NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA
Fairfax County Courthouse
4110 Chain Bridge Road
Fairfax, Virginia 22030-4009
703-246-2221 • Fax: 703-246-5496 • TOO: 703-352-4139
BRUCE D. WHITE. CHIEF JUDGE
RANDY. BELLOWS
ROBERT J. SMITH
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JOHN M. TRAN
GRACE BURKE CARROLL
DANIEL E. ORTIZ
PENNEY S. AZCARATE
STEPHEN C. SHANNON
THOMAS P. MANN
RICHARD E. GARDINER
DAVID BERNHARD
DAVID A. OBLON
DONTAL L. BUGS

COUNTY OF FAIRFAX

CITY OF FAIRFAX

April 1, 2019

JUDGES

Edward S. Rosenthal, Esquire
Lana M. Manitta, Esquire
Jennifer A. Lucey, Esquire
Rich Rosenthal Brincefield Manitta Dzubin & Kroeger, PLLC
500 Montgomery Street, Suite 600
Alexandria, VA 22314

THOMAS A. FORTKORT
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL P. McWEENY
GAYLORD L FINCH. JR.
STANLEY P. KLEIN
LESLIE M. ALDEN
MARCUS D. WILLIAMS
JONATHAN C. THACHER
CHARLES J. MAXFIELD
DENNIS J. SMITH
LORRAINE NORDLUND
DAVID S. SCHELL
JAN L BRODIE
RETIRED JUDGES

Kimberly P. Baucom, Esquire
Senior Assistant County Attorney
12000 Government Center Parkway, Suite 549
Fairfax, VA 22035
RE: Harrison Neal v. Fairfax County Police Department, et al., Case No. CL-2015-5902
Dear Counsel:
This matter comes before the Court on the reversal and remand of the Supreme Court of
Virginia. This case was heard on December 19, 2018, after which this Court took the matter
under advisement. For the reasons that follow, the Plaintiff's petition is granted.
BACKGROUND
The Plaintiffs brought this action under the Government Data Collection and
Dissemination Practices Act, Virginia Code § 2.2-3800 et seq ("Data Act"). The subject of the
alleged violation of the Data Act is the Automatic License Plate Reader ("ALPR") system used
by the Fairfax County Police Department ("FCPD").
The Data Act prescribes that "Mecordkeeping agencies of the Commonwealth,"
including the FCPD, "shall adhere to the following principles of information practice to ensure
safeguards for personal privacy: ... Information shall not be collected unless the need for it has
been clearly established in advance ..." Va. Code § 2.2-3800(C)(2). An "information system"

OPINION LETTER

 Re: Harrison Neal v. Fairfax County Police Department, et of.
Case No. CL-2015-5902
April 1, 2019
Page 2 of S

subject to the Data Act is defined as "the total components and operations of a record-keeping
process" that contains "personal information and the name, personal number, or other identifying
particulars of a data subject." Id § 2.2-3801 (emphasis added). The Data Act does not apply to
systems "that deal with investigations and intelligence gathering related to criminal activity[.]"
Id. § 2.2-3802.
The recitation of facts in my first opinion is appropriate now:
The parties do not dispute the following facts. FCPD is the primary law
enforcement agency in Fairfax County. Since at least 2010, FCPD has used ALPR
technology, in the form of specialized cameras mounted on either a police cruiser
or a stationary structure, to capture and thereafter maintain a database of the
captured individual license plate numbers. In addition to the license plate number,
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 (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. The hot list is
imported into the ALPR system either automatically through a server or manually
by the end user. The end user may also manually enter a wanted vehicle license
plate into the ALPR system along with a notation regarding the reason for entry
(e.g. stolen vehicle, abduction, or robbery suspect). The ALPR software runs in
the background of a Mobile Computer Terminal (MCT) and automatically alerts
police operators to potential stolen vehicles or license plates in their vicinity by an
audible and visual alarm on the computer screen. Irrespective of whether a "hit"
occurs, FCPD stores the captured license plate information in a database for 364
days. After 364 days the data are purged from the database. This is called "passive
use." The Plaintiffs complaint exclusively addresses this passive use.
On May 7, 2014, Plaintiff Harrison Neal, a resident of Fairfax County, submitted
a request to FCPD pursuant to The Act and the Virginia Freedom of Information
Act (FOIA), Va. Code §§2.2-3700, for all documents in FCPD's custody
pertaining to his license plate number "ADDCAR." On May 15, 2014, FCPD
produced documentation from two instances where an FCPD ALPR camera
captured an image of the "ADDCAR" license plate. The first capture occurred on
April 26, 2014. The second capture occurred on May 11, 2014. FCPD maintained
both images in its ALPR database. The database did not contain Neal's name,
address, date of birth or any information related to the registered owner of the

OPINION LETTER

 Re: Harrison Neal v. Fairfax County Police Department, et al.
Case No. CL-2015-5902
April 1, 2019
Page 3 of 5

vehicle associated with the "ADDCAR" license plate number. The only
information stored as to the "ADDCAR" license plate was the photographs, and
the date, time and UPS coordinates of the locations where the photos were
captured.
Plaintiff Neal brought this action contesting the legality of the retention of the
information obtained by the ALPR readers. Specifically, Neal claimed that the ALPR database
is an "information system" that gathers personal information during its "passive use" and is
therefore not only subject to the Data Act, but is being used by the FCPD in direct contravention
to the Act This Court heard cross-motions for summary judgment on September 8, 2016. After
argument by counsel and considering the pleadings of the parties, I granted summary judgment
for the FCPD and dismissed the plaintiff's motion for summary judgment. In so doing, I
specifically held that a license plate is not personal information, and therefore the ALPR was not
subject to the Data Act. The Plaintiff appealed to the Supreme Court of Virginia.
On April 26, 2018, the Supreme Court reversed that decision and remanded the case. In
examining the information collected by the ALPR system, the Supreme Court posited that "the
pictures and data associated with each license plate number constitute "personal information" as
defined by [the Data Act]." Id. at 346 (emphasis added). The Supreme Court also held that while
a license plate number alone "would not be "personal information" because there is nothing
about a license plate number that inherently "describes, locates or indexes anything about an
individual," it could subject the ALPR system to the Data Act if the license plate number is used
to identify the owner of the vehicle.2 Neal v. Fairfax County Police Department, et al., 295 Va.
334, 345-6 (2018).
The Supreme Court then found that because the ALPR system is a "record-keeping
process" that includes "personal information," namely, the pictures and data associated with the
license plates, the one issue left to decide under the Data Act is whether the ALPR system also
contains "the name, personal number, or other identifying particulars" of a vehicle's owner. Id. at
347; see Va. Code § 2.2-3801. Consequently, the Supreme Court left the following for the trial
court to determine: "[W]hether the total components and operations of the ALPR record-keeping
process provide a means through which a link between a license plate number and the [identity
of the] vehicle's owner may be readily made." /d.3
This Court, as directed, conducted a hearing on December 18 and 19, 2018. This Court
took the matter under advisement. The reasoning for my decision follows.
'On January 2, 2016, Neal submitted a second request pursuant to the Act and VAFOIA for copies of all documents
in FCPD's custody pertaining to the license plate number "ADDCAR." On January 13, 2016, FCPD notified Neal
that FCPD did not have any documents responsive to his 2016 request.
2 The Supreme Court uses the example of the Department of Motor Vehicles' database, which does just that.
3 The Court also noted that the Police Department's "passive use" of the ALPR system does not fall under the
exemption to the Data Act because, as the Department admitted in its response to Neal's first request for admissions,
that "at the time they (sic) captured and stored the ADDCAR ALPR information, that information had not been
deemed part of any specific law enforcement investigation or purpose." Neal, 295 Va. at 349.

OPINION LETTER

 Re: Harrison Neal v. Fairfax County Police Department, et al.
Case No. CL-2015-5902
April 1, 2019
Page 4 of5

FINDINGS OF FACT AT THE DECEMBER 18111, 2018 IIEAR1NG
The evidence presented and the arguments made by counsel centered on the utilization of
the ALPR system by police officers to match a license plate number with the identity of the
vehicle's owner through the National Criminal Information Center (NCIC), the Virginia
Criminal Information Center (VCIC), and the Department of Motor Vehicles (DMV) databases.
From the evidence produced at trial, the following facts are found, in addition to those from the
prior hearing:
The ALPR system includes a hardware, software and a server component. The hardware
is a computer in the trunk of a police cruiser that converts the images of license plates, taken by
the cameras, into letter/number combination sequences. This computer processer is connected
by an Ethernet cable to the laptop computer, or Mobile Data Terminal ("MDT") in the front of
the cruiser. The ALPR system has a software program that is accessible on the MDT. The
officer must log in to access the program. The operation system, or EOC, for the ALPR recordkeeping process is located in the County's Government Center. All information collected from
the ALPR cruiser cameras are stored in the EOC. Information that is not identified as part of a
criminal investigation will remain in the EOC for 364 days, after which it is purged. Only
certified ALPR users, who are issued a unique user ID and password, can access the ALPR
system.
To search the EOC for information, an officer must log into the software on the MDT and
enter the license plate number into the search field. If the license plate number is stored in the
EOC, the officer will be able to view the following information on the MDT screen: a
photograph of the license plate, the license plate number, and the date, time, and GPS location of
the photograph capturing the license plate. The EOC and the computer processor in the trunk of
the cruiser only contain ALPR information and are separate from all other databases.
To access the NCIC, maintained by the Federal Bureau of Investigation (FBI), the VCIN
or the DMV databases, an officer must log into a separate software program called I/MOBILE
with a unique state-issued user ID, which is separate from the Fairfax County user ID. If an
officer acquires a license plate number from the ALPR software on the MDT, then she may use
the license plate number to discover the identity of the vehicle's owner by closing out of the
ALPR software, then signing into the I/MOBILE software and entering the license plate number,
all on the MDT. Thus, while an officer can access all above-mentioned databases from the same
computer, human intervention is required to match personal, identifying information from one
database with the license plate number in the ALPR database.
ANALYSIS
If the only issue before the Court was whether the link must be automatic to be found
invalid, the defendant's position might well carry the day. However, the Data Act defines
"information system" as:

OPINION LETTER

 Re: Harrison Neal v. Fairfax County Police Department, et al.
Case No. CL-2015-5902
April I, 2019
Page 5 of 5

The total components and operations of a record-keeping process, including
information collected or managed by means of computer networks and the
Internet, whether automated or manual, containing personal information and the
name, personal number, or other identifying particulars of a data subject. Va.
Code §2.2-3801 (emphasis added).
The methodology here requires no less than two computer programs and three passwords. Such
requirements, while perhaps cumbersome, do not necessarily preclude an establishment of a
sufficient link under the Supreme Court's analysis and the Data Act.
While the Supreme Court did not define a "link," Merriam-Webster's Dictionary denotes
a "link" as "an identifier attached to an element (such as an index term in a database) in order to
indicate or permit connection with other similarly identified elements."4 Having now conducted
a full hearing and observing the evidence presented, I must conclude that such a link exists.
While the Court deduces the ALPR record-keeping process does not itself gather or directly
connect to "identifying particulars" of a vehicle owner, the ALPR system does enable police
officers to cross-reference ALPR data with the identity of an individual. In other words, access
to the license plate number stored in the ALPR system "permit[s] connection" to the identity of
the vehicle's owner with a few clicks on the screen, all from the driver's seat of a police cruiser.
Under the Supreme Court's direction, therefore, I find that the ALPR record-keeping process is
subject to the Data Act in its "passive use."
CONCLUSION
After reviewing the evidence presented at trial, I find that the ALPR system provides a
means through which a link to the identity of a vehicle's owner can be readily made. The Police
Department's "passive use" of the ALPR system therefore violates the Data Act. Accordingly,
the petition for injunction is granted. Counsel for the plaintiff will prepare and circulate an order
for the parties to sign and to submit to the Court on my civil motions docket, April 5, 2019, at
10:00 AM.
Sincerely,
k

Robert J. Smi
I
Judge, Fairf
ounty Circuit Court

Link, MERR1AM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/link (last visited March 28, 2019).
In her closing argument, Counsel for FCPD provided the Court with Merriam-Webster's other definition for link,
namely, as a "connecting structure." This citation led me to the definition cited above, which I think is more
suitable here.
4

OPINION LETTER