Legal Review: Virginia Supreme Court Wants Lower Court to Define Automated Plate Reader Database

By Virginia criminal law attorney Steve Duckett with Price Benowitz, LLP.

“What constitutes personal information?” is the question that the Virginia Supreme Court wants answered by lower courts, according to a decision issued by the Court in April.

The case involved the data collected by Automated License Plate Readers — the devices on the trunk lids of many police vehicles that take pictures of thousands of license plates per hour and check those numbers against list of plates stolen or wanted vehicles.

A Washington Post investigation discovered that several state agencies were not complying with the nonbinding opinion of the state’s Attorney General, who had determined that retention of the photographs for an extended period was not allowed. The Virginia State Police currently purges its photo database every 24 hours.

The Fairfax County Police Department — the defendant in the case in question — had a policy of retaining the information for one year and claimed that the information was not “personal” because the plate information generated did not have an owner’s name associated with it.

However, the Supreme Court felt that this was too narrow an interpretation, finding that the other information in the photograph — the type of vehicle, the time of day, and the surroundings in the photograph, were of a nature that might allow individuals to determine more personal information.

Additionally, when combined with the other resources available to the department, the photographs could quickly become personal in nature. It sent the case back to the lower court to make a determination based on that definition of “personal information.”

“Retention of certain personal information by law enforcement agencies may be considered an invasion of privacy when that information is not related to a crime or investigation,” said Steve Duckett, an Alexandria traffic lawyer.

The license plate data is being legally collected. It is only being used to determine whether the plate number in question is associated with any outstanding stolen or wanted vehicles. It is not being used to identify the individual in the vehicle.

However, retaining that information in a database for an extended period creates another pool of information that can be used to identify individuals and their activities. The lower court will need to decide whether that constitutes an invasion of an individual’s privacy.