‘VIRGINIA: IN THE CIRCUIT COURT OF THE COUNTY OF FAIRFAX HARRISON NEAL, ) ) Plaintiff, d ) y. 3 ) CivitNo. FAIRFAX COUNTY POLICE ) DEPARTMENT and COLONEL EDWIN C. ROESSLER, JR., Chief of Police, Failax County Police Department. d d Defendants COMPLAINT Introduction 1. This is an action for an injunction andlor wit of mandamas under the Government Data Collection and Dissemination Practices Act, Va. Code §§ 2.23800 ese. the "Data Act), a sate that was designed w prevent government agencies from unnecessarily collecting, storing, or disseminating the personal information of individuals. Defendants Faefax County Police Department (FCPS) and its Chief of Police have violated the satu by using -Aomated License Plate Readers (ALPRs) to scan tees or hundreds of thousands of license Plats of vehicles not suspected of any involvement in eiminal activity, along with the date and location at which the plate was scanned, storing the data for one year, and shai the data with ‘ther law enforcement agencies in the District of Columbia metropolitan area, ‘The defendants’ ‘massive ALPR database allows the deparivent, and the law enforcement agencies with which i shares date, to determine whether particular veieles have bee inthe vicinity of, for example, pacar churches, political allies, or doctors offices, undermining the privacy ofthe divers of those vehicles. The plaintiff a resident of Faefax County whose license plate data hes beencollected atleast twice by the defendants, respectfully requests an injunction andor writ of smandamus prohibiting the defendants from continuing to violate the Data Ac Jurisdiction and Venue 2. Joristieton and venve ae rope inthis Court pursuant to Va. Code § 2.23808, ‘bocause plant Harison Neal resides in Fairfax County and because defendant Faicfx County Police Department has place of business in Faifax County Parties 3. Plains Harison Neal isan adit resident of Parfex County, Virginia. 4. Defendant Fairfax County Police Department (FCPD) is an agency of Faire County, Virginia, nd the primary law enforcement ageny for eirfex County, Virginia 5. Defendant Colonel Edwin C. Roessler, Jt i the Chief of Police Fairfax County Police Department. AS suc, he isin command ofthe FCPD and makes rues and relations concerning the operation ofthe FCPD and the conduct ofits officers and employees. Faifax Cay. Charter Se.103 actual Allegations ALPRs 6 An ALPR (sometimes refered to as an "LPR") is a device that automatically records every lense plate that comes int its field of vision, along withthe dat, time, and Jocaton at which the record was made. Its capable of recording thousands of license plates per minute, ALPRS ae often mounted on police vehicles o on stationary objects 7. Broadly speaking law enforcement agencies use ALPRS in two ways. First the agency may maintain & “hot list” of license plate numbers, which may includ the plates of vehicles that have been reported missing or that are suspected of involvement in a crime. Everytime the ALPR sans license plate, the scans automaticly checked agains the hoist, that target veicles may be quickly identified. ‘The plaintiff does not challenge this typeof use of [ALPRs, which i sometimes ealed “active” use 8 Second, law enforcement may save the dala associated with every license plate sean and stow it in a large database, The database may later be queied to determine whether a particular vehicle was seen at a particular dace and time sta particular place. This use of ALPRS, Sometimes called “passive,” violates the Data Act. Defendants" Use of ALPRs 9. Since atleast 2010, the Fairfax County Police Department has possessed one or ‘more ALPRs. The equipment was proved to the FCPD by Arlington Couaty, Virginia as part ‘of grat from the United States Department of Homeland Secuity. Adington County wes the dministator ofthe grant, which was intended fo provide ALPR equipment to patcipating Ia enforcement agencies in he Washington, D.C. area 10, Pursuant to FCPD SOP 11-039, adopted in January 2010 and, upon information and bli, stil n effect, the FCPD uses its ALPRs in both an “active” and a “passive” manner (A.copy of SOP 11-039 is attached as Exhibit A andi fully incorporated hein) 11, With respect tothe “passive” use of ALPRS, the FCPD's policy states: “ALPR generated data il be maintained on the server for 8 period not to exceed 365 days without specific authorization of the Chief of Police, ‘The purpose ofthe retention petiod is o increase protection of the community by providing an investigative tool to aid in the detection or investigation of terrorism or assis of elated crimes.” 12, Additionally, the FCPD is a party to a Memorandum of Understanding ("MOU") among an unknown number of law enforcement agencies in the Washington, D.C. areapertaining to the sharing of ALPR data. Under the MOU, each participating agency agress to allow every other patipating agency to access its ALPR database for law enforcement orposes 13, On orabout May 9, 2014, plaintiff Nea! submitted a request tothe FCPD seeking sl ALPR records related toa particular license plate number fora vehicle that he owns. In response, on May 15,2014, the FCPD seat Neal letter sang that “within the last 364 days, your tag was read ice by our ALPR system.” 14. The respons from FCPD aso included two sheets of paper, each of which had two pictures of Neal's vehicle and chart indicating the time, date at which the photographs wore taken, Each chart also includes the words “Mason 4866.” Upon information and belief, “Mason 4866” designates the specific ALPR device that took the photographs. ‘he response also included a map on which a particular location is marked, which Neal assumes isthe location AL which the device is or was mounted. (The entire response from FCPD is atached hereto es [Exhibit Bands fll incorporated been) 15, The locaton depicted on the map included in the FCPD response is one that Neal. dives past frequently inthe course of his employment and for other purposes ‘Application ofthe Duta Act to Defendants Use of ALPR 16. The Data Act govems the collection, storage, and dissemination of “personal information” by government agencies. 17. The Data Act defines “agency” in relevant pat as “any agency, authority, board, nde v Humphries, 224 Va, 439, 449-46, 297 S24 684, 686 (1982), See §2.2-3800() (cng Genes ‘Assembly's ndings lenin Io he Data A's emae), * Sue 2002 Op, Va. At Gen. 34, * Sesion 22-3800) 2nd (©),Col. WS. Faherty Pebruary 13, 2013, Page 3 Heatification number, student identiiston number, real or personal property holdings devived fom tax rtums, and his escaton, financial tneactons, media hitey, sncesty, religion, polital ideology criminal or employment ecord Data collected utilizing LPR teehnology falls within this stattory definition, a, for exemple, it tay asin losing an individual aa subject, documenting his movements, or determining Nis posal property holdings.” The colleton of such infomation may adversely effect an individual who, st sme point inte, may be suspected of ad or charged wit 2 criminal velation® Accordingly, data cllsted by an LPR generally meets the definition of "personal nformetion” an this falls within the scope of the Dasa Act ‘Therefore, the analysis ofthe issues you present must explore ary exemptions to the Data Act's coverage that may be applied to date collested trough LPR technology. ‘The Data Act's provisions afford an exemption for certain persone} information systems that are “foeiasined bythe Department of State Police; the police deparment of the Chesapeake Bay Bridge and ‘Tunnel Commission; police departments of cities, counties, and twas; and the campos police departments of public isttations of higher education... ‘Ths exemption applies exclusively %9 information “dat deaf] with investigtions and intelligence gatering relating terminal activity( ‘Cleary, dat collected by an LPR fo the active manner and maintained by such law enforcement nts eats ‘iectly to the immediate public safety treat of criminal atvity. Ths, such te ie ‘exempted fom te application ofthe Dat Act by its epee tems. With respoct to LPR data collet wo date in the pasive manner, you note thi thes proven “an lnvalole tot in developing leads intervie investigations and criminal esse «~~ inluding) fn high rofile cases like the Museum of the Marine Comps sniper caso” Nevertheless, bacaure no specific exemption applies toil, | must conclude that data so collected is subject to the Data Act's regulatory provisions, ‘At §223800(0) of te Code of Virginia, end fundamental tothe Data Act, the General Assembly ‘enunciated severl “principles of information prasice to ensure safeguards for personal privacy”. Among, ‘ose principles is one particularly relevant to LPR data collected nthe passive manner, sath thay “{ijformation shal not be collected unless he need for it as been clearly established in advance” ‘You sate tat dita collered by en LPR in the passive manner is considered “raw dats” ad is continuously recorded. It captures the "image ofthe plac, the time, date end precise location te lense Plate a qestion(J” You also explain tha, “ihe systems only translate eters and numbers. This date section 223801 7 Renily tinal information may ich hewitt informatn and ‘el ets The deo fiflomaton rea boy enone records “ong petal Inorton ad th ames person! mer, rte ent puso a joa” Seen 2501. ‘sje ("un nda bes whom persona ifomain I lined or ay be aed wer his ane ‘orl mmr, or ober ena pela an freaton sy". *seeg223001 * secon 2238020). ne " seaion 223800640),CCl. WS. Flaberty February 13,2013 Pages then stored by the capturing agency and can be searched ata lato dato by an alphanumeric query 10 etemine if, when and where a Ticese plate matching the query wes encountered,” (On these fits I conse tat the need for such data has not been "eleary established in advan 0.8 to conform tothe appieable principle of information practice.” Is future vale to any investigation ‘of erminalstvity is wholly spectlatve. Therefore, with no exemption sppliebl toi, the collection oF LPR dat in the pasive manner doesnot comport withthe Dts Act's strictures end prohibitions nd may not lawully be done” ‘With segard fo your second inquiry, information that ean be classified as “criminal intaligence Information” also is expressly exempt fom the application of te Dain Act This exemption ie found in ‘nother par ofthe Cads, one that relates othe Virginia Fusion Intelligence Center (te fusion cate”. “Criminal intelligence information” i defined as “data that has bosn evaluetd and determined tbe relevent to the identification and ermal activity: of individuals oe oxpaniaations that sre reasonably suspected of involvement in eriinal activi." ‘This deintion, however, “shall not ielude criminal investigative ies” You ak whether data obtained trough LPRs meets this definition, When constuing a statu, he primary objective isto ascertain ané give effect to legislative intent” as expressed by the language used inthe statute” Where the language of statute is urambiguous, the cours are bound by he plin meaning ofthat language.” Also, where a statute specifies conan tings, the intention to exslice that which snot specified may be inferred,” and “[eours} may net add wo a state language which the logislatre her chosen oto inelade™™ In defining the term “criminal iteligence information, the General Assombly specially init suc infomation to “gara tht has beer evalusted and determined o be relevant o the identification snd ‘riminl activity." "Thus, only information that has been both evaluated and determined to be rolvant seston 22-380(032). "See §§ 22-3800) and (C),22-S803(A, 996229008, "eatin 2-48(A) (Supp. 2012). " See Chap 11 of Tite 52 ofthe Cade of Virginia, VA. CODE ANN. §5 52-4 trough 52-49 (2009 & Supp. 2012) I noe ta he tr “celal ine nfration” fs used enya thls pat of te Code, ich dele tclsvely wih te Vigiie Fusion Intaiganee Center, and nt with i eaoeent pastes more general The Virgin Ftson insignce Cente sa mahngnsy contr tasked special Wes eatherng ad reviewing toi ‘eld inoation. See § 5247 (2005). The Deparment of Sate Polis Operates te fasion cna, aed shal calle, analy. dserinae, and maintain suc afm to supprt fen tte, and federal ntven rene eects and other goverment agencies sad peat pains preventing, pepcng fr. responding om ‘Reaver fom my posible or acl evar osc Id "econ 52-494 Commanethv. Amerson, 281 Va 41,418, 706 S24 879, #82 2011) (quoting Conger, Barat, 20 Va, 627,690, 028.24 117, 118 2010) (ternal quoon marks exited) ® Koumls . Commonweath, 281 Va. 347,349,706 S.26 860, 652 (2011) (uoing Conyers v. Maio Ars World of ieknond, ne, 273 Va. 96,104, 839 S24 74, 178 @007), "See 2A Noni SINGER 11D SHAMDIE SHR, SUTHERLAND STATUTORY CONSTRUCTION § 47.23 (ed 2007 (exlalng maxim of stator constuction “express unt ax excl alo”), See at. 2008 OP. Va. At'y Gen 126 127 and stations teen. cng. of Amber. Brockman, 26 Va 391 397297 24805, 808 (182) Seaton 52-46) (mph ated.(Col, WS. Faherty February 13,2013, Pages to th identifieation and criminal activity of individuals or organizations thet are reasonshly suspected of Involvement in criminal activity constiuts “criminal intelligence information” Iafermation fat has not been evaluated or detcrmiaod to beso relevant does not mest the definition, Accordingly, dat collected bythe fasion canter through we ofan LPR inthe ative manner nd sptcifcly, the dats tht is evelusted and analyoed in real-time respecting suspected eriminel ath ets the definition of “eraieal intelligence information.” I ths is exempted from the scope ofthe Data Act ‘Conversely, ny date tht may be collected in the passive manner by the fusion centr through ase ‘ofan LPR tat sof unknown relevance and not intended for prom evaluation and potential we respecting suspeeted criminal activity, isnot “einina inteligenceinformstion” I therefore is not exempted from the scope ofthe Data Act “Therefor, in sum, 1 conclude that whether an LPR can be used to collet personal information depends onthe manner in which the device i employed to ota the data. If the data is collected inthe setive manner, including data that ean be deemed “criminal itligence information,” such dita ca be ‘collected maintained and dssomingted in accordance with lw. On the ether hand, LPR technology may ‘ot lawfly be used to calle: personal information in the passive menne, Including “the mags of the place the tie, dato and posse location [oF ene patel” Concasion Accordingly, iis my opinion thatthe Data Act doesnot prelude law enforcement agencies from raining, vsing and disseminating personal information collected by an LPR, provided such ata specifically pertsns to investigation and intelgnace gathering rlting > criminal activity. LR data so coleted is exempted fom the Date Act's coverage. Tt further is my opinion ha data cllected by an LPR tay be classified as “criminal intelligence information,” and thereby exerted fom the Dats Act's coverage, ifthe data i collected by or on behalf ofthe Virginia Fusion intligence Centr, i evalated and determined to be relevant to criminal activity in aczordanes with, and is maintained in conformance with the criteria specified in§ S248 ofthe Code of Virginia. Finally itis my opinion that because the need for such data fas not been “clearly established in edvance”, LPR data collected inthe continuous, astive manner, that & not properly classified es “criminal Intelligence information” and not otherwise relating rectly to law enforcement investigations and intligence gathering respecting ermal soivity, i ubjoct to the Daia Act's stritures and prohibitions, and it may not lawfully be cllested through tse of LPR technology. With kindest epards, Tam Very tly yours, Kes Kenneth 7 Cucina, I Attorney General