BILL ANALYSIS Ó
AB 2404
Page 1
Date of Hearing: April 22, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2404 (Eggman) - As Amended: March 28, 2014
As Proposed to be Amended in Committee
SUMMARY : Requires the Department of Justice (DOJ) to
disseminate an applicant's sex offender registration status
whenever DOJ furnishes state or federal summary criminal history
information to specified entities as a result of an employment,
licensing, or certification application.
EXISTING LAW :
1)Requires DOJ to maintain state summary criminal history
information. Defines "state summary criminal history
information" as the master record of information compiled by
the Attorney General pertaining to the identification and
criminal history of any person, such as name, date of birth,
physical description, fingerprints, photographs, date of
arrests, arresting agencies and booking numbers, charges,
dispositions, and similar data about the person. Provides
that state summary criminal history information does not refer
to records and data compiled by criminal justice agencies
other than the Attorney General, nor does it refer to records
of complaints to or investigations conducted by, or records of
intelligence information or security procedures of, the office
of the Attorney General and DOJ. (Pen. Code, § 11105, subd.
(a).)
2)Requires DOJ to disseminate the following information whenever
it furnishes state or federal summary criminal history
information as the result of an application by an authorized
entity for peace officer employment or certification purposes:
Every conviction rendered against the applicant; every arrest
for an offense for which the applicant is presently awaiting
trial, whether the applicant is incarcerated or has been
released on bail or on his or her own recognizance pending
trial; every arrest or detention, except for an arrest or
detention resulting in an exoneration, provided, however, that
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where the records of the Department of Justice do not contain
a disposition for the arrest, the Department of Justice first
makes a genuine effort to determine the disposition of the
arrest; every successful diversion; and every date and agency
name associated with all retained peace officer or non-sworn
law enforcement agency employee pre-employment criminal
offender record information search requests. (Pen. Code, §
11105, subd. (k).)
3)Requires DOJ to disseminate the following information whenever
it furnishes state or federal summary criminal history
information as the result of an application by a criminal
justice agency, as defined, for criminal justice employment,
licensing or certification purposes: Every conviction
rendered against the applicant; every arrest for an offense
for which the applicant is presently awaiting trial, whether
the applicant is incarcerated or has been released on bail or
on his or her own recognizance pending trial; every arrest for
an offense for which DOJ records do not contain a disposition
or did not result in a conviction, provided that DOJ first
makes a genuine effort to determine the disposition of the
arrest. However, information concerning an arrest shall not be
disclosed if DOJ records indicate or if the genuine effort
reveals that the subject was exonerated, successfully
completed a diversion or deferred entry of judgment program,
or the arrest was deemed a detention; every date and agency
name associated with all retained peace officer or non-sworn
law enforcement agency employee pre-employment criminal
offender record information search requests. (Pen. Code, §
11105, subd. (l).)
4)Requires DOJ to disseminate the following information whenever
it furnishes state or federal summary criminal history
information as the result of an application by an authorized
care facility, as described, for employment, licensing or
certification purposes: Every conviction of an offense
rendered against the applicant; every arrest for an offense
for which the applicant is presently awaiting trial, whether
the applicant is incarcerated or has been released on bail or
on his or her own recognizance pending trial; and every arrest
for an offense for which the Department of Social Services is
required, as specified, to determine if an applicant has been
arrested. However, if DOJ records do not contain a disposition
for an arrest, DOJ shall first make a genuine effort to
determine the disposition of the arrest. (Pen. Code, § 11105,
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subd. (m).)
5)Requires DOJ to disseminate the following information whenever
it furnishes state or federal summary criminal history
information as the result of an application by an entity not
otherwise defined as provided, or by a transportation company,
or as otherwise provided, for employment, licensing or
certification purposes: Every conviction rendered against the
applicant and every arrest for an offense for which the
applicant is presently awaiting trial, whether the applicant
is incarcerated or has been released on bail or on his or her
own recognizance pending trial. (Pen. Code, § 11105, subd.
(p).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "The background
checks performed as a routine part of vetting candidates for
many positions, volunteer an [sic] otherwise, are an important
part of ensuring the public's safety. There exists a dangerous
loophole that subverts the efficacy of those background
checks. This is a simple, clarifying fix that ensures that
necessary criminal history information is reported, and
reported clearly."
2)Case Law Regarding Summary Criminal History Information :
Access to summary criminal history information is prohibited
generally, unless otherwise authorized by law. "The state
constitutional right of privacy extends to protect defendants
from unauthorized disclosure of criminal history records.
[Citation.] These records are compiled without the consent of
the subjects and disseminated without their knowledge.
Therefore, ? custodians of the records, have a duty to 'resist
attempts at unauthorized disclosure and the person who is the
subject of the record is entitled to expect that his right
will be thus asserted.'" (Westbrook v. County of Los Angeles
(1994) 27 Cal.App.4th 157, 165-66.)
In Central Valley Chapter of the 7th Step Foundation v. Younger,
(Alameda Superior Court No. 497394-6), and the related case,
Gresher v. Deukmejian, plaintiffs filed a lawsuit against DOJ,
its Bureau of Criminal Identification, and various officials
including the Attorney General challenging the policies of
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disseminating summary criminal history information to
nonexempt agencies and organizations. The lower court granted
in part and denied in part plaintiffs' requests for
declarative and injunctive relief. Defendants and plaintiffs
appealed.
The Court of Appeal found unlawful some of the challenged
policies. The court reasoned that the dissemination of arrest
record information impinges on the fundamental privacy rights
of Californians, thus such dissemination of information must
serve a compelling state interest. (Central Valley v.
Younger, supra, 214 Cal.App.3d at p. 151.) The court
concluded that dissemination regarding arrests not resulting
in convictions to nonexempt employers and licensing agents for
employment, licensing, or certification purposes is not
justified by a compelling state interest. Furthermore, there
is a substantial governmental interest in insuring that the
record of an arrest or detention is complete, therefore DOJ
may not disseminate incomplete information as to an arrest or
detention without first making a genuine attempt to determine
if the arrestee successfully completed diversion or was
exonerated. (Id. at p. 152.) The court also concluded that
the exceptions provided in Labor Code section 432.7 for those
seeking employment as peace officers and other classes of
sensitive employment serve a compelling state interest. (Id.)
3)Prior Legislation : AB 2343 (Torres), Chapter 256, Statutes of
2012, required that when state or federal summary criminal
history information is furnished to an agency, organization or
individual, a copy of the information be provided to the
person about whom the information relates if there is an
adverse employment, licensing, or certification decision.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
None
Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744
AB 2404
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