BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 1027|
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THIRD READING
Bill No: SB 1027
Author: Hill (D), et al.
Amended: 4/21/14
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 4/8/14
AYES: Jackson, Anderson, Corbett, Lara, Leno, Monning, Vidak
SUBJECT : Booking photographs: commercial use
SOURCE : Author
DIGEST : This bill prohibits the solicitation or acceptance of
a fee to remove, connect, or modify a booking photograph, but
exempts a public entity from the prohibition.
ANALYSIS :
Existing law:
1.Declares, under the California Constitution, the people's
right to transparency in government.
2.Governs, under the California Public Records Act (CPRA), the
disclosure of information collected and maintained by public
agencies. Generally, all public records are accessible to the
public upon request, unless the record requested is exempt
from public disclosure. There are 30 general categories of
documents or information that are exempt from disclosure,
essentially due to the character of the information, and
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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.
3.Makes certain criminal record information confidential but
requires state and local law enforcement agencies to make
public specified information, including the full name,
physical description, date and time of arrest, time and date
of booking, and factual circumstances surrounding an arrest,
except to the extent that disclosure of a particular item of
information would endanger the safety of a person involved in
an investigation or would endanger the successful completion
of the investigation or a related investigation.
4.Allows, under the Information Practices Act of 1977, an
individual to inquire and be notified as to whether a public
agency maintains a record about himself/herself. Authorizes
the public agency to charge fees, if any, to an individual for
making copies of a record.
This bill:
1.Makes it an unlawful practice for any person engaged in
publishing or otherwise disseminating a booking photograph
through a print or electronic medium to solicit or accept the
payment of a fee or other consideration to remove, correct, or
modify that booking photograph.
2.Provides the following definitions:
A. "Booking photograph" means a photograph of a subject
individual taken pursuant to an arrest or other involvement
in the criminal justice system; and
B. "Subject individual" means an individual who was
arrested and had his/her booking photograph taken.
C. "Person" means a natural person, partnership, joint
venture, corporation, limited liability company, or other
entity.
1.Authorizes a public entity to charge or collect a fee to
correct, modify, or remove a booking photograph.
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2.Provides that each payment solicited or accepted in violation
of this bill constitutes a separate violation.
3.Provides that, in addition to any other sanctions, penalties,
or remedies provided by law, a subject individual who is
aggrieved by a violation of this bill's provisions may bring a
civil action in any court of competent jurisdiction against
any person in violation of this bill for damages in an amount
equal to the greater of $1,000 per violation or the actual
damages suffered by him or her as a result, along with costs,
reasonable attorney's fees, and any other legal or equitable
relief.
4.Provides that the jurisdiction of the above civil action also
include the county in which the subject individual resides at
the time of the violation.
Background
In recent years, commercial Web sites have begun to extract and
compile criminal record information, including booking
photographs (mug shots), from certain police and sheriff's
department Web sites, post that information online, and charge
substantial fees to the subject of the criminal record
information to have that information removed. This practice is
part of a growing niche industry, "the mug-shot racket."
According to a recent article, "[e]xploiting Florida's liberal
public-records laws and Google's search algorithms, a handful of
entrepreneurs are making real money by publicly shaming people
who've run afoul of Florida law. Florida.arrests.org, the
biggest player, now hosts more than 4 million mugs. On the
other side of the equation are firms like RemoveSlander,
RemoveArrest.com and others that sometimes charge hundreds of
dollars to get a mugshot [sic] removed. On the surface, the
mug-shot sites and the reputation firms are mortal enemies. But
behind the scenes, they have a symbiotic relationship that
wrings cash out of the people exposed. . . . None of this
appears to be illegal, but it demonstrates an unintended
consequence of state transparency laws." (Cravats, Mug-Shot
Industry Will Dig Up Your Past, Charge You to Bury It Again
(Aug. 2, 2011)
[as of Mar.
27, 2014].)
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The mug shot business has now expanded to California and,
according to a recent Los Angeles Times article, is impacting
California residents by affecting their employment prospects and
causing humiliation. (Lopez, Lawsuit targets website that posts
mug shots (Jan. 22, 2014)
[as of Mar. 27, 2014].) Existing
California law requires public access to public agency
information but does not prohibit individuals from collecting
mug shots of individuals and charging exorbitant fees for
removal of the mug shots.
Comment
The author writes:
Since 2010, there has been a proliferation of [Web sites] that
charge hundreds of dollars, and in some cases thousands of
dollars, to have police mug shots removed from their sites.
These fly-by-night enterprises often sully reputations and
hinder employment opportunities, regardless of whether charges
are dropped.
While at least twenty states have introduced or passed
legislation to bar this extortion like practice, current
California law is permissive, allowing [Web sites] to charge
exorbitant fees to remove a mug shot from the internet.
For example, Bob DeBrino, a film producer who has worked with
such luminaries as director Sidney Lumet and actors Gary
Busey, Steve Baldwin and Vin Diesel, said his business deals
have collapsed since his DUI booking photo was posted on the
internet.
The former New York City police officer was arrested by
Glendale police in January 2013 on suspicion of driving under
the influence of methadone and the prescription drug Adderall.
The medication was prescribed by doctors in preparation for
surgery. The DUI charges were dropped after the Los Angeles
County District Attorney's Office rejected the case.
But DeBrino's unflattering mug shot remains plastered on [Web
sites] that he said are demanding he pay them thousands of
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dollars to take it down. "This has been a damn nightmare,"
said DeBrino, who received dozens of citations for bravery
before retiring early from the NYPD due to injuries sustained
in the line of duty, including being shot while foiling a bank
robbery. "It's about time to stand up to these con men who
are ruining lives."
SB 1027 seeks to end the for-profit dissemination of arrest
information [and] would make it unlawful to solicit or accept
payment to remove, correct, or modify the criminal record
information.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 4/22/14)
Association for Los Angeles Deputy Sheriffs
California Law Enforcement Association of Records Supervisors,
Inc.
California State Sheriffs' Association
Legal Services for Prisoners with Children
Los Angeles Protective League
Riverside Sheriffs' Association
AL:k 4/23/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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