BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2013-2014 Regular Session AB 1660 (Alejo) As Amended April 24, 2014 Hearing Date: June 10, 2014 Fiscal: No Urgency: No TMW SUBJECT Driver's Licenses: Nondiscrimination DESCRIPTION Existing law requires the Department of Motor Vehicles to issue a driver's license to a person who signs an affidavit attesting that he or she is ineligible for a social security account number and unable to submit proof that his or her presence in the United States is authorized under federal law. Existing law also prohibits discrimination under the Unruh Civil Rights Act against an individual because he or she holds or presents a driver's license issued under these provisions. This bill would also prohibit this discrimination under the Fair Employment and Housing Act, prohibit a governmental authority from discriminating against that individual, and clarify that the person's affidavit is exempt from disclosure under the California Public Records Act. BACKGROUND In response to the federal 9/11 Commission's recommendation that federal standards be established for issuing driver's licenses and other sources of identification, the federal REAL ID Act of 2005 was enacted to provide minimum security standards for the issuance of sources of identification, including enhanced security features on a driver's license or identification card and a requirement for applicants to provide their social security number, birth certificate, and proof of legal presence in the United States. The REAL ID Act prohibits federal agencies from accepting documents for official purposes (i.e., boarding an airplane or entering a federal building) unless the (more) AB 1660 (Alejo) Page 2 of ? United States Department of Homeland Security (DHS) has determined that the state meets the minimum standards. As of December 20, 2013, 21 states and U.S. territories have met the minimum standards required under the REAL ID Act, and 20 states, including California, and territories have been granted an extension for reaching full compliance. Twelve states and territories are noncompliant. Last year, AB 60 (Alejo, Ch. 524, Stats. 2013) authorized the Department of Motor Vehicles (DMV) to issue an original driver's license to a person who is unable to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to DMV, of his or her identity and California residency. In addition, AB 60 prohibited, pursuant to the Unruh Civil Rights Act, discrimination against an individual who holds or presents that driver's license and provided that the affidavit used to obtain that driver's license is not a disclosable public record. This bill would clarify that a person who holds or presents that driver's license is also protected from employment and housing discrimination under the Fair Employment and Housing Act and from discrimination by a state or local government agency, and that the affidavit submitted to obtain that driver's license is exempt from public disclosure under the California Public Records Act. CHANGES TO EXISTING LAW 1. Existing law requires an application for a California driver's license to contain the applicant's social security account number and any other number or identifier determined to be appropriate by the Department of Motor Vehicles (DMV). (Veh. Code Sec. 12801(a).) Existing law provides that an applicant who provides satisfactory proof that his or her presence in the United States is authorized under federal law, but who is not eligible for a social security account number, is eligible to receive an original driver's license if he or she meets all other qualifications for licensure. (Veh. Code Sec. 12801(b).) Existing law further provides that an applicant who is unable to provide satisfactory proof that his or her presence in the AB 1660 (Alejo) Page 3 of ? United States is authorized under federal law may sign an affidavit attesting that he or she is both ineligible for a social security account number and unable to submit satisfactory proof that his or her presence in the United States is authorized under federal law. The submission of this affidavit shall be accepted by the DMV in lieu of a social security number, and this affidavit is not a public record. (Veh. Code Sec. 12801(c).) Existing law , the California Constitution, declares the people's right to transparency in government. ("The people have the right of access to information concerning the conduct of the people's business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny....") (Cal. Const., art. I, Sec. 3.) Existing law , the California Public Records Act (CPRA), governs the disclosure of information collected and maintained by public agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public records are accessible to the public upon request, unless the record requested is exempt from public disclosure. (Gov. Code Sec. 6254.) There are 30 general categories of documents or information that are exempt from disclosure, essentially due to the character of the information, and unless it is shown that the public's interest in disclosure outweighs the public's interest in non-disclosure of the information, the exempt information may be withheld by the public agency with custody of the information. Existing law provides that except with respect to public records exempt from disclosure by express provisions of law, each state or local agency, upon a request for a copy of records that reasonably describes an identifiable record or records, is required to make the records promptly available to any person upon payment of fees covering direct costs of duplication, or a statutory fee if applicable. (Gov. Code Sec. 6253(b).) This bill would clarify that the driver's license applicant's affidavit submitted in lieu of a social security number is private and confidential, and is exempt from disclosure under the California Public Records Act (CPRA). Further, this bill would prohibit disclosure of the affidavit by the DMV and provide that the affidavit shall be used only for the purpose of processing a driver's license application. AB 1660 (Alejo) Page 4 of ? 2. Existing law requires the DMV to issue an original driver's license to a person who is unable to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the DMV of his or her identity and California residency. The DMV is required to accept various types of documentation for this purpose, as specified. (Veh. Code Sec. 12801.9(a).) Existing law provides that discrimination against an individual, who is unable to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law but who has qualified for licensure and has received a license issued by the DMV, because he or she holds or presents that driver's license shall be a violation of law, including, but not limited to, a violation of the Unruh Civil Rights Act. (Veh. Code Sec. 12801.9(h).) Existing law provides that information collected by the DMV in connection with the driver's license described above is not a public record and shall not be disclosed by the DMV except as required by law. (Veh. Code Sec. 12801.9(i).) Existing law prohibits the use of a driver's license to consider an individual's citizenship or immigration status as a basis for a criminal investigation, arrest, or detention. (Veh. Code Sec. 12801.9(j).) This bill would clarify that it shall be a violation of the Unruh Civil Rights Act for a business establishment to discriminate against that person. This bill would also make it a violation of the California Fair Employment and Housing Act (FEHA) for an employer or other covered person or entity to discriminate against a person because he or she holds or presents the above driver's license. This bill would clarify that these provisions do not alter an employer's rights or obligations under federal law regarding obtaining documentation evidencing identity and authorization for employment, and an action taken by an employer that is required under federal immigration law is not a violation. This bill would specify that driver's license information AB 1660 (Alejo) Page 5 of ? obtained by an employer shall be treated as private and confidential, is exempt from disclosure under the CPRA, and shall not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive. This bill would make it a violation for a state or local governmental authority, agent, or person acting on behalf of a state or local governmental authority, or a program or activity that is funded directly or receives financial assistance from the state to discriminate against an individual because he or she holds or presents the above driver's license. This bill would clarify that information collected by the DMV for issuance of the above-described driver's license is private and confidential, and is exempt from disclosure under the CPRA, and shall not be disclosed by the DMV or used for any purpose other than processing a driver's license application, except as required for the issuance or renewal of a driver's license. This bill would also clarify that the above-described driver's license shall not be used as evidence of the holder's or presenter's citizenship or immigration status, and shall not be used as a basis for a criminal investigation, arrest, or detention in circumstances where a person whose driver's license was not issued using the alternative documentation described above would not be criminally investigated, arrested, or detained. COMMENT 1. Stated need for the bill The author writes: This bill clarifies several aspects of AB 60 and adds language to protect information collected during the AB 60 application process. AB 60 [(Alejo, Ch. 524, Stats. 2013)] allows non-citizens to apply for a California driver's license. In order to comply with federal law, under the Federal Real ID Act of 2005, AB 60 specifies that a driver's license issued to a non-citizen applicant must have certain recognizable features. In order AB 1660 (Alejo) Page 6 of ? to prevent and penalize discrimination, certain provisions were added to AB 60 to make clear that discrimination based on the recognizable feature is a violation of the Unruh Civil Rights Act and other provisions of state law. Because the Unruh Civil Rights Act only applies to private sector discrimination, it is unclear whether the provisions of the bill extend to discrimination by a public actor. AB 1660 clarifies that it does. In addition, AB 1660 clarifies that a business who is in compliance with federal law is not violating state discrimination laws, and that information collected by the [California Department of Motor Vehicles (DMV)] pursuant to the application process is exempt from the California Public Records Act and can only be used for the purposes of processing a driver's license. 2. Clarifying prohibition of discrimination In order to conform to the requirements of the federal REAL ID Act of 2005, AB 60 requires the DMV to include a recognizable feature on the front of a driver's license obtained through the affidavit process, as well as the statement: "This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits." Accordingly, a person holding or presenting this driver's license will presumably make any person reading the license aware that the license holder is ineligible to receive a social security account and unable to provide proof that the license holder is legally present in the United States. Notably, driver's licenses are frequently requested when an individual must prove he or she is of legal age to obtain goods or services and to establish his or her identity. Accordingly, AB 60 prohibited discrimination pursuant to the Unruh Civil Rights Act and discrimination by a governmental authority against a person holding or presenting a driver's license obtained through the affidavit process. The Unruh Civil Rights Act (Act) provides that all persons in California are free and equal, and regardless of a person's sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation, everyone is entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. (Civ. Code Sec. 51.) Arguably, AB 1660 (Alejo) Page 7 of ? AB 60 was intended to prohibit all discrimination against a person holding or presenting a driver's license obtained through the affidavit process, not just in business establishments. Accordingly, this bill would clarify that discrimination of that person is also prohibited under the Fair Employment and Housing Act, which prohibits discrimination in hiring and employment practices, as well as in rental housing and home ownership practices. (Gov. Code Sec. 12900 et seq.) This bill would also clarify that an individual presenting or holding that driver's license is protected from discrimination by a local or state governmental authority or a program or activity that is funded directly or receives financial assistance from the state. These clarifications are necessary to ensure that individuals who qualify for the driver's license provided under existing law are treated equally when he or she presents that driver's license to obtain employment, housing, government services, or services at any business in California. As noted by a coalition of agricultural employment groups in support, this bill provides an appropriate balance between individual rights and employer obligations under federal law and removes unnecessary duplication and ambiguity in the law. This bill would provide that it would not alter an employer's rights or obligations under federal law regarding obtaining documentation evidencing identity and authorization for employment, and any action taken by an employer required under the federal Immigration and Nationality Act would not be a violation. 3. Clarification of information exempt from public disclosure Existing law provides that the affidavit, which is submitted and signed by an individual attesting that he or she is in ineligible for a social security account and unable to submit satisfactory proof that his or her presence in the United States is authorized under federal law, is not a public record. This bill would clarify that the affidavit is private, confidential, and exempt from disclosure otherwise required by the California Public Records Act (CPRA). This bill would also specify that the affidavit shall not be disclosed by the DMV and shall be used only for the purpose of processing a driver's license application. The author asserts that this bill is clarifying in nature and is intended to preempt a potential problem that could occur if the applicant's information collected by the DMV is subsequently AB 1660 (Alejo) Page 8 of ? released for purposes not associated with the driver's license application. Indeed, the language of AB 60 may provide a loophole for the release of the applicant's information because, although it provides that the applicant's affidavit is not a public record, it does not specify that the information collected shall not be disclosed by the DMV or shall only be used for the purpose of processing a driver's license. As such, the applicant's information could be disclosed to any local, state, or federal agency for purposes not intended by the Legislature. To address this problem, this bill will specifically exempt from public disclosure under the CPRA the applicant's affidavit, and prohibit the release of the affidavit by the DMV to any public or private requestor. 4. Concerns raised regarding affidavit requirement The American Civil Liberties Union of California (ACLU), in support if amended, argues that "[a]s written, AB 60 requires applicants to declare that they are both ineligible for a Social Security Number (SSN) and that they are unable to submit proof of authorized presence in the U.S. The affidavit requirement in AB 60 is inaccurate because some undocumented individuals actually have a valid SSN. We are concerned that the affidavit, as currently written, could lead to attempts to use AB 60 licenses against individuals in immigration proceedings." The author states that he is working with the ACLU and the DMV to craft an appropriate driver's license application form that does not require the applicant to indicate the method of documentation used by the applicant. In this way, the applicant, who qualifies for the AB 60 driver's license but does not have written authorization for his or her presence in the United States, would be protected from an attempt by state or federal law enforcement to use the driver's license application maintained by the DMV in connection with subsequent immigration proceedings. Support : Agricultural Council of California; California Association of Nurseries and Garden Centers; California Association of Winegrape Growers; California Chamber of Commerce; California Cotton Ginners Association; California Cotton Growers Association; California Grain and Feed Association; California Grape and Tree Fruit League; California Landscape Contractors Association; California Seed Association; California State Floral Association; California Dry Bean Association; California Pear Growers Association; California AB 1660 (Alejo) Page 9 of ? Farm Bureau Federation; Coalition for Humane Immigrant Rights of Los Angeles; Pacific Egg and Poultry Association; San Jose Silicon Valley Chamber of Commerce; Ventura County Agricultural Association; Western Agricultural Processors Association; Western Growers Association Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known Prior Legislation : AB 60 (Alejo, Ch. 524, Stats. 2013) See Background; Comments 1, 2, 3, and 4. Prior Vote : Assembly Floor (Ayes 50, Noes 17) Assembly Committee on Judiciary (Ayes 7, Noes 3) **************