BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2221 ( Block)
As Amended March 28, 2012
Hearing date: June 19, 2012
Government Code
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PUBLIC RECORDS ACT:
EXCEPTIONS FOR PROSECUTORS AND PUBLIC DEFENDERS
HISTORY
Source: San Diego District Attorney
Prior Legislation: AB 1682 (Torres) - (2009-10) failed passage
in Assembly Public Safety
SB 1239 (Hollingsworth) - Chapter 52, Statutes of
2006
SB 58 (Johnson) - Chapter 507, Statutes of 2004
Support: California District Attorneys Association; Crime
Victims Action Alliance; Crime Victims United of
California
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
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KEY ISSUES
SHOULD PROSECUTORS AND PUBLIC DEFENDERS BE ADDED TO THE LIST OF
PROFESSIONALS WHOSE HOME ADDRESS AND TELEPHONE NUMBER, CONTAINED
IN FIREARM LICENSES AND LICENSE APPLICATIONS, ARE NOT FULLY
REQUIRED TO BE DISCLOSED AS PUBLIC RECORDS UNDER THE CALIFORNIA
PUBLIC RECORDS ACT (PRA)?
(CONTINUED)
SHOULD CONFIDENTIAL INFORMATION OR RECORDS PERTAINING TO CRIME
VICTIMS, AS PROVIDED IN THE VICTIMS' BILL OF RIGHTS ACT OF 2008:
MARSY'S LAW, SECTION 28 OF ARTICLE I OF THE CALIFORNIA CONSTITUTION,
BE ADDED TO THE LIST OF INFORMATION NOT REQUIRED TO BE DISCLOSED AS
PUBLIC RECORDS UNDER THE PRA?
PURPOSE
The purpose of this bill is to (1) add prosecutors and public
defenders to the list of professionals whose home address and
telephone number, contained in firearm licenses and license
applications, are not fully required to be disclosed as public
records under the California Public Records Act (PRA); and (2)
add confidential information or records pertaining to crime
victims, as provided in the Victims' Bill of Rights Act of 2008:
Marsy's Law, Section 28 of Article I of the California
Constitution, to the list of information not required to be
disclosed as public records under the PRA.
Current law provides that public records are open to inspection
at all times during the office hours of the state or local
agency and every person has a right to inspect any public
record, except as provided. Any reasonably segregable portion
of a record shall be available for inspection by any person
requesting the record after deletion of the portions that are
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exempted by law. ÝGovernment Code Section 6253(a).]
Current law declares legislative intent to assist members of the
public and state and local agencies in identifying exemptions to
the California PRA. It is the intent of the Legislature that,
after January 1, 1999, each addition or amendment to a statute
that exempts from disclosure any information contained in a
public record shall be listed and described in this article
pursuant to a bill authorized by a standing committee of the
Legislature to be introduced during the first year of each
session of the Legislature. The statutes listed in this article
may operate to exempt certain records, or portions thereof, from
disclosure. The statutes listed and described may not be
inclusive of all exemptions. The listing of a statute in this
article does not itself create an exemption. Requesters of
public records and public agencies are cautioned to review the
applicable statute to determine the extent to which the statute,
in light of the circumstances surrounding the request, exempts
public records from disclosure. (Government Code Section 6275.)
Current law exempts from the disclosure requirements under the
PRA records that are exempted or prohibited pursuant to federal
or state law, including, but not limited to, provisions of the
Evidence Code relating to privilege. (Government Code Section
6254(k).)
Current law exempts from the disclosure requirements under the
PRA information contained in applications for licenses to carry
firearms issued by the sheriff of a county or the chief or other
head of a municipal police department that indicates when or
where the applicant is vulnerable to attack or that concerns the
applicant's medical or psychological history or that of members
of his or her family. (Government Code Section 6254(u)(1).)
Current law exempts from the disclosure requirements under the
PRA the home address and telephone number of peace officers,
judges, court commissioners, and magistrates that are set forth
in applications for licenses to carry firearms, and such
licenses issued by the sheriff of a county or the chief or other
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head of a municipal police department. (Government Code Section
6254(u)(2), (3).)
Current law forbids a state or local agency from posting the
home address or telephone number of any elected or appointed
official, as defined, on the Internet without first obtaining
the written permission of that individual. (Government Code
Section 6254.21(a).)
Current law prohibits any person from knowingly posting the home
address or telephone number of any elected or appointed
official, or of the official's residing spouse or child, on the
Internet knowing that person is an elected or appointed official
and intending to cause imminent great bodily harm that is likely
to occur or threatening to cause imminent great bodily harm to
that individual. A violation of this subdivision is a
misdemeanor. A violation of this subdivision that leads to the
bodily injury of the official, or his or her residing spouse or
child, is a misdemeanor or a felony. (Government Code Section
6254.21(b).)
Current law defines "elected or appointed official" to include
district attorneys, city attorneys, public defenders, and other
public safety officials. (Government Code Section 6254.21(f).)
Current law requires in each county, the district attorney and
the courts, in consultation with any local law enforcement
agencies that may desire to provide information or other
assistance, to establish a mutually agreeable procedure to
protect confidential personal information regarding any witness
or victim contained in a police report, arrest report, or
investigative report if one of these reports is submitted to a
court by a prosecutor in support of a criminal complaint,
indictment, or information, or by a prosecutor or law
enforcement officer in support of a search warrant or an arrest
warrant. (Penal Code Section 964(a).)
Current law defines "confidential personal information"
includes, but is not limited to, an address, telephone number,
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driver's license or California Identification Card number,
Social Security number, date of birth, place of employment,
employee identification number, mother's maiden name, demand
deposit account number, savings or checking account number, or
credit card number. (Penal Code Section 964(b).)
Current law prohibits law enforcement officers or employees of a
law enforcement agency from disclosing to any arrested person,
or to any person who may be a defendant in a criminal action,
the address or telephone number of any person who is a victim or
witness in the alleged offense. (Penal Code Section 841.5(a).)
Current law forbids an attorney from disclosing or permitting to
be disclosed to a defendant, members of the defendant's family,
or anyone else, the address or telephone number of a victim or
witness whose name is disclosed to the attorney as part of the
discovery process, unless specifically permitted to do so by the
court after a hearing and a showing of good cause. (Penal Code
Section 1054.2(a)(1).)
Current law requires state and local law enforcement agencies,
subject to restrictions provided in other provisions of law, to
make public the current address of every individual arrested by
the agency and the current address of the victim of a crime,
where the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for
investigation purposes by a licensed private investigator.
However, the address of the victim of the following crimes shall
remain confidential: assault with the intent to commit mayhem,
rape, sodomy, or oral copulation, human trafficking, rape,
unlawful sexual intercourse with a person under 18 years of age,
rape of a spouse, penetration or rape by a foreign object,
abduction for marriage or defilement, inveiglement or enticement
of an unmarried minor female under 18 for prostitution,
abduction or procurement by fraudulent inducement for
prostitution, abduction to live in illicit relation, unlawful
sexual intercourse where consent is procured by fear, sale of a
person for immoral purpose, procurement of child under age 16
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for lewd or lascivious acts, abduction of person under age 18
for prostitution, aggravated sexual assault of a child, willful
harm or injury to a child, corporal punishment or injury of
child, willful infliction of corporal injury, incest, sodomy,
lewd or lascivious acts, oral copulation, harmful matter sent
with intent to seduce minor, contact of minor with intent to
commit sexual offense, continual sexual abuse of a child, sexual
intercourse or sodomy with a child 10 years of age or younger,
forcible acts of sexual penetration, interference with the
exercise of civil rights because of actual or perceived
characteristics of the victim, hate crime, stalking, or annoying
or molesting a child under 18. Address information obtained
pursuant to this paragraph may not be used directly or
indirectly, or furnished to another, to sell a product or
service to any individual or group of individuals, and the
requester shall execute a declaration to that effect under
penalty of perjury. Nothing in this paragraph shall be
construed to prohibit or limit a scholarly, journalistic,
political, or government use of address information obtained
pursuant to this paragraph. (Government Code Section
6254(f)(3).)
Current law states that a victim has the right to prevent the
disclosure of confidential information or records to the
defendant, the defendant's attorney, or any other person acting
on behalf of the defendant, which could be used to locate or
harass the victim or the victim's family or which disclose
confidential communications made in the course of medical or
counseling treatment, or which are otherwise privileged or
confidential by law. (Cal. Const. Art. I, Sec. 28(b)(4).)
Current law defines a "victim" as a person who suffers direct or
threatened physical, psychological, or financial harm as a
result of the commission or attempted commission of a crime or
delinquent act. The term "victim" also includes the person's
spouse, parents, children, siblings, or guardian, and includes a
lawful representative of a crime victim who is deceased, a
minor, or physically or psychologically incapacitated. The term
"victim" does not include a person in custody for an offense,
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the accused, or a person whom the court finds would not act in
the best interests of a minor victim. (Cal. Const. Art. I, Sec.
28(e).)
Current law states that a statute, court rule, or other
authority that limits the right of access to information that
concerns the conduct of the people's business shall be narrowly
construed to demonstrate the interest protected by the
limitation and the need for protecting that interest. (Cal.
Const. Art. I, Sec. 3(b)(2).)
This bill would add prosecutors and public defenders to the list
of professionals whose home address and telephone number,
contained in firearm licenses and license applications, are not
fully required to be disclosed as public records under the
California Public Records Act (PRA).
This bill adds confidential information or records pertaining to
crime victims, as provided in the Victims' Bill of Rights Act of
2008: Marsy's Law, Section 28 of Article I of the California
Constitution, to the list of information not required to be
disclosed as public records under the PRA.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
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limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
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On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Currently, the California Public Records Act (PRA)
requires law enforcement agencies to disclose certain
information relating to investigative, arrest and
incident reports in response to requests for
information. This material may under certain
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circumstances include crime victims' confidential
information prohibited from being disclosed to
defendants, defendant's attorneys or to anyone working
on behalf of defendant under the California
Constitution, Article I, Section 28 (b)(4). However,
it is unclear whether the PRA recognizes the state
constitutional protections. As a result, uncertainty
exists as to who may be entitled to information
relating to crime victims. AB 2221 incorporates the
constitutional protections into the PRA to bring
clarity to questions of disclosure.
The bill also protects prosecutors and public
defenders from disclosure of personal identifying
information when they fill out an application for a
firearm license. This would provide them with the
same protections currently extended to judges and law
enforcement officers against disclosure of addresses
and phone numbers associated with firearm
applications. The release of personal identifying
information of prosecutors and public defenders, which
may be used to locate them, creates an unreasonable
risk of harm for them and their families solely
because of their involvement in the criminal justice
system.
2. What This Bill Will Do
Current California law protects against disclosure of victims'
personal information by prohibiting attorneys from disclosing or
permitting to be disclosed to a defendant, members of the
defendant's family, or any other person the address or telephone
number of a victim or witness whose name is disclosed to the
attorney as part of the discovery process. If an attorney
discloses this information, he or she may be subject to criminal
prosecution. The PRA prevents the addresses of victims of
specified crimes, including rape, molestation, incest, assault,
and abduction from disclosure. The PRA also references the
restrictions placed on victim information disclosure found in
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Penal Code Section 841.5, which prohibits law enforcement
officers or employees from disclosing to any arrested person, or
to any person who may be a defendant in a criminal action, the
address or telephone number of any person who is a victim or
witness in the alleged offense. As a catch-all provision, the
PRA also notes that records exempt from disclosure under any
state or federal law are also exempt from disclosure under the
PRA.
This bill adds to the list of information not required to be
disclosed under the PRA victims' confidential information as
provided in the California Constitution, in Section 28 of
Article I. Specifically, this section provides that a victim
has the right to prevent the disclosure of confidential
information or records to the defendant, the defendant's
attorney, or any other person acting on behalf of the defendant
which could be used to locate or harass the victim or the
victim's family. The PRA already references existing law that
prevents law enforcement from disclosing a victim's address and
telephone information to any defendants, and references more
broadly any exemptions under state or federal law. This bill
will not substantively affect protections to victims already
provided in existing law.
This bill also addresses disclosure under the PRA of personal
information contained in applications for and licenses issued to
carry concealed firearms. This bill adds prosecutors and public
defenders to the list of public officials whose name and
address, when contained in a concealed firearms license
application or the license itself, are exempted from disclosure
under the PRA. Because people applying for concealed firearms
licenses (CCW) are required to establish good cause for their
issuance, which often involves the fact that a threat has been
made against that person or their family, it seems illogical to
require disclosure of any CCW applicant or licensee's
applicant's home address and phone number under the PRA.
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