BILL ANALYSIS Ó
AB 1957
Page 1
Date of Hearing: April 12, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1957 (Quirk) - As Amended April 6, 2016
As Proposed to be Amended in Committee
SUMMARY: Allows a local governing body to review body camera
footage of an officer-involved incident resulting in death or
great bodily injury the day after the incident occurs, and
allows the public access to the footage 60 days after the
commencement of an investigation. Specifically, this bill:
1)States that the local governing body may review, in a closed
session, body camera footage depicting an officer-involved
incident resulting in death or great bodily injury. This
review will occur the before the end of the next business day
following the incident.
2)Provides that, if there is an investigation that leads to a
prosecution, the judge shall review the body camera footage
and determine the release protocol, including, but not limited
to, whether the footage is released, to whom, and if redaction
is required.
3)Provides that a state or local law enforcement agency shall
make available, upon a Public Records Act request, footage
from a law enforcement body camera 60 days after the
commencement of an investigation into a misconduct allegation
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based on use of force resulting in great bodily injury or
death depicted in the footage.
4)Prohibits release of body camera footage that relates to
domestic violence crimes, crimes including minors, or
depicting statements of a witness at the scene of a crime.
EXISTING LAW:
1)Establishes the California Public Records Act and provides
that the Legislature, mindful of the right of individuals to
privacy, finds and declares that access to information
concerning the conduct of the people's business is a
fundamental and necessary right of every person in this state.
(Gov. Code, § 6250 et seq.)
2)Defines "public records" as "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."
"Writing" means " "any handwriting, typewriting, printing,
photostating, photographing, photocopying, transmitting by
electronic mail or facsimile, and every other means of
recording upon any tangible thing any form of communication or
representation, including letters, words, pictures, sounds, or
symbols, or combinations thereof, and any record thereby
created, regardless of the manner in which the record has been
stored." (Gov. Code, § 6252.)
3)Makes public records open to inspection at all times during
the office hours of the state or local agency. Every person
has a right to inspect any public record, except as hereafter
provided. Any reasonably segregable portion of a record shall
be available for inspection by any person requesting the
record after deletion of the portions that are exempted by
law. (Gov. Code, § 6253, subd. (a).)
4)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, shall
make the records promptly available to any person upon payment
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of fees covering direct costs of duplication, or a statutory
fee if applicable. Upon request, an exact copy shall be
provided unless impracticable to do so. (Gov. Code, § 6253,
subd. (b).)
5)Requires the public agency, when a member of the public
requests to inspect a public record or obtain a copy of a
public record, in order to assist the member of the public
make a focused and effective request that reasonably describes
an identifiable record or records, to do all of the following,
to the extent reasonable under the circumstances:
a) Assist the member of the public to identify records and
information that are responsive to the request or to the
purpose of the request, if stated;
b) Describe the information technology and physical
location in which the records exist; and
c) Provide suggestions for overcoming any practical basis
for denying access to the records or information sought.
(Gov. Code, § 6253.1, subd. (a).)
6)States that the above provision does not apply when the public
agency determines that the request should be denied and bases
that determination solely on an exemption listed in Section
6254, as specified. (Gov. Code, § 6253.1, subd. (d).)
7)States that, except as in other sections of the California
Public Records Act, this chapter does not require the
disclosure of specified records, which includes among other
things: Records of complaints to, or investigations conducted
by specified agencies, including any state or local police
agency, or any investigatory or security files compiled by any
other state or local police agency, or any investigatory or
security files compiled by any other state or local agency for
correctional, law enforcement, or licensing purposes. (Gov.
Code, § 6254.)
8)Provides, notwithstanding any other law, state and local law
enforcement agencies shall make public the following
information, except to the extent that disclosure of a
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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:
a) The full name and booking information of all persons
arrested;
b) Calls for service logs and crime reports, subject to
protections for protecting the confidentiality of victims;
and,
c) The addresses of individuals arrested by the agency and
victims of a crime, where the requester declares under
penalty of perjury that the request is made for a
scholarly, journalistic, political, or governmental
purpose, or that the request is made for investigation
purposes by a licensed private investigator. (Gov. Code, §
6254, subd. (f).)
9)Requires the agency to justify withholding any record by
demonstrating that the record in question is exempt under
express provisions of this chapter or that on the facts of the
particular case the public interest served by not disclosing
the record clearly outweighs the public interest served by
disclosure of the record. (Gov. Code, § 6255.)
10)Authorizes any person to institute proceedings for injunctive
or declarative relief or writ of mandate in any court of
competent jurisdiction to enforce his or her right to inspect
or to receive a copy of any public record or class of public
records under this chapter. (Gov. Code, § 6258.)
11)States that peace officer or custodial officer personnel
records and records maintained by any state or local agency
pursuant to citizens' complaints against personnel are
confidential and shall not be disclosed in any criminal or
civil proceeding except by discovery. This section shall not
apply to investigations or proceedings concerning the conduct
of peace officers or custodial officers, or any agency or
department that employ these officers, conducted by a grand
jury, a district attorney's office, or the Attorney General's
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office. (Pen. Code, § 832.7, subd. (a).)
12)Provides, notwithstanding the above provision, a department
of agency shall release to the complaining party a copy of his
or her own statements at the time the complaint is filed.
(Pen. Code, § 832.7, subd. (b).)
13)States that police "personnel records" include "complaints,
or investigations of complaints, concerning an event or
transaction in which the officer participated, or which he or
she perceived, and pertaining to the manner in which he or she
performed his or her duties." (Pen. Code, § 832.8.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "Since 2012,
there has been a national outcry of several incidents where
law enforcement 'use of force' has been questioned in
communities throughout the United States. These incidences,
many leading to no indictment, have fractured the relationship
between many communities and the law enforcement agencies
sworn to protect them.
"Body worn cameras have many benefits. A 2013 University of
Cambridge study found that when police wear body cameras, both
police and respondents are less likely to use violence. The
study indicated a drop in use of force by more than a 50
percent. Body cameras could thus make the streets safer for
both officers and the general public. Body worn footage can
improve the public's view of policing.
"California has an untiring commitment to fairness, civil
rights, community policing, transparency, and justice; AB 1957
seeks to adopt the best practices for release of images
captured by the use of police body-worn cameras in this
state."
2)Body-Worn Cameras as Tool to Increase Transparency: A recent
report released by U.S. Department of Justice's Office of
Community Oriented Policing Services and the Police Executive
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Research Forum studied the use of body-worn cameras by police
agencies. This research included a survey of 250 police
agencies, interviews with more than 40 police executives, a
review of 20 existing body-camera policies, and a national
conference at which more than 200 police chiefs, sheriffs,
federal justice representatives, and other experts shared
their knowledge of and experiences with body-worn cameras.
The report shows that body-worn cameras can help agencies
demonstrate transparency and address the community's questions
about controversial events. Among other reported benefits are
that the presence of a body-worn camera have helped strengthen
officer professionalism and helped to de-escalate contentious
situations, and when questions do arise following an event or
encounter, police having a video record helps lead to a
quicker resolution. (Miller and Toliver, Implementing a
Body-Worn Camera Program: Recommendations and Lessons Learned,
Police Executive Research Forum (Nov. 2014).)
3)California Public Records Act: The purpose of the California
Public Records Act is to prevent secrecy in government and to
contribute significantly to the public understanding of
government activities. (City of San Jose v. Superior Court
(1999) 74 Cal.App.4th 1008, 1016-1017.) Thus, under the
California Public Records Act, generally all public records
are open to public inspection unless a statutory exception
exists. But, even if a specific exception does not exist, an
agency may refuse to disclose records if on balance, the
interest of nondisclosure outweighs disclosure. "The specific
exceptions of section 6254 should be viewed with the general
philosophy of section 6255 in mind; that is, that records
should be withheld from disclosure only where the public
interest served by not making a record public outweighs the
public interest served by the general policy of disclosure."
(53 Ops.Cal.Atty.Gen. 136 (1970).)
a) Police Investigatory Records: Under the California
Public Records Act, police investigatory records are exempt
from disclosure. (Gov. Code, § 6254, subd. (f).) The
California Supreme Court has expressly rejected this to
mean that all information reasonably related to criminal
activity is exempt. "Such a broad exemption . . . would
effectively exclude the law enforcement function of state
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and local governments from any public scrutiny under the
California Act, a result inconsistent with its fundamental
purpose." (American Civil Liberties Union Foundation v.
Deukmejian (1982) 32 Cal.3d 440, 449.) Additionally, a
record or document that contains some information that is
exempt does not require the entire record to be exempt as
long as the exempt material is reasonably segregable from
the non-exempt material. (Id. at p. 453.)
b) Police Personnel Records: Under existing law, certain
police personnel records are deemed confidential. (Pen.
Code, §§ 832.5, 832.7, 832.8.) "Personnel records" are
defined to include any file maintained under that
individual's name by the officer's employing agency and
containing records relating to any of the following, among
other things, "employee advancement, appraisal, or
discipline" and "complaints, or investigations of
complaints, concerning an event or transaction in which he
or she participated, or which he or she perceived, and
pertaining to the manner in which he or she performed his
or her duties." (Pen. Code, § 832.8, subds. (d) and (e).)
c) Case Review: In Copley-Press, Inv. v. Superior Court
(2006) 39 Cal.4th 1272, a newspaper publisher requested
disciplinary appeal records for a particular officer that
had been terminated. The newspaper publisher,
Copley-Press, argued for disclosure by stating, among other
reasons, that the records maintained by the Commission
conducting the disciplinary appeal were not protected
because they are not personnel records. The Court rejected
this view and stated that the records are "personnel
records" and therefore are confidential. It did not matter
that the Commission, rather than the actual law enforcement
agency was in possession of the documents. The Court relied
largely on the language of Penal Code section 832.7,
subdivision (c), which permits a department or agency that
employs peace officers to disclose certain data against
officers, but only "if that information is in a form which
does not identify the individuals involved." The Court
reasoned that the information demonstrates that the statute
is intended to protect, among other things, the identity of
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officers subject to complaints. (Copley-Press, Inv. v.
Superior Court, supra, 39 Cal.4th at p. 1289.)
A more recent case distinguished itself from Copley and
held that officers' names in this particular case must be
disclosed. In Long Beach Police Officers Association v.
City of Long Beach (2015) 59 Cal.4th 59, a police union
sought to prevent disclosure of the names of Long Beach
police officers involved in certain shootings while on-duty
pursuant to exceptions in the California Public Records
Act. The California Supreme Court, in reviewing the
statutes that make police personnel records confidential
(Pen. Code, §§ 832.7 and 832.8) stated that the information
contained in the initial incident report of an on-duty
shooting are typically not "personnel records" although it
would result in an investigation by the employing agency
and may lead to discipline. "Only the records generated in
connection with that appraisal or discipline would come
within the statutory definition of personal records. (Pen.
Code, 832.8, subd. (d).) We do not read the phrase
'records relating to . . . employee . . . appraisal or
discipline' so broadly to include every record that might
be considered for purposes of an officer's appraisal or
discipline, for a such a broad reading of the statute would
sweep virtually all law enforcement records into the
protected category of 'personnel records.'" (Id. at pp.
71-72.)
The Court also analyzed the investigatory records exception
within the California Public Records Act (Gov. Code, §
6254, subd. (f)) to support its conclusion that not all
records pertaining to an on-duty shooting is confidential.
The Court noted that paragraphs (1) and (2) of subdivision
(f) require the disclosure of the officer's name when a
shooting occurs by the officer during an arrest, or in the
course of responding to a complaint or request for
assistance, or when the officer's name is recorded as a
factual circumstance of the incident. "It thus appears
that the Legislature draws a distinction between (1)
records of factual information about an incident (which
generally must be disclosed) and (2) records generated as
part of an internal investigation of an officer in
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connection with the incident (which generally are
confidential)." (Long Beach Officers Association, supra, 59
Cal.4th at p. 72.)
Likewise, the Court found that the exception against
disclosure of personnel records if disclosure would
constitute an unwarranted invasion of personal privacy,
(Gov. Code, § 6254, subd. (c)), would in most instances
weigh in favor of disclosure. "The public's substantial
interest in the conduct of its peace officers outweighs, in
most cases, the officer's personal privacy interest." (Long
Beach Officers Association, supra, 59 Cal.4th at p. 73.)
The Court distinguished its finding from Copley, supra,
where the court held that an officer's identity was
protected from disclosure as a "personnel record." In
Copley, supra, disclosing the name of the officer in
disciplinary appeal records would link the officer to
confidential personnel matters involving disciplinary
action. In this case, disclosing the names of officers
involved in various shootings would not imply that those
shootings resulted in disciplinary action against the
officers, and it would not link those names to any
confidential personnel matters or other protected
information. (Long Beach Officers Association, supra, 59
Cal.4th at p. 73.)
Lastly, the Court considered the catchall exemption in the
California Public Records Act that allows a public agency
to withhold any public record if the agency shows that "on
the facts of the particular case the public interest served
by not disclosing the record clearly outweighs the public
interest served by disclosure of the record." (Gov. Code, §
6255.) The court concluded that vague safety concerns that
apply to all officers involved in shootings are
insufficient to tip the balance against disclosure. (Long
Beach Officers Association, supra, 59 Cal.4th at p. 74.)
Thus, the Court rejected the blanket rule sought by the
union preventing disclosure of officer names every time an
officer is involved in a shooting, and stated that that
some circumstances may warrant the nondisclosure of names
but the facts of this case did not warrant it. (Id. at p.
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75.)
Police body camera footage would be considered a public record
under the Public Records Act. This type of record can have
multiple purposes. For example, body camera footage might be
used for training purposes. But, when the video depicts
police use of force resulting in great bodily injury or death,
it will most likely be used for investigatory purposes.
This bill would create an exception to the
investigative-records exemption of the Public Records Act.
This bill would allow body camera footage depicting an
officer-involved use of force involving great bodily injury or
death which has resulted in an investigation of misconduct to
be made available to the public under the California Public
Records Act 60 days after the investigation commences.
This bill is consistent with the Supreme Court's
interpretation of the Public Records Act. The California
Supreme Court has found a policy favoring disclosure
especially salient when the subject is law enforcement: In
order to maintain trust in its police department, the public
must be kept fully informed of the activities of its peace
officers. (See Long Beach Officers Association, supra, 59
Cal.4th at p. 74, see also Commission on Peace Officer
Standards & Training v. Superior Court (2007) 42 Cal.4th 278,
297.) In Commission on Peace Officer Standards, supra, the
Supreme Court noted:
Given the extraordinary authority with which they are
entrusted, the need for transparency, accountability and
public access to information is particularly acute when
the information sought involves the conduct of police
officers. In Commission on Police Officer Standards, the
Supreme Court observed, "The public's legitimate interest
in the identity and activities of peace officers is even
greater than its interest in those of the average public
servant. 'Law enforcement officers carry upon their
shoulders the cloak of authority to enforce the laws of
the state. In order to maintain trust in its police
department, the public must be kept fully informed of the
activities of its peace officers.' [Citation.] 'It is
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indisputable that law enforcement is a primary function
of local government and that the public has a far greater
interest in the qualifications and conduct of law
enforcement officers, even at, and perhaps especially at,
an "on the street" level than in the qualifications and
conduct of other comparably low-ranking government
employees performing more proprietary functions. The
abuse of a patrolman's office can have great potentiality
for social harm ?.'" (Commission on Police Officer
Standards, at pp. 297-298, fn. omitted.)
Release of body camera footage is precisely the kind of
disclosure which will promote public scrutiny of, and
accountability for, uses of force.
4)Argument in Support: According to the California Public
Defenders Association, "The California Public Records Act
requires that public records be open to inspection at all
times during the office hours of a state or local agency and
that every person has a right to inspect any public record,
except as specifically provided. The act further requires that
a reasonably segregable portion of a public record be
available for inspection by any person requesting the public
record after deletion of the portions that are exempted by
law. Existing law exempts from the disclosure requirements
records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of,
law enforcement agencies, including the Attorney General and
state or local police agencies.
"This bill would by require a state or local law enforcement
agency to make available, upon request, footage from a law
enforcement body-worn camera 60 days after the commencement of
an investigation into misconduct that uses or involves that
footage.
"This bill promotes transparency in the actions of law
enforcement by mandating the release of recordings that would
tend to shed light on possible police misconduct. It can have
the purposes of promoting public confidence in such actions,
or disclose inappropriate behavior. Under either circumstance,
the public has a right to view these recordings."
AB 1957
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5)Argument in Opposition: According to the California District
Attorneys Association, "Existing law, in Government Code,
section 6254(f), provides an exception to the California
Public Records Act that protects against disclosure of reports
that 'would endanger the successful completion of the
investigation or a related investigation.' This bill, rather
arbitrarily, would override that CPRA exemption after just 60
days. In many cases, particularly those in which an officer
is being investigated as a criminal suspect, such an
investigation would still be ongoing after 60 days.
"AB 1957 provides no mechanism by which to delay the release of
any footage related to the investigation, and, in fact,
requires its release upon request. Under no circumstances are
law enforcement agencies required to disclose evidence during
the pendency of an investigation. Existing law sufficiently
balances the public's desire to obtain this type of
information with law enforcement agencies' need to preserve
the integrity of the investigations. AB 1957 would undermine
those efforts."
6)Related Legislation:
a) AB 1940 (Cooper), in pertinent part, exempts from
disclosure under the Public Records Act body-worn camera
recordings that depict the use of force resulting in
serious injury or death from public disclosure, except as
specified. AB 1940 will be heard in this Committee today.
b) AB 2533 (Santiago) entitles an officer to at least
five-day's notice before an agency release an audio or
video recording by that officer on the Internet. AB 2533
will be heard in this Committee today.
c) AB 2611 (Low) exempts from disclosure under the Public
Records Act any investigatory or security audio or video
recording complied by state or local law enforcement. AB
2611 is pending in the Judiciary Committee.
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7)Prior Legislation:
a) AB 65 (Alejo), would have redirected funds from the
Driver Training Penalty Assessment Fund and allocates that
money to the Board of State and Community Corrections to be
used to fund local law enforcement agencies to operate a
body-worn camera program, as specified. AB 65 was held in
the Assembly Appropriations Committee.
b) AB 66 (Weber), would have established mandatory
requirements and recommended guidelines for the use of
body-worn cameras by peace officers and the handling of the
resulting video and audio data. AB 66 was held in the
Assembly Appropriations Committee.
c) AB 69 (Rodriguez), Chapter 461, Statutes of 2015,
requires law enforcement agencies to consider specified
best practices when establishing policies and procedures
for downloading and storing data from body-worn cameras.
d) SB 175 (Huff) would have required each department or
agency that employs peace officers and that elects to
require those peace officers to wear body-worn cameras to
develop a policy relating to the use of body-worn cameras.
SB 175 was ordered to the inactive file.
REGISTERED SUPPORT / OPPOSITION:
Support
California Public Defenders Association
Legal Services for Prisoners with Children
Opposition
California Civil Liberties Advocacy
California District Attorneys Association
California Police Chiefs Association
California State Sheriffs' Association
Fraternal Order of Police
Analysis Prepared
AB 1957
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by: Sandy Uribe / PUB. S. / (916) 319-3744