BILL ANALYSIS Ó
AB 2299
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ASSEMBLY THIRD READING
AB 2299 (Feuer)
As Amended May 3, 2012
Majority vote
LOCAL GOVERNMENT 6-1
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|Ayes:|Smyth, Alejo, Bradford, | | |
| |Davis, Hueso, Knight | | |
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|Nays:|Norby | | |
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SUMMARY : Authorizes the board of supervisors of a county to
establish a program whereby the names of certain public safety
officials may be redacted upon request from any property record
of principal residence that is disclosed to the public by that
county, except as specified. Specifically, this bill :
1)Authorizes the board of supervisors of a county to establish a
program that requires the name of a public safety official to
be redacted upon request from any property record that is
disclosed to the public by that county.
2)Exempts from the provisions of the Public Records Act the
disclosure of the name of any public safety official contained
in any property record of a county that is disclosed to the
public, if the public safety official has requested
confidentiality of that information pursuant to this measure
and the county maintains a program that redacts that
information from property records.
3)Permits counties to use or maintain records internally that
include the name of a public safety official who has requested
redaction under the program.
4)Requires the county to prepare and maintain a list specifying
those job classifications eligible to request redaction as
public safety officials.
5)Requires an individual requesting redaction to show valid
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photo identification and proof of employment eligibility as a
precondition of requesting redaction under the program.
6)Authorizes the county to charge a reasonable fee for
participation in the program, provided the fee covers only the
costs of the program.
7)Requires counties that establish a confidentiality program
pursuant to this measure and that sell aggregate data to
require that the names of program participants remain
confidential and not be posted on any Internet Web site or
solicited, sold, or traded.
8)Allows a public safety official whose name is made public as a
result of a violation of this measure to bring an action
seeking injunctive or declarative relief in any court of
competent jurisdiction. If a court finds that a violation has
occurred, it may grant injunctive or declarative relief and
shall award that official court costs and reasonable
attorney's fees.
A court may impose a fine not exceeding $1,000 for a violation
of the court's order for an injunction or declarative relief
obtained pursuant to this paragraph.
9)Allows a public safety official whose name is solicited, sold,
or traded in violation of this measure to bring an action in
any court of competent jurisdiction. If a jury or court finds
that a violation has occurred, it shall award damages to that
official in an amount up to a maximum of three times the
actual damages but in no case less than $4,000.
10)Provides that a county that exercises reasonable care shall
not be held civilly liable for the unintentional disclosure of
the name of a public safety official.
11)Provides that a county shall have exercised reasonable care
if it redacts those documents identified by conducting an
electronic or index search of records based upon the name of
the public safety official.
12)Provides that the name of a public safety official shall be
released upon request of that public safety official.
13)Defines the term "post" to mean to "intentionally communicate
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or otherwise make available to the general public."
14)Defines the term "property record" to mean "a property record
that contains the address of principal residence of the public
safety official."
15)Defines the term "public safety official" to mean a "person
listed in Section 27279.7 İGovernment Code] who is eligible
for, or participates in, the program."
16)Provides that the name of any of the following public safety
officials, whether current or former, shall be redacted from a
property record if the public safety official requests the
confidentiality of that information:
a) An employee of a federal, state, or local law
enforcement agency, not under suspension or otherwise
lacking in good standing, except an employee whose
principal duties are clerical or who is not engaged in law
enforcement operations;
b) A judge, federal magistrate, court commissioner, or
referee who has statutory authority to preside in criminal
proceedings;
c) An attorney of a federal, state, or local prosecutorial
or defense agency who represents that office in criminal
matters;
d) An employee of a federal, state, or local prosecutorial
or defense agency whose responsibilities routinely place
that employee in personal contact with persons under
investigation for, charged with, or convicted of,
committing criminal acts; or,
e) An employee of a federal, state, or local agency who
supervises inmates or is required to have a prisoner in his
or her care or custody, or a probation officer or parole
agent.
17)Provides that the provisions of this bill shall not apply to
an elected official in an elected office, or to a person who
has been appointed on a temporary basis to fill a vacancy in
an elected office, when that elected office is the attorney
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general, district attorney, sheriff, public defender, or city
attorney or prosecutor.
18)Provides that the name of a public safety official shall not
be disclosed under this measure, except to any of the
following: a) a court; b) a law enforcement agency; c) the
State Board of Equalization; d) an attorney in a civil or
criminal action that demonstrates to a court the need for the
name, if the disclosure is made pursuant to a subpoena; or, e)
a governmental agency to which, under any law, information is
required to be furnished from records maintained by the
county.
19)Declares that the Legislature's intent in enacting this
measure is to authorize the board of supervisors of any county
to establish a county program to redact the name of a public
safety official from a property record that contains the
address of the principal residence of the public safety
official.
20)Finds and declares that this measure imposes a limitation on
the public's right of access to the meetings of public bodies
or the writings of public officials and agencies, and that
this measure is necessary to prevent crimes against public
safety officials and their families.
FISCAL EFFECT : None
COMMENTS : This bill would authorize the creation of a voluntary
confidentiality program at the county level to redact the names
of public safety officials from publicly available records of
the official's principle residence as a means to better protect
those officials and their families from violence and
intimidation. This measure is author-sponsored.
According to the author, "İt]his legislation would permit (but
not require) a county board of supervisors to initiate a
confidential records program for public safety officials'
primary home address. Currently, for example, a police
officer's home address is contained on property records that are
generally open to the public at the offices of a county assessor
and/or recorder, and much of the same information is released to
data purchasers. AB 2299 provides counties with the authority
to implement a program to protect public safety officials by
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ensuring that county records are not used to locate their home
address and potentially endanger them and their families."
In practice, this bill would authorize individual counties to
create their own property record confidentiality programs for
certain current and former public safety officials. Such a
program would require that, upon request, the name of an
eligible official be redacted from the publicly-available
records (including data sets available for sale) of the
official's principle residence managed by the county. The
county would retain the flexibility to set a cost-recovery fee
for the service. Counties' own internal records would not be
affected, nor would specified governmental agencies be precluded
from accessing the records in unredacted form.
The public safety officials eligible for the protections of this
bill are current and former: 1) employees of federal, state or
local law enforcement agencies (except clerical and
non-operational staff); 2) judges, magistrates, court
commissioners and referees; 3) criminal attorneys with a
federal, state, or local prosecutorial or defense agency; 4)
employees of a federal, state, or local prosecutorial or defense
agency routinely in contact with suspects; and, 5) employees of
a federal, state, or local agency responsible for inmates, or
those acting as a custodian, probation or parole officer.
Elected officials are explicitly excluded from the program.
The bill gives public safety officials the right to seek
injunctive or declarative relief in the case of a violation,
along with court costs, attorneys' fees, and a fine not to
exceed $1,000 if a court-ordered injunction is violated. The
official may also seek treble damages of at least $4,000 if
their confidential information is traded or sold. Counties
exercising reasonable care may not be held civilly liable for an
unintentional disclosure. The bill also deems that a county has
taken reasonable care if it runs an index search for the
requester's name and redacts only those documents identified by
that search - a global search of all records is not required.
According to supporters, the need for this bill lies in the
increased danger to law enforcement officials because of the
accessibility of personal information about that official, which
might allow a dangerous person to find and target them.
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According to the Los Angeles City Attorney, "between 2003 and
2008, federal prosecutors and judges experienced an over 50%
increase in the number of threats and harassing communications.
Just last December, an anonymous internet group publicized the
home addresses of more than one dozen members of the Los Angeles
Police Department's command staff. Prosecutors, judges, law
enforcement, and others place their own safety at risk to
protect our local communities, yet, everyday, their personal
home addresses remain accessible to anyone."
There is some precedent for legislative action to protect the
personal information of public safety officials. As the Los
Angeles Police Protective League (LAPPL) points out, "California
law allows certain officials to have their Department of Motor
Vehicles records shielded from public disclosure. Current law
also provides recourse if a public safety official's address is
posted on the internet."
This bill applies to public property records containing the
address of the requester's principle residence, and therefore
would affect public records kept by both county recorders and
county assessors.
Opponents of this bill argue that there are several different
problems and issues arising from this bill in its current form.
According to the California Land Title Association (CLTA),
"İt]he sponsors of AB 2299 have an inaccurate understanding of
how county recorder records are held, maintained, and shared
with interested parties. Unlike traditional 'databases' held by
many governmental and private companies and individuals, county
recorders do NOT hold scanned documents in a pure data format
that can be queried, sorted, cloaked, and manipulated any number
of ways within the database program. Thus, AB 2299 is
difficult, if not impossible, to implement?Because documents
will often contain information that is NOT discoverable through
a query of the indexing process, often it takes a manual search
performed by a human being to discover if the document has
information of interest?"
It should be noted that recent amendments taken by the author to
narrow the required search to a name query of the index may
alleviate this problem somewhat. The possibility of shifting
the redaction requirement from the name to the principle address
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may also make a global query of all documents more technically
feasible.
Another issue is the impact of redaction on the legal doctrine
of 'constructive notice', which is an integral part of
California's real property law regime. According to the County
Recorders' Association of California, "County records throughout
the State uphold the public's right to access and view land
records?İT]he established legal doctrine of 'constructive
notice' ensurİes] that everyone knows about and has access to
the records we maintain related to real estate transactions?AB
2299 would establish a class of individuals who could hide their
interest in real property. By hiding their information
individuals will be able to conduct business outside of the
public's view resulting in different classes of property owners
and the demise of California's constructive notice property
rights system."
CLTA contends that this measure would complicate real estate
transactions involving covered officials. "İI]t is likely that
all real estate transactions relating to 'public safety
officials' will now require lengthy and costly manual title
searches in order to provide the public safety official seeking
to buy, sell, transfer, or refinance real property?However, if
all county recorder records are cloaked so that this public
safety official information disappears, we as an industry will
now have to manually and painstakingly recreate all of the
public records related to the public safety official, as well as
manually check with the Franchise Tax Board and California Child
Support Collection Agency to make sure that they do not owe
money to any parties?In addition, if county recorders are unable
to maintain county recorder records as they currently do, this
may have a negative impact on ALL consumers who use county
recorder records to conduct ordinary real estate transactions."
The California Newspaper Publishers Association expressed
concerns about how a confidentiality program might be used to
perpetrate fraud. "AB 2299 would bar journalists and the public
from investigating the situation unfolding in Los Angeles where
the assessor is accused of collecting campaign contributions
from property owners in exchange for lowered property
assessments. The bill would completely insulate and protect any
public safety official who might be involved in this type of
scheme and would eradicate any public scrutiny, oversight or
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accountability."
The following are examples of recent legislation closely related
to information privacy and public officials:
AB 1813 (Lieu), Chapter 194, Statutes of 2010, included the
information provided to cellular phone applications in the
information that a public official may ask to be removed from
the Internet and to expand the definition of peace officer
within the definition of public official.
AB 32 (Lieu), Chapter 403, Statutes of 2009, expanded current
law relative to the personal information of an elected or
appointed official by allowing an agent of the public official
to make the written demand for the removal of the Internet
posting of the official's home address or telephone number.
AB 1595 (Evans), Chapter 343, Statutes of 2005, allowed for
specified elected or appointed officials to obtain an injunction
against any person or entity that publicly posts on the Internet
the home address or telephone number of that official, and
allows for damages if this disclosure was made with intent to
cause bodily harm.
Support arguments: According to the Los Angeles City Attorney,
"İe]xisting privacy protections fail to keep property records of
police officers, judges, and prosecutors confidential. AB 2299
will close this loophole by enabling counties to prevent the
release of these property records. Most importantly, AB 2299
will provide prosecutors and other officials with an added
safeguard against personal intimidation, threats, and dangers
arising from the release of their home addresses."
Opposition arguments: According to the Santa Clara County
Assessor, "?the proposed legislation would be cost prohibitive
to implement and a nightmare to administer?.İP]ublic
accessibility of assessment roll data ?İare] used for legitimate
business and government purposes such as liens and debt
collection?tracking down deadbeat dads and locating slum
lords?.It is likely this law would be abused to evade child
support payments and other financial responsibilities."
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958
AB 2299
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