BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2221| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 AB 2221 Page 2 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).) AB 2221 Page 3 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 AB 2221 Page 4 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 AB 2221 Page 5 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).) AB 2221 Page 6 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: AB 2221 Page 7 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, AB 2221 Page 8 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 **** END ****