOSED STATEMENT OF DECISION r. I I u?Ap-ou?av?Ao?n LAW OFFICES OF 5 KRIEGER LLP 655 BROADWAY. ISTH FLOOR SAN DIEGO. CALIFORNIA 92 IOI o?A 0\ J: LnNon=C0ntributing Agencies Petitioner argues there are potentially interested agencies, and Respondent submitted declarations from ten agencies. Petitioner contends that at a minimum the Court should order SANDAG to provide his personal. information obtained, if any, from the agencies who have not submitted objections. First, whileF there are many ?ex-of?cio agencies? that have access to ARJIS, there are only ten law enforcement ARJIS-member agencies that contribute data to ARJIS. Scanlon Decl. 4 Ex. A [Joint Powers Agreement]. The Joint Powers Agreement expressly requires SANDAG to ire-Eat the LPR records as con?dential and prohibits ARJIS from disclosing ?electronic data or other intellectual pr0perty for which it is a custodian to third in parties without the approval of the entity that owns the property.? Scanlon Decl., Ex. A [Joint Powers Agreement, Sec. - No further individual response by the individual law enforcement agencies is required, though the declarations submitted strongly af?rm the con?dentiality of the LPR records: Second, Petitioner did not name or serve the agencies he now seeks to assert waiver against. Waiver is inappropriate when those agencies are not parties to the action. See Tracy Press, Inc. v. Superior Court (2008)-164 Cal.App.4th 1290, 1300. Accordingly, Petitioner?s alternative request is denied. D. The Information Practices Act In his supplemental Petitioner argues the information must be disclosed pursuant to the Information Practices Act of 1977 (Civil Code 1798 et seq.). The Petition is based on a violation of the not the Information Practices Act. The Petition makes no mention of the Information Practices; Act as a basis for relief. See Marvin v. Marvin (1981) 122 Cal.App.3d 871, 875 (?special ?ndings of fact and conclusions of law in support of this award must be disregarded as not being within the issues framed by the pleadings?). In any event, the Information Practices Act applies to state agencies. Civ. Code, 1798.3, subd. It speci?cally excludes local agencies as de?ned in the CPRA. 1d. at subd. (?The term ?agency? means every state office, of?cer, department, division, bureau, board, commission, or other state agency, except that the term agency shall n_ot include: A . - 4 .. PROPOSED STATEMENT OF DECISION cum- CFWCEF: LAlt [35:57 nF?tT it. Kali" 23TH upon-ma 92 IC EST 5 GA nwz- 5,35lneul Eugene). as de?ned in subdivision tu) of Section 6252 of the (lmernment Code") As local agency. SANDAG is not required to comply with the lnlkirmalion Practices Act. (See Petition. 4: "Respondent SANDAG is a local agency within the meaning 01' Government Code 6352((ljtf?) (J'met'nment Code section 6252(d) de?nes a "public agency." under the "am state m- loeti] agency" "local agency" is, in turn. delined in section 6352. subdix lblUH Such local agencies tire- exempt li'um the li'tl'nrmtitiun Practices Ael. Code? Ill? CONCLUSION l'he Petition. lilecl by Michael Robertson, is denied. IS SO ORDERED. Dated: 7 . I ?DGli Ol?~ Tl ll? (?01 NET KATHERINE A. BACAL Hit)?? It IItTOrth a" PROPUSI l) \ll (ll l)l ('l\ltt\ . JAMES B. GILPIN, Bar No. 151466 James.Gilpin@bbk1aw.com KIMBERLY s. HOOD, Bar No. 229195 Kimberly.Hood@bbk1aw.com Best Best Krieger LLP 655 West Broadway, 15th Floor San Diego, California 92101 Telephone: (619) 525-1300 Facsimile: (619) 233-6118 JOHN F. KIRK, Bar No. 149667 SHELBY TUCKER, Bar No. 260094 Shelby.Tucker@sandag.org SAN DIEGO ASSOCIATION OF 401 Street, Suite 800 San Diego, California 92101 Telephone: (619) 699-1900 Facsimile: (619) 699-1905 Attorneys for ReSpondent EXEMPT ROM FILING FEES PER GOVERNMENT CODE 6103 . I 35 18m 0' the Runer?or ecu[010 2" GOVERNMENTS San Diego Association of Governments SUPERIOR COURT OF THE STATE OF CALIFORNIA MICHAEL ROBERTSON, Petitioner, V. SAN DIEGO ASSOCIATION OF I GOVERNMENTS, and DOES 1 THROUGH 100, INCLUSIVE, Respondents. COUNTY OF SAN DIEGO Case No. 37-2013-00051297-CU-WM-CTL PROOF OF SERVICE Action Filed: May 31, 2013 611932.001 0718342285. 1 PROOF OF SERVICE LAW OFFICES OF BEST BEST 8- KRIEGER LLP 500 CAPITOL MALL. SUITE 1700 SACRAMENTO, CALIFORNIA 95814 (fry T. r? I: ?01 g. moon or SERVICE At the time of service I was over 18 years of age and not a party to this action. My business address is 500 Capitol Mall, Suite 1700, Sacramento, California 95814. On March 30, 2015, I served the following document(s): PROPOSED STATEMENT OF and PROPOSED JUDGMENT By fax transmission. Based on an agreement of the parties to accept service by fax tranSmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed below (specify one): Deposited the sealed enveIOpe with the United States Postal Service, with the postage fully prepaid. Placed the envelope for? collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage ?illy prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Sacramento, California. By personal service. At I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's of?ce by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the of?ce. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. By messenger service. I served the documents by placing them in an enveIOpe or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached. -1- PROOF OF SERVICE LAW OFFICES OF BEST BEST 8. KRIEGER LLP 500 CAPITOL MALL. SUITE 1700 SACRAMENTO. CALIFORNIA 95814 \Dmummhm overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an of?ce or a regularly utilized drop box of the overnight delivery carrier. LEI By e-mail or electronic transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Attorney for Petitioner Paul Nicholas Boylan Michael Robertson PO. Box 719 Davis, CA 95617 Telephone: (530) 297-7184 Facsimile: (530) 297 7168 Email: pnbovlan@gmail.com John F. Kirk, Bar No. 149667 Shelby Tucker, Bar No. 260094 SAN DIEGO ASSOCIATION OF GOVERNMENTS 401 Street, Suite 800 San Diego, California 92101 Telephone: (619) 699-1900 Facsimile: (619) 699-1905 'ohn.kirk sanda .or I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Attorneys for Respondent San Diego Association of Govemments Executed on March 30, 2015, at Sacramento, California. ?9 Pea/a Claudia Psach -2- PROOF OF SERVICE 95814 LAW OFFICES OF BEST BEST KRIEGER LLP 500 CAPITOL MALL, SUITE 1700 SACRAMENTO. CALIFORNIA PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. My business address is 500 Capitol Mall, Suite 1700, Sacramento, California 95814. On May 13, 2015, I served the following document(s): El NOTICE OF ENTRY OF STATEMENT OF DECISION By fax transmission. Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed below. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which I printed out, is attached. By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed below (specify one): Deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. Placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at Sacramento, California. By personal service. At I personally delivered the documents to the persons at the addresses listed below. (1) For a party represented by an attorney, delivery was made to the attorney or at the attorney's of?ce by leaving the documents in an envelope or package clearly labeled to identify the attorney being served with a receptionist or an Individual in charge of the of?ce. (2) For a party, delivery was made to the party or by leaving the docrunents at the party's residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. By messenger service. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed below and providing them to a professional messenger service for service. A Declaration of Messenger is attached. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed below. I placed the envelope or package for collection and overnight delivery at an of?ce or a regularly utilized drop box of the overnight delivery carrier. -1- PROOF OF SERVICE LAW OFFICES OF BEST BEST KRIEGER LLP 500 CAPITOL MALL. SUITE 1700 SACRAMENTO, CALIFORNIA 95814 e-mail or electronic transmission. Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Paul Nicholas Boylan PO. Box 719 Davis, CA 95617 Telephone: (530) 297-7184 Facsimile: (530) 297 7168 Email: Attorney for Petitioner Michael Robertson I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 13, 2015, at Sacramento, California. -2- "i Fir??1'- Claudia Peach PROOF OF SERVICE