BILL ANALYSIS Ó
AB 2222
Page 1
Date of Hearing: May 2, 2012
ASSEMBLY COMMITTEE ON GOVERNMENTAL ORGANIZATION
Isadore Hall, Chair
AB 2222 (Block) - As Amended: March 27, 2012
SUBJECT : Criminal History Records
SUMMARY : Provides that a public prosecutor is not prohibited
from accessing and obtaining information from the public
prosecutor's case management database to respond to a request
for publicly disclosable information pursuant to the California
Public Records Act (CPRA).
EXISTING LAW
1)The CPRA governs disclosure of governmental records to the
public, upon request. Generally, all public records are open
to the public upon request unless the record requested is
exempt from public disclosure.
2)Defines "local summary criminal history information" as a
master record of information compiled by any local criminal
justice agency pertaining to the identification and criminal
history of any person, including name, date of birth, dates of
arrests, and charges.
3)Provides that an employee of a local criminal justice agency
who knowingly furnishes a record or information obtained from
a record to a person who is not authorized to receive the
record or information is guilty of a misdemeanor.
4)Authorizes a public prosecutor to release local summary
criminal history information pursuant to a request under the
CPRA under certain conditions, including that the release of
information would enhance public safety, the interest of
justice, or the public's understanding of the justice system
and the person making the request declares that the request is
made for a scholarly or journalistic purpose.
5)States that local criminal justice agency shall not release
information under the following circumstances:
a) Information concerning an arrest for which diversion or
deferred entry of judgment program has been ordered without
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attempting to determine whether diversion or a deferred
entry of judgment program has been successfully completed.
b) Information concerning an arrest or detention followed
by a dismissal or release without attempting to determine
whether the individual was exonerated.
c) Information concerning an arrest without a disposition
without attempting to determine whether diversion has been
successfully completed or the individual has been
exonerated.
6)States that no person authorized by law to receive criminal
offender record information maintained by a local law
enforcement criminal justice agency shall knowingly disclose
any information received therefrom pertaining to an arrest or
detention or proceeding that did not result in a conviction,
including information pertaining to a referral to, and
participation in, any pretrial or post-trial diversion
program, to any person not authorized by law to receive that
information.
FISCAL EFFECT : Unknown
COMMENTS :
Background : According to the sponsor of the bill, the San Diego
County District Attorney, "The San Diego District Attorney's
Office and other district attorney's offices are converting to
paperless case files and paperless record keeping. The
repository for these records is the district attorney's internal
case management system. Although the CPRA requires disclosure
of records held in electronic format, it is unclear whether the
district attorney can utilize information that is contained in
its case management data base without being criminally liable
under the Penal Code Section 13302."
Attorney General's Opinion : In 2006, the Los Angeles County
District Attorney requested an opinion by the Attorney General
to resolve when a prosecutor may produce records from a
computerized database in response to a public records request.
In response, the Attorney General Bill Lockyer issued an opinion
providing the following as a guide:
1)"Whether a recently charged or soon-to-be charged defendant,
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is on probation or parole, and details of his or her prior
offenses." The details of a person's prior offense are part
of that person's local summary criminal history information;
hence, that information may not disclosed by a local criminal
justice agency except to authorized recipients. If the person
has been arrested by the district attorney's office, however,
and if the request is for current information, the office must
"make public," among other information, any "parole or
probation holds" upon which "the individual is being held."
If these conditions are not met, the district attorney's
office may not disclose the requested information. In any
event, an arresting agency may disclose only those probation
or parole cases in which a hold has been issued; arrest
reports themselves are exempt from disclosure.
2)"An individual's criminal history in the county, including all
arrests and case dispositions." This is protected rap sheet
information. Neither these historical records nor any
information derived from them may be disclosed by a local
criminal justice agency except to authorized recipients.
Further, the agency is also prohibited from facilitating any
circumvention of these protections by providing the same
information, or information leading to it, derived from other
sources.
3)"The disposition of matters referred to the district attorney
for filing of criminal charges." With respect to current
matters, a local law enforcement agency is required to "make
public," under section 6254, subdivision (f)(2), certain
limited information derived from its investigatory files,
including "the time, substance, and location, of all
complaints or requests for assistance received by the agency
and the time and nature of the response thereto," but the
records themselves are exempt from disclosure. This provision
does not require the agency to make public any information
concerning previous complaints or requests for assistance. We
believe that, for a district attorney, such "requests for
assistance" would include matters referred to him for the
filing of criminal charges, and the phrase "nature of the
response thereto" would include the disposition of such
referrals, except that disclosures need to include any
information reflecting the analyses or conclusions of
investigating officers.
4)"Criminal histories associated with a requested list of cases
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in which a specified witness has testified." This type of
request is similar to the discovery request made in Craig v.
Municipal Court, supra, 100 Cal.App.3d 69, where a defendant
sought "protection of the names and addresses of all persons
arrested by the officers for similar charges during preceding
two years." As in Craig, the request posited here would
compromise the privacy interests of the persons who are
subject of such records. For rap sheets as well as for the
arrest records discussed in Craig, the Legislature had
"developed a detailed statutory scheme for limiting access to
and disclosure of such records, and that scheme serves as a
safeguard against improper dissemination and use of the
records." Thus, the production of the requested records or
disclosure of their contents would be prohibited by the terms
of Penal Code sections 13300-14405.
5)"Numerous criminal histories associated with a request for the
names and identities of defendants charged with particular
specified criminal conduct over a period of years." Such a
request, though its purpose may be to survey an agency's
administrative practices over time, seeks historical
information of the kind contained in local summary criminal
history information, including identifying details about
persons charged with particular crimes in the past. Hence,
that information may not be produced or disclosed by a local
criminal justice agency except to authorized recipients. The
request also seeks a large body of data covering a substantial
period of time, and is thus similar to the request for court
records made in Westbrook v. County of Los Angeles , supra, 27
Cal.App.4th 157. We note, however, that there requests are
limited to supporting statistical analyses and do not seek
identifying information about the persons involved, Penal Code
Section 13300, subdivision (h) states: "It is not a violation
of this article to disseminate statistical or research
information obtained from a record, provided that the identity
of the subject of the record is not disclosed."
Purpose of the bill : According to the author, "this bill
clarifies that a public prosecutor can comply with its duties
under the CPRA without the threat of misdemeanor liability. By
allowing prosecutors to effectively use electronic data to
respond to the public's request for information, the law will be
updated to reflect the rapid changes in technology while
continuing to provide transparency to government information
more efficiently and effectively."
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Arguments in support : According to the American Federation of
State, County, and Municipal Employees (AFSCME), AFL-CIO,
"Although the PRA requires disclosure of records held in
electronic format, it is unclear whether the district attorney
can utilize information that is contained in its case management
data base without being criminally liable under Penal Code
Section 13302."
AFSCME further states that, "AB 2222 clarifies this issue by
stating that a public prosecutor can comply with its duties
under the PRA without the threat of misdemeanor liability. The
bill reinforces the legislature's commitment to transparency by
allowing prosecutors to effectively use electronic data to
respond to the public's request for information under the PRA.
In addition, this bill updates the law to reflect the rapid
changes in technology while continuing to provide transparency
in regards to government information."
Double referral : This bill was double referred to the Assembly
Public Safety Committee. It passed out of that committee on
consent.
Related legislation :
AB 2221 (Block), 2011-1012 Legislative Session (Passed this
committee on consent). This bill would add prosecutors and
public defenders to the types of professionals whose firearm
licenses applications are not fully required to be disclosed as
public records under the CPRA.
Prior legislation :
AB 104 (Solorio), Chapter 104, Statutes of 2007. Required
local criminal justice agencies to provide local criminal
history information to city attorneys pursuing civil gang
injunctions, or drug abatement actions, as specified.
SB 2161 (Schiff), Chapter 421, Statutes of 2000. Authorized
county child welfare agencies to use the California Law
Enforcement Telecommunications System to conduct criminal
background checks.
REGISTERED SUPPORT / OPPOSITION :
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Support
San Diego District Attorney's Office (Sponsor)
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
California District Attorneys Association
Opposition
None on file
Analysis Prepared by : Felipe Lopez / G. O. / (916) 319-2531