BILL NUMBER: AB 1442 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 25, 2014
INTRODUCED BY Assembly Member Gatto
JANUARY 6, 2014
An act to amend Sections 1798.3, 1798.14, 1798.17,
1798.18, and 1798.19 , and 1798.53
of the Civil Code, relating to the Information Practices
Act of 1977.
LEGISLATIVE COUNSEL'S DIGEST
AB 1442, as amended, Gatto. The Information Practices Act of 1977:
local government.
The Information Practices Act of 1977 prescribes
requirements on state agencies for the maintenance of personal
information, as defined, and restricts a state agency from disclosing
personal information contained in its records, as specified. The act
requires each state agency to maintain in its
records only personal information that is relevant and necessary to
accomplish a purpose of the agency required or authorized by the
California Constitution or statute or mandated by the federal
government. The act makes a person who willfully requests or
obtains a record from an agency under false pretenses or who
intentionally discloses specific information under certain
circumstances guilty of a misdemeanor. The act provides that an
intentional violation of its provisions by an officer or employee of
an agency constitutes cause for discipline, including termination of
employment. The act also provides a civil action against an agency
for specified failures under the act. The act prohibits an individual'
s name and address from being distributed for commercial purposes, as
specified, unless specifically authorized by law.
This bill would expand the definition of "agency" to include local
governmental entities.
The
This bill would generally require an agency
expand that restriction on the maintenance of personal
information to apply to a local agency, and would require a state or
local agency to destroy personal information
maintained in accordance with the act when the state
or local agency determines the personal information
it is no longer relevant and necessary to
accomplish its purpose. The bill would establish special provisions
for a Kindergarten and grades 1 to 12, inclusive, school district
regarding the notification of students, parents, and guardians
if it considers a program to gather or maintain student
personal information in its records, restrictions on the gathering
and maintenance of information gathered from social media,
as defined, and the destruction and parental
notification for of personal information
gathered from social media on students maintained by the
district.
By expanding the duties of local officials and expanding
the definition of a crime, officials, this bill
would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1798.3 of the Civil Code is amended to read:
1798.3. As used in this chapter:
(a) The term "personal "Personal
information" means any information that is maintained by an agency
that identifies or describes an individual, including, but not
limited to, his or her name, social security number, physical
description, home address, home telephone number, education,
financial matters, and medical or employment history. It includes
statements made by, or attributed to, the individual.
(b) The term "agency" "Agency"
means every state or local office, officer,
department, division, bureau, board, commission, or other state
or local agency, except that the term
agency "agency " shall not include:
(1) The California Legislature.
(2) Any agency established under Article VI of the California
Constitution.
(3) The State Compensation Insurance Fund, except as to any
records which that contain personal
information about the employees of the State Compensation Insurance
Fund.
(4) A local agency, as defined in subdivision (a) of Section 6252
of the Government Code.
(c) The term "disclose" "Disclose"
means to disclose, release, transfer, disseminate, or otherwise
communicate all or any part of any record orally, in writing, or by
electronic or any other means to any person or entity.
(d) The term "individual" "Individual"
means a natural person.
(e) The term "maintain" "Maintain"
includes maintain, acquire, use, or disclose.
(f) The term "person" "Person"
means any natural person, corporation, partnership, limited
liability company, firm, or association.
(g) The term "record" "Record" means
any file or grouping of information about an individual that is
maintained by an agency by reference to an identifying particular
such as the individual's name, photograph, finger or voiceprint, or a
number or symbol assigned to the individual.
(h) The term "system "System of
records" means one or more records, which pertain to one or more
individuals, which is maintained by any agency, from which
information is retrieved by the name of an individual or by some
identifying number, symbol symbol, or
other identifying particular assigned to the individual.
(i) The term "governmental "Governmental
entity," except as used in Section 1798.26, means any branch of
the federal government or of the local government.
(j) The term "commercial "Commercial
purpose" means any purpose which has financial gain as a
major objective. It does not include the gathering or dissemination
of newsworthy facts by a publisher or broadcaster.
(k) The term "regulatory "Regulatory
agency" means the Department of Business Oversight, the Department
of Insurance, the Bureau of Real Estate, and agencies of the United
States or of any other state responsible for regulating financial
institutions.
(l) "Social media" means an electronic service or account, or
electronic content, including, but not limited to, videos, still
photographs, blogs, video blogs, podcasts, instant and text messages,
email, online services or accounts, or Internet Web site profiles or
locations.
SEC. 2. Section 1798.14 of the Civil Code is amended to read:
1798.14. (a) Nothwithstanding the exception established in
paragraph (4) of subdivision (b) of Section 1798.3, as used in this
section, "agency" includes a local agency, as defined in subdivision
(a) of Section 6252 of the Government Code.
(b) (1) Each agency
shall maintain in its records only personal information that is
relevant and necessary to accomplish a purpose of the agency required
or authorized by the California Constitution, statute, ordinance, or
mandated by the federal government, and, except as provided in
subdivision (b), subdivisions (c) and (d),
shall destroy the personal information when the agency
determines the personal information is no longer relevant and
necessary to accomplish that purpose.
(2) This subdivision does not apply to official records recorded
in the office of a county recorder.
(c) A school district for kindergarten or grades 1 to 12,
inclusive, that considers a program to gather or maintain in its
records personal information on any student enrolled in the school
district shall notify students, parents, and guardians and provide an
opportunity for public comment prior to the adoption of such a
program.
(b)
(d) A school district for kindergarten or grades 1 to
12, inclusive, that gathers and maintains or
maintains, or that contracts to gather or maintain in its
records personal information gathered from social media on
a student enrolled in the school district in
shall do the following:
(1) Gather or maintain only information that was made publicly
accessible, not to include either:
(A) Information that was reposted or otherwise made available by
another party without the express consent of the original author.
(B) Any secondary information, including, but not limited to,
geolocation information, derived from content posted to social media,
unless that secondary information itself intentionally was made
publicly accessible.
(2) Provide students with access to any personal information about
the student gathered or maintained by the district and obtained
through social media, and the opportunity to correct or delete
erroneous information or information gathered or maintained in
violation of paragraph (1).
(1)
(3) Destroy personal information gathered from
social media maintained in its records within one year of a
student turning 18 years of age, or within one year after the student
is no longer enrolled in the school district, whichever is first.
(2)
(4) Notify each parent or guardian of the student that
personal information is being gathered from social media
and that any information maintained in its records with regard to the
student shall be destroyed in accordance with paragraph
(1). (3).
(5) If the school district contracts with a third party to gather
or maintain in the records of the third party personal information on
a student enrolled in the school district, require the third party
to hold all student personal information strictly confidential and
prohibit it from using that information for its own purposes, selling
the information, or sharing the information with any other entity
unless required to do so by law.
SEC. 3. Section 1798.17 of the Civil Code is
amended to read:
1798.17. Each agency shall provide on or with any form used to
collect personal information from individuals the notice specified in
this section. When contact with the individual is of a regularly
recurring nature, an initial notice followed by a periodic notice of
not more than one-year intervals shall satisfy this requirement. This
requirement is also satisfied by notification to individuals of the
availability of the notice in annual tax-related pamphlets or
booklets provided for them. The notice shall include all of the
following:
(a) The name of the agency and the division within the agency that
is requesting the information.
(b) The title, business address, and telephone number of the
agency official who is responsible for the system of records and who
shall, upon request, inform an individual regarding the location of
his or her records and the categories of any persons who use the
information in those records.
(c) The authority, whether granted by statute, regulation,
executive order, or ordinance that authorizes the maintenance of the
information.
(d) With respect to each item of information, whether submission
of such information is mandatory or voluntary.
(e) The consequences, if any, of not providing all or any part of
the requested information.
(f) The principal purpose or purposes within the agency for which
the information is to be used.
(g) Any known or foreseeable disclosures that may be made of the
information pursuant to subdivision (e) or (f) of Section 1798.24.
(h) The individual's right of access to records containing
personal information that are maintained by the agency.
This section does not apply to any enforcement document issued by
an employee of a law enforcement agency in the performance of his or
her duties wherein the violator is provided an exact copy of the
document, or to accident reports whereby the parties of interest may
obtain a copy of the report pursuant to Section 20012 of the Vehicle
Code.
The notice required by this section does not apply to agency
requirements for an individual to provide his or her name,
identifying number, photograph, address, or similar identifying
information, if this information is used only for the purpose of
identification and communication with the individual by the agency,
except that requirements for an individual's social security number
shall conform with the provisions of the federal Privacy Act of 1974
(Public Law 93-579).
SEC. 4. Section 1798.18 of the Civil Code is
amended to read:
1798.18. (a) Each agency shall maintain all records, to the
maximum extent possible, with accuracy, relevance, timeliness, and
completeness.
(b) That standard need not be met except when those records are
used to make any determination about the individual. When an agency
transfers a record outside of state or local government, it shall
correct, update, withhold, or delete any portion of the record that
it knows or has reason to believe is inaccurate or untimely.
SEC. 5. SEC. 3. Section 1798.19 of
the Civil Code is amended to read:
1798.19. Each agency, when it provides by contract for the
operation or maintenance of records containing personal information
to accomplish an agency function, shall cause, consistent with its
authority, the requirements of this chapter to be
applied to those records. For purposes of Article 10 (commencing with
Section 1798.55), any contractor and any employee of the contractor,
if the contract is agreed to on or after July 1, 1978, shall be
considered to be an employee of an agency. Except as provided in
Section 1798.14, local government functions mandated by the state
are not deemed agency functions within the meaning of this section.
SEC. 6. Section 1798.53 of the Civil Code is
amended to read:
1798.53. (a) Any person, other than an employee of the state or
of a local government agency acting solely in his or her official
capacity, who intentionally discloses information, not otherwise
public, which they know or should reasonably know was obtained from
personal information maintained by an agency or from "records" within
a "system of records" (as these terms are defined in the federal
Privacy Act of 1974 (5 U.S.C. Sec. 552a)) maintained by a federal
government agency, shall be subject to a civil action, for invasion
of privacy, by the individual to whom the information pertains.
(b) In any successful action brought under this section, the
complainant, in addition to any special or general damages awarded,
shall be awarded a minimum of two thousand five hundred dollars
($2,500) in exemplary damages as well as attorney's fees and other
litigation costs reasonably incurred in the suit.
(c) The right, remedy, and cause of action set forth in this
section shall be nonexclusive and is in addition to all other rights,
remedies, and causes of action for invasion of privacy, inherent in
Section 1 of Article I of the California Constitution.
SEC. 7. No reimbursement is required by this
act pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.
SEC. 4. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.