BILL ANALYSIS Ó
AB 134
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Date of Hearing: April 23, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 134 (Logue and Gray) - As Amended: April 17, 2013
SUBJECT : PUBLIC RECORDS: CONCEALED WEAPONS LICENSES
KEY ISSUE : SHOULD DECISIONS BY PUBLIC OFFICIALS REGARDING THE
ISSUANCE OF CONCEALED WEAPONS PERMITS BE EXEMPTED FROM
CALIFORNIA'S PUBLIC RECORD ACT?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
It is illegal to carry a concealed weapon without a permit. In
order to obtain a permit, one can apply to his or her county
sheriff or police chief. This small number of public officials
are the only ones authorized to grant a permit - and their
discretion over the permits is broad, involving questions of
"good moral character" and "good cause." Like other
governmental license decisions, records regarding these
decisions are currently subject to the public records act. This
bill would exempt the name, address and telephone number of
applicants and licensees from disclosure under the public
records act. Supporters, mostly representing the sheriffs and
police chiefs empowered with authority over the licenses, argue
that this exemption is needed to protect concealed weapons
license holders from potential harm. Opponents contend that the
public records act reflects a core principle of transparency in
a democracy, and note that these permits are highly-prized
because they give the holder rights others do not have. Because
they have this value, opponents contend, official power over
these permits can be a corruptive influence, which the public
records act is intended to deter and reveal.
SUMMARY : Exempts information contained in applications and
licenses to carry concealed weapons from public records laws.
Specifically, this bill exempts from the California Public
Records Act the names, addresses, and telephone numbers of
licensees and applicants set forth in documents regarding
licenses to carry firearms.
EXISTING LAW :
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1)It is a crime for a person to carry a firearm concealed on his
person or in his vehicle without a permit. (Penal Code
section 25400.)
2)Authorizes a county sheriff or a city police chief to issue a
permit to carry a concealed weapon to a county or city
resident if the person is of good moral character, there is
good cause for the issuance, and the applicant has completed a
firearm safety course. (Penal Code sections 26150, 26155,
26170, and 26215.)
3)Requires a record of the permit to be maintained in the office
of the issuing authority and with the Department of Justice.
(Penal Code sections 26220 and 26220.)
4)Requires applications for permits to include name, occupation,
residence and business address, the licensee's age, height,
weight, color of eyes and hair, and the reason for desiring a
license to carry the weapon, as well as a description of the
weapon for which the permit is sought. (Penal Code section
26175.)
5)Provides pursuant to the California Public Records Act that
all records maintained by local and state governmental
agencies are open to public inspection unless specifically
exempt. (Government Code sections 6250 et seq.)
6)Defines "public records" to include any writing containing
information relating to the conduct of the public's business
prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics.
(Section 6252(e).) The records of weapons permit holders
maintained by the sheriff are public records. (62 Ops. Cal.
Atty. Gen. 402.)
7)Information in license applications which indicates when or
where applicants are vulnerable to attack or concerns
applicants' medical or psychological histories or family
members is exempt from disclosure under the California's
Public Records Act. (Government Code section 6254(u)(1).)
8)The home address and telephone number of prosecutors, public
defenders, peace officers, judges, court commissioners, and
magistrates that are set forth in applications for licenses or
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in licenses to carry firearms are specifically exempt from
disclosure under the California Public Records Act.
(Government Code section 6254(u)(2)and (3).)
COMMENTS : The author states the reason for the bill as follows:
"[L]aw abiding citizens who are legally licensed to carry a
concealed weapon (CCW) can be subject of having their personal
addresses and phone numbers released. This safeguard currently
exists for individuals such as judges, peace officers,
prosecutors, public defenders, etc. This bill would extend
those protections to all concealed weapons holders or
applicants."
This bill is supported by various rural county Sheriffs,
including the Modoc County Sheriff-Coroner, who states:
Disclosure of the personal information via the California
Public Records Act of those law abiding citizens applying
for, going through the required training and following the
proper procedures in order to protect themselves and their
families should not be singled out. The personal
information regarding CCW permits must be kept
confidential. Additionally, the staff hours required to
compile CPRA information requires, present quite a hardship
on our very limited and already overworked personnel.
Also in support, the Siskiyou County Sheriff-Coroner states:
The bill's provisions will limit access to the personal
information of CCW permit holders through the use of the
Public Records Act (PRA), which is critical. This bill will
definitely serve to safeguard the citizens we serve and
will protect gun owners and their families from potential
victimization wrought by disclosure of sensitive, personal
information related to their identities, work locations
and/or places of residence(s).
As you know, currently this information could be disclosed
pursuant to the filing of a PRA request. Blocking this
information and preventing wide-scale dissemination through
the internet, which has occurred in other states such as
New York, will promote public safety and protect the
constitutional rights of our citizens. I issue a
considerable amount of CCW permits in my county and my
permit holders have proven to be reliable, responsible,
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honest, law-abiding citizens. These good citizens deserve
our support and our protection.
This bill is also supported by the California Probation, Parole
and Correctional Association, and the California State Sheriffs'
Association. In support, these groups state, "AB 134 would
protect the personal information of concealed carry permit
holders and applicants while still allowing public safety
officials to have the information they need in order carry out
their duties."
In support of this bill, Crime Victims United of California
writes:
CVUC has been paying close attention to this issue and is
concerned about the developing dialog regarding concealed
weapons permits and personal information disclosure. One
major concern is over the protection of privacy for all
permit holders or applicants, regardless of occupation or
stature, particularly for victims of crime who may choose
to own a firearm for the purpose of safety and protection.
By releasing this private information, it makes it easier
for offenders to search, reveal, locate, and obtain enough
information to inflict further harm on victims.
Current Law Empowers Specified Law Enforcement Officials To Make
Decisions Regarding The Issuance of Concealed Weapons Permits,
Which Are Treated As Public Records Similar To Other
Governmental Licenses. It is a crime for a person to carry a
firearm concealed on his person or in his vehicle without a
permit. A small number of local government officials (county
sheriffs and city police chiefs) are the only officials
authorized to issue a permit to carry a concealed weapon. This
decision involves the exercise of official discretion involving
a determination whether the person is of good moral character
and there is good cause for the issuance of the license. The
county sheriff and police chiefs have "extremely broad
discretion concerning the issuance of concealed weapons
licenses." (Gifford v. City of Los Angeles (2001) 88
Cal.App.4th 801, 805.) The issuing official is required to
maintain a record of these applications and licenses, and
records regarding these official actions are considered public
records like other decisions to grant or deny a governmental
permit.
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This Bill Would Exempt Concealed Weapons License Records From
Public Disclosure. Under this bill, the names, addresses, and
telephone numbers of those who apply for a license, as well as
those granted a license, to carry a concealed firearm would no
longer be open to public scrutiny. It would therefore no longer
be known how the local officials entrusted with licensing
authority have exercised this responsibility, including whether
the volume of permits issued was unusually high or low, or how
applicants fared in their efforts to obtain a license. This
information may be important because applicants may only apply
in the county in which they live, the authority to grant permits
is tightly restricted to a few officials, and because the
discretion of these government officials is so broad.
The Principle of The Public Records Act That Governmental
Transparency Is Fundamental To Democracy. Our democratic
process relies on the notion that government should be
accountable for its actions. "In order to verify
accountability, individuals must have access to government
files. Such access permits checks against the arbitrary exercise
of official power and secrecy in the political process." (CBS,
Inc. v. Block (1986) 42 Cal.3d 646, 651.) Enacted in 1968, the
Public Records Act was an attempt to minimize the secrecy in
government. It was passed for the explicit purpose of
"increasing freedom of information by giving the public access
to information in possession of public agencies." (CBS, Inc. v.
Block (1986) 42 Cal.3d 646, 651.)
The issues raised by this bill were addressed by the California
Supreme Court more than 25 years ago in CBS, Inc. v. Block
(1986) 42 Cal.3d 646. In that case, the Los Angeles County
Sheriff refused to provide information regarding concealed
weapons permits to CBS, which had requested the records in
connection with an investigation of possible abuses. At that
time, the Orange County Sheriff had issued over 400 licenses,
while only 35 licenses had been issued in Los Angeles County.
(Id. at 654.) The Court determined that "while some of the
holders of concealed weapon licenses may prefer anonymity, it is
doubtful that such preferences outweigh the 'fundamental and
necessary' right of the public to examine the bases upon which
such licenses are issued." (Id.) Without the information
contained in those applications and licenses, the Court found
that there was "no method by which the people can ever ascertain
whether the law is being fairly and impartially applied." (Id.)
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Might This Bill Inadvertently Prevent Public Oversight Of Public
Officials Who Wrongly Deny Concealed Weapons License
Applications? As the Block case demonstrates, transparency in
official decision making may deter or reveal inappropriate or
questionable denial of concealed weapons permits.
On this point, the California Association of Federal Firearms
Licensees argues, "AB 134 will irreparably harm the right of
Californians to ascertain if their government is functioning
properly. Individuals and organizations use the information
that AB 134 would exempt from disclosure to determine if
agencies that issue licenses to carry handguns are violating the
people's Constitutional right to Equal Protection under the
law."
A California Newspaper Publishers Association argues similarly,
stating:
An example of the importance of this information as a check
on potential abuse by officials can be found in the case of
former Orange County Sheriff, Brad Gates. In the late
1980's, Gates was accused of improperly issuing concealed
weapons permits to his cronies and political supporters.
The sheriff's own records showed he issued 101 permits to
members of the Balboa Bay Club, the Lincoln Club and
various other supporters all of whom were contributors to
his political campaigns. Gates, however, also denied
permits to those he considered unfriendly even though the
stated reasons for the permits by the unfriendly applicants
were the same as those given by his campaign contributors.
Gates ultimately lost a civil rights suit filed against him
by two private investigators who challenged Gates denial of
their concealed weapon application seven times. The
taxpayers of Orange County ended up footing the bill to pay
the federal jury's award to the investigators and the legal
costs to defend Gates.
By wholly exempting from public access the very same
information that revealed the widespread abuse of authority
that occurred in Orange County, AB 134 would not only
embolden corruption but it would also serve to protect
dishonest officials from public scrutiny by eliminating one
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of the only tools to ferret out misconduct.
The California Broadcasters Association adds succinctly: "This
data is currently public for a legitimate reason: oversight of
those we have entrusted with the authority to issue these
highly-prized documents. The permits are often not easy to
acquire as they empower the holder with rights others do not
have. This value can be, and has been a corruptive influence."
These concerns are not merely theoretical; they have recently
been the subject of media reports regarding controversies that
the Sheriffs of Los Angeles, Monterey and Stanislaus counties
have made decisions about gun permit applications on the basis
of political or other considerations that may be inappropriate,
according to critics. (See Sheriff Lee Baca and the Gun-Gift
Connection, LA Weekly, Feb, 14, 2013 (available at
http://www.laweekly.com/2013-02-14/news/sheriff-lee-baca-conceale
d-weapons-permit/full/); Scrutiny For Gun Permits Gets Tighter,
San Jose Mercury News, Feb 25, 2102 (available at
http://www.mercurynews.com/
breaking-news/ci_20033908); Hard To Know If Stanislaus County
Sheriff Oks More Concealed Weapon Permits, Modesto Bee, May 24,
2010 (available at http://www.modbee.com/
2010/05/24/1179400/
hard-to-know-if-stanislaus-county.html#storylink=cpy).)
Is There Evidence Of Harm To Outweigh The Public Interest In
Transparency? The author and supporters argue that the bill is
justified by preventing the risk of harm to persons who obtain
concealed weapons permits on the theory that, in the words of
the Amador County Sheriff, this information "presents a clear
blueprint for criminals looking to steal weapons to be used for
unlawful purposes thereby jeopardizing the safety of future
crime victims as well as our law enforcement officers." Because
these records are currently public, it may be well to ask
whether there is any evidence that criminals have made public
records act requests for concealed weapons license holders or
whether the license holders have consequently been subject to
greater harm than non-license holders. The authors inform the
Committee that they do not have such evidence, and intend the
bill to be prophylactic. In response to a similar contention in
the Block case, the court dismissed as "conjectural at best,"
the assertion by the sheriff that releasing this information
would allow would-be attackers to more carefully plan their
crime against licensees and would deter those who need a license
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from making an application. "The prospect that somehow this
information in the hands of the press will increase the danger
to some licensees cannot alone support a finding in favor of
non-disclosure as to all. A mere assertion of possible
endangerment does not "clearly outweigh" the public interest in
access to these records." (42 Cal.3d 646, 652.)
REGISTERED SUPPORT / OPPOSITION :
Support
Amador County Sheriff-Coroner
El Dorado County Sheriff-Coroner
California Police Chiefs Association
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Crime Victims United of California
Glen County Sheriff-Coroner
Gun Owners of California
Modoc County Sheriff-Coroner
Riverside County Sheriff
San Bernardino County Sheriff's Department
Shasta County Sheriff-Coroner
Siskiyou County Sheriff-Coroner
Trinity County Sheriff/Coroner
Opposition
California Association of Federal Firearms Licensees
California Broadcasters Association
California Newspaper Publishers Association
Analysis Prepared by : Kevin G. Baker and Kelsey Fischer / JUD.
/ (916) 319-2334