BILL ANALYSIS Ó
------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2222|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: AB 2222
Author: Block (D)
Amended: 3/27/12 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/19/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
ASSEMBLY FLOOR : 74-0, 5/10/12 - See last page for vote
SUBJECT : Criminal history records
SOURCE : San Diego District Attorney
DIGEST : This bill 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 (PRA).
ANALYSIS : Existing law states 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. (Government Code Section 6253(a))
CONTINUED
AB 2222
Page
2
Existing law exempts from the disclosure requirements under
the PRA any records of complaints to, or investigations
conducted by, or records of intelligence information or
security procedures of, the office of the Attorney General
and the Department of Justice, the California Emergency
Management Agency, and any state or local police agency, or
any investigatory or security files compiled by any other
state or local police agency, or any investigatory or
security files compiled by any other state or local agency
for correctional, law enforcement, or licensing purposes.
However, state and local law enforcement agencies shall
disclose the names and addresses of persons involved in, or
witnesses other than confidential informants to the
incident the description of any property involved, the
date, time, and location of the incident, all diagrams,
statements of the parties involved in the incident, the
statements of all witnesses other than confidential
informants to the victims of an incident, or an authorized
representative thereof, an insurance carrier against which
a claim has been or might be made, and any person suffering
bodily injury or property damage or loss, as the result of
the incident caused by arson, burglary, fire, explosion,
larceny, robbery, carjacking, vandalism, vehicle theft, or
a crime as defined, unless the disclosure would endanger
the safety of a witness or other person involved in the
investigation, or unless disclosure would endanger the
successful completion of the investigation or a related
investigation. However, nothing in this division shall
require the disclosure of that portion of those
investigative files that reflects the analysis or
conclusions of the investigating officer. (Government Code
Section 6254(f))
Existing law exempts from disclosure the 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))
Existing law defines "local summary criminal history
information" as the 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, physical description, dates of
CONTINUED
AB 2222
Page
3
arrests, arresting agencies and booking numbers, charges,
dispositions and similar data about the person. (Penal
Code Section 13300(a)(1))
Existing law requires a local agency to furnish local
summary criminal history information to any of the
following, when needed in the course of their duties,
provided that when information is furnished to assist an
agency, officer, or official of state or local government,
a public utility, or any entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321, Statutes
of 1974, and Labor Code Section 432.7 shall apply:
The courts of California.
Peace officers of California, as defined.
District attorneys of California.
Prosecuting city attorneys of any city within California.
City attorneys pursuing civil gang injunctions.
Probation officers of California.
Parole officers of California.
A public defender or attorney of record when representing
a person in proceedings upon a petition for a certificate
of rehabilitation and pardon.
A public defender or attorney of record when representing
a person in a criminal case if authorized access by
statutory or decisional law.
Any agency, officer, or official of California if the
criminal history information is required to implement a
statute or regulation that expressly refers to specific
criminal conduct applicable to the subject person of the
local summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon
that specified criminal conduct.
Any city or county, city and county, district, or any
CONTINUED
AB 2222
Page
4
officer or official thereof when access is needed in
order to assist that agency, officer, or official in
fulfilling employment, certification, or licensing
duties, and if the access is specifically authorized by
the city council, board of supervisors, or governing
board of the city, county, or district if the local
criminal history information is required to implement a
statute, ordinance, or regulation that expressly refers
to specific criminal conduct applicable to the subject
person of the local summary criminal history information,
and contains requirements or exclusions, or both,
expressly based upon that specified criminal conduct.
The subject of the local summary criminal history
information.
Any person or entity when access is expressly authorized
by statute if the local criminal history information is
required to implement a statute or regulation that
expressly refers to specific criminal conduct applicable
to the subject person of the local summary criminal
history information, and contains requirements or
exclusions, or both, expressly based upon that specified
criminal conduct.
Any managing or supervising correctional officer of a
county jail or other county correctional facility.
Local child support agencies when a local child support
agency closes a support enforcement case containing
summary criminal history information, the agency shall
delete or purge from the file and destroy any documents
or information concerning or arising from offenses for or
of which the parent has been arrested, charged, or
convicted, other than for offenses related to the
parent's having failed to provide support for minor
children.
County child welfare agency personnel who have been
delegated the authority of county probation officers to
access state summary criminal history information
pursuant to the Welfare and Institutions Code (WIC) for
the purposes of investigating child abuse, locating a
parent, or assessing the appropriateness and safety of a
CONTINUED
AB 2222
Page
5
child's placement.
A humane officer for the purposes of performing his or
her duties. A local agency may charge a reasonable fee
sufficient to cover the costs of providing information
under this paragraph. (Penal Code Section 13300(b))
Existing law states that a local agency may furnish local
summary criminal history information upon a showing of a
compelling need to specified individuals and organizations,
provided that when information is furnished to assist an
agency, officer, or official of state or local government,
a public utility, or any entity, in fulfilling employment,
certification, or licensing duties, Chapter 1321, Statutes
of 1974, and Labor Code Section 432.7 shall apply. (Penal
Code Section 13300(c))
Existing law provides that a prosecutor may, in response to
a written request made pursuant to the PRA, provide
information from a local summary criminal history, if
release of the 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. (Penal Code Section 13300(j))
Existing law states that a local criminal justice agency
shall not release information under the following
circumstances:
Information concerning an arrest for which diversion or
deferred entry of judgment program has been ordered
without attempting to determine whether diversion or a
deferred entry of judgment program has been successfully
completed;
Information concerning an arrest or detention followed by
a dismissal or release without attempting to determine
whether the individual was exonerated; and
Information concerning an arrest without a disposition
without attempting to determine whether diversion has
been successfully completed or the individual has been
exonerated. (Penal Code Section 13300(n))
CONTINUED
AB 2222
Page
6
Existing law states that no employer whether a public
agency or private individual or corporation shall ask an
applicant for employment to disclose through any written
form or verbally, information concerning an arrest or
detention that did not result in conviction, or information
concerning a referral to, and participation in, any
pretrial or post-trial diversion program, nor shall any
employer seek from any source whatsoever, or utilize, as a
factor in determining any condition of employment including
hiring, promotion, termination, or any apprenticeship
training program or any other training program leading to
employment, any record of arrest or detention that did not
result in conviction, or any record regarding a referral to
and participation in any pretrial or post-trial diversion
program. As used in this section, a conviction shall
include a plea, verdict, or finding of guilt regardless of
whether sentence is imposed by the court. Nothing in this
section shall prevent an employer from asking an employee
or applicant for employment about an arrest for which the
employee or applicant is out on bail, or on his or her own
recognizance pending trial. (Labor Code Section432.7(a))
Existing law 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. (Labor Code
Section 432.7(g)(2))
Existing law provides that any employee of the local
criminal justice agency who knowingly furnishes a record or
information obtained from a record to a person who is not
authorized by law to receive the record or information is
guilty of a misdemeanor. (Penal Code Section 13302)
This bill provides that Penal Code Section 13302 does not
prohibit a public prosecutor 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 PRA.
CONTINUED
AB 2222
Page
7
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/20/12)
San Diego District Attorney (source)
California District Attorneys Association
American Federation of State, County and Municipal
Employees, AFL-CIO
ARGUMENTS IN SUPPORT : According to the author, "AB 2222
reinforces the legislature's commitment to transparency by
allowing prosecutors to effectively use electronic data to
respond to the public's request for information. The bill
updates the law to reflect the rapid changes in technology
while continuing to provide transparency to government
information more efficiently and effectively. AB 2222 does
not make any additional information disclosable, it just
allows a response in electronic format obtained from the
case management data base system."
According to the bill's sponsor, the San Diego District
Attorney:
Our ESI case management database meets the current
technical definition set forth in PC 1330 of "local
criminal history information." It is a master record
of information pertaining to criminal history and
contains such information as name, date of birth,
descriptions, dates of arrest, agencies booking
numbers, charges, dispositions, etc. Thus disclosure
of any information from the ESI database is prohibited
by Section 13302, unless it meets one of the
exceptions set forth in section 13300 or 13305.
More and more, the San Diego District Attorney's
Office and other district attorneys' offices are
converting to paperless case files and paperless
record keeping. In fact, the PRA requires disclosure
of records held in electronic format. In San Diego,
our ESI case management data base may include all case
related information including the case file itself.
It may also include information that is not considered
CONTINUED
AB 2222
Page
8
part of the "investigatory file" for purposes of the
PRA or records that are excepted such as those made
pursuant to PC 6254(f) Ŭinformation to victim or
victims' representatives; PC 6254 (f)(1) Ŭinformation
on contemporaneous arrests; press releases, etc.]; PC
6254 (f)(2) Ŭ information re complaints and requests
for assistance]; and PC 6254 (f)(3)) Ŭinformation for
scholarly or journalistic purposes].
Thus, requests under the PRA can involve the
potentially required disclosure of information that
goes beyond the exceptions currently allowed under PC
13300 subdivisions (h) Ŭstatistical information];
(j)Ŭinformation for scholarly or journalistic
purposes.]
Currently, when there is a request from the public or
a victim under the PRA, a search for the response to
the request, even where authorized or required under
the PRA may require a search and disclosure of
information from our master ESI database. This
disclosure of information then runs afoul of the
prohibitions set forth under PC 1300 even though we
have no intention of releasing a "rap-sheet" like list
of arrests and convictions.
ASSEMBLY FLOOR : 74-0, 5/10/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Davis, Dickinson,
Donnelly, Eng, Feuer, Fong, Fuentes, Beth Gaines,
Galgiani, Garrick, Gatto, Gordon, Gorell, Grove, Hagman,
Halderman, Hall, Harkey, Hayashi, Roger Hernández, Hill,
Huber, Hueso, Huffman, Jones, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Pan, Perea,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. Pérez
NO VOTE RECORDED: Cook, Fletcher, Furutani, Jeffries,
Olsen, V. Manuel Pérez
CONTINUED
AB 2222
Page
9
RJG:n 6/20/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED