BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                  AB 2221|
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                                 THIRD READING


          Bill No:  AB 2221
          Author:   Block (D)
          Amended:  8/6/12 in Senate
          Vote:     21

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 6/19/12
          AYES: Hancock, Anderson, Calderon, Harman, Liu, Price, 
            Steinberg

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           ASSEMBLY FLOOR  :  75-0, 5/14/12 - See last page for vote


           SUBJECT  :    Public Records Act

           SOURCE  :     San Diego District Attorney


           DIGEST  :    This bill (1) adds 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) 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.

           Senate Floor Amendments  of 8/6/12 express Legislative 
                                                           CONTINUED





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          intent regarding provisions of this bill and the Governor's 
          Reorganization Plan No. 2 of 2012.  The purpose of these 
          non-substantive amendments is to advise drafters of any 
          future legislation implementing the Governor's 
          Reorganization Plan No. 2 of 2012 that the terms of this 
          bill are not intended to supersede amendments to Government 
          Code section 6254 changing the name of California Emergency 
          Management Agency to Office of Emergency Services, included 
          in the GRP and becoming fully operative July 1, 2013.

           ANALYSIS  :    Existing 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 exempted by 
          law.  ÝGovernment Code Section 6253(a).]

          Existing 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.)

          Existing 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).)







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          Existing 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 head of a municipal police 
          department.  (Government Code Section 6254(u)(2), (3).)

          Existing 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).)

          Existing 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).)

          Existing 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).)

          Existing 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 







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          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).)

          Existing law defines "confidential personal information" 
          includes, but is not limited to, an address, telephone 
          number, 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).)

          Existing 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).)

          Existing 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).)

          Existing 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 







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          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 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).)

          Existing 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.  (California 
          Constitution Art. I, Sec. 28(b)(4).)








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          Existing 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, the accused, or 
          a person whom the court finds would not act in the best 
          interests of a minor victim.  (California Constitution Art. 
          I, Sec. 28(e).)

          Existing 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.  
          (California Constitution Art. I, Sec. 3(b)(2).)

          This bill adds 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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  Yes

           SUPPORT  :   (Verified  8/6/12)

          San Diego District Attorney (source) 
          California District Attorneys Association
          Crime Victims Action Alliance
          Crime Victims United of California

           ARGUMENTS IN SUPPORT  :    According to the author:







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               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 
               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.    


           ASSEMBLY FLOOR  :  75-0, 5/14/12
          AYES:  Achadjian, Alejo, Allen, Ammiano, Beall, Bill 
            Berryhill, Block, Blumenfield, Bonilla, Bradford, 
            Brownley, Buchanan, Charles Calderon, Campos, Carter, 
            Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, 
            Donnelly, Eng, Feuer, Fong, Fuentes, Furutani, Beth 
            Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove, 
            Hagman, Halderman, Hall, Harkey, Hayashi, Roger 
            Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, 
            Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, 
            Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, 







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            Nielsen, Norby, Olsen, Pan, V. Manuel Pérez, Portantino, 
            Silva, Skinner, Smyth, Solorio, Swanson, Torres, Wagner, 
            Wieckowski, Williams, Yamada, John A. Pérez
          NO VOTE RECORDED:  Atkins, Butler, Fletcher, Perea, Valadao


          RJG:n  8/6/12   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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