BILL ANALYSIS Ó AB 2263 Page 1 Date of Hearing: April 19, 2016 ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION Ed Chau, Chair AB 2263 (Baker) - As Amended April 11, 2016 SUBJECT: Protection of victims of domestic violence, sexual assault, or stalking, and reproductive health care service providers: address confidentiality SUMMARY: Standardizes the confidentiality protections for Safe at Home (SAH) program participants, regardless of whether their participation is based on their status as victims of domestic violence, stalking, or sexual assault, or on their status as a patient, employee, or volunteer at a reproductive health care clinic; and requires the Secretary of State (SOS) to provide SAH enrollees with information about how to protect their privacy on real property records. Specifically, this bill: 1)Specifies that no person, business, or association shall publicly post or display on the Internet the address of an SAH program participant, as specified, who has made a written demand of that person, business, or association to not disclose the home address of the program participant. 2)Specifies that no person, business, or association shall knowingly post the home address of a an SAH program participant, as specified, or of the program participant's residing spouse or child, on the Internet, knowing that person is a program participant and intending to cause imminent great AB 2263 Page 2 bodily harm or threatening to cause imminent great bodily harm to the program participant or his or her residing spouse or child. 3)Requires the SOS to post on its website and provide new SAH enrollees information about how to protect personal privacy on real property records as follows: a) A notice that the participant may request to use his or her SOS SAH address on real property deeds, change of ownership forms, and deeds of trust when purchasing or selling a home; b) A notice that the participant may wish to protect his or her home address from disclosure in real property transactions by creating a trust and placing his or her real property into the trust; c) A notice that the participant may wish to legally change his or her name in order to protect his or her anonymity; and d) A list of contacts for entities, such as county bar associations, legal aid societies, domestic violence prevention organizations, or other state or local nonprofits who can provide more information and legal services to create a trust or accomplish a name change. EXISTING LAW: 1)Requires, under the California Public Records Act (CPRA), AB 2263 Page 3 state and local agencies to make public records available for inspection by the public, unless another provision of the CPRA or another statute expressly exempts the records from the disclosure requirement. (Government Code (GC) Section 6250 et seq.) 2)Establishes the SAH address confidentiality program at the SOS. This program allows state and local agencies to accept a substitute address designated by the SOS in lieu of an actual home address and requires the agency to request for public records without disclosing the address of a victim of domestic violence, sexual assault, stalking, or elder or dependent adult abuse. Permits any such adult victim, or parent or guardian acting on behalf of a minor or incapacitated person, to apply through a specified program to have an address designated by the SOS as his or her substitute mailing address. (GC 6205 et seq.) 3)Similarly, allows reproductive health care providers, employees, volunteers, and patients to participate in the SAH address confidentiality program, as specified. (GC 6215 et seq.) 4)Requires the SOS to certify a successful applicant as a program participant for four years following the date of filing, unless the certification is withdrawn or invalidated before that date, except reproductive health care services facilities volunteers shall be certified until six months from the last date of volunteering with the facility. (GC 6206 (c) and 6215.2 (e)) 5)Specifies that, once certified, the SAH participant may request that a state or local agency, when creating a public record, use a substitute address designated by the SOS in lieu of the person's residential or work address, except as AB 2263 Page 4 specified. (GC 6206 and 6207) 6)Provides that no person, business, or association shall knowingly and intentionally publicly post or publicly display on the Internet the home address, home telephone number, or image of an SAH program participant or other individuals residing at the same home address with the intent to threaten the participant or cause the participant, or co-resident, harm, as specified. (GC 6208.1) 7)Prohibits the SOS from disclosing an SAH program participant's name change or address, other than the designated address, unless it is requested by, and disclosed to, law enforcement, or directed by a court, or if the participant's certification has been canceled. (GC 6206, 6206.4 and 6208) 8)Requires that any records or documents pertaining to an SAH program participant shall be retained and held confidential for a period of three years after termination of a certification and then destroyed. (GC 6206.5 (e)) 9)Permits the confidentiality program manager to terminate a program participant's certification for specified reasons, including if the program manager determines that the information used in the application process was used as a subterfuge to avoid detection of illegal activity or apprehension by law enforcement. (GC 6206.7 (b)) 10)Prohibits a person, business, or association from knowingly posting or displaying on the Internet the home address, home telephone number, or image of any provider, employee, volunteer, or patient of a reproductive health service facility, with the intent to incite a third person to cause imminent bodily harm to a person protected by this provision. AB 2263 Page 5 Permits a person whose personal information is posted to bring an action for injunctive relief of damages, as specified. Provides that no person shall post or display on the Internet any personal information about a person protected by this provision if the person has requested that the information be removed, as specified. (GC 6218) 11)Provides that no local or state agency shall post the home address or telephone number of an elected or appointed official on the Internet without that official's prior consent. Makes it a crime for any person to knowingly post the home address or phone number of an official on the Internet knowing that the person is an elected or appointed official and with the intent to cause imminent bodily harm. Provides that a violation of this provision is a misdemeanor, and that a violation that results in bodily injury to the official or a family member is a felony. Provides that no person shall post or display on the Internet the home address or telephone number of an elected or appointed official if that official has made a written demand that the information be removed. (GC 6254.21) 12)Provides that any person who maliciously, and with the intent to obstruct justice, or with the intent or threat to inflict imminent physical harm in retaliation for the due administration of laws, publishes, disseminates, or otherwise discloses the residence address or telephone number of any peace officer, public safety officer, employee of a police department or sheriff's office, or the spouse or children of such person, is guilty of a misdemeanor. If a violation of this provision results in injury to the protected person or his or her family, then the person who violates this provision is guilty of a felony. (Penal Code Section 146e.) FISCAL EFFECT: Unknown AB 2263 Page 6 COMMENTS: 1)Purpose of this bill . This bill is intended to help protect the privacy and personal safety of SAH program participants by bringing uniformity to the confidentiality protections for certain SAH participants, and by requiring the SOS to educate participants about how they can protect their privacy on deeds and other real property records. This measure is author-sponsored. 2)Author's statement . According to the author's office, "AB 2263 closes a loophole in the Safe At Home Program to protect victims of domestic violence, sexual assault, stalking, as well as reproductive health care doctors, nurses, volunteers, and patients. Specifically, AB 2263 would provide victims enrolled in the California Safe at Home program with resources to have their title record excluded from being publically posted, just as elected officials and public safety officers do. This bill would prohibit a person, business, or association from posting the residential addresses or telephone numbers of those enrolled in the California Safe at Home Program if so requested by the program enrollee. This bill will also provide notice to enrollees of their options to prevent their home address from being publically disseminated." 3)CPRA requests and the SAH program. The CPRA requires state and local agencies to make public records available for inspection and copying by members of the public, unless the records are expressly exempted from disclosure by express provisions of the PRA or some other statute. One such exemption includes participants in the SAH program, which is intended to keep the home addresses of program participants AB 2263 Page 7 confidential. Though restricted to victims of domestic violence when first established in 1998, the program has since expanded to include victims of stalking and sexual assault; patients, employees, and volunteers of reproductive health centers; and victims of elder and dependent adult abuse. In addition, existing law provides similar protections for elected and appointed officials and law enforcement officers. These programs protect participants by preventing their abusers, or others who might wish to cause them harm, from discovering the participant's home address. The SAH program works by allowing program participants to use a substitute, publicly disclosable address, in lieu of the actual home address, whenever an address is required by a public agency for an official purpose. SAH program participants receive a designated address from the SOS - typically a post office box - and the participant may then demand that a state or local agency use this substitute address as the participant's official address. Any correspondence from the agency to the participant is sent to the designated address, and the SOS forwards it to the participant's actual and confidential address. In addition, the SOS is also designated to receive legal notices and service of process on the participant's behalf. Agencies must accept the SOS address and use it when creating, or disclosing, public records. The SAH program recognizes that some agencies may require the actual home address for a bona fide statutory or administrative purpose. In that case, the agency may retain the home address in its records; however, the agency may only use the home address for that bona fide purpose and is prohibited from publicly disseminating the home address of an SAH participant. AB 2263 Page 8 To be eligible to become an SAH program participant, an individual, living in California, must file an application containing a sworn statement that the applicant has good reason to believe that he or she, or his or her minor child, has been a victim of domestic violence, stalking, sexual assault, or elder or dependent adult abuse, or that he or she is a patient, employee, or volunteer of a reproductive health center, and that he or she fears for his or her safety or the safety of a child. The applicant must also include a police report or some other appropriate evidence indicating the applicant's eligibility. More than 7,000 people have participated in the SAH program since its inception in 1999. 4)What is the problem this bill seeks to solve? According to the author, this bill was prompted by the experience of a constituent who, despite being an SAH participant and a victim of domestic violence, discovered that her home address was nonetheless posted online and discovered by her abuser. The constituent apparently learned from her county assessor's office that the address may have been sold to data brokers who purchase public records in bulk and then post addresses and other personal information on the Internet. An earlier iteration of the bill would have prohibited a county assessor from selling or otherwise disclosing the home addresses to the general public. However, after extensive discussions with various stakeholders, including the county recorders and county assessors, the author determined that the problem was more complicated than initially assumed and that the bill as introduced might not have addressed the underlying problem. AB 2263 Page 9 5)Improved privacy protections for SAH participants . In its current form, this bill makes modest improvements in how the existing SAH framework treats people who are enrolled in the program because of their status as victims of domestic violence, stalking, and sexual abuse, and people who are enrolled in the program because of their status as patients, employees, or volunteers at a reproductive health care center. Both groups of participants enjoy the restrictions on disclosures by public agencies described above, but victims of domestic violence, stalking, and sexual assault have one additional protection under current SAH law: a private person, business, or association is prohibited from posting or displaying on the Internet the home address of an SAH participant if the SAH participant has demanded that the person, business, or association remove the home address. In addition, existing law prohibits a person, business, or association from posting the SAH participant's home address online with the knowledge and intent to cause that person imminent harm. Although similar protections are afforded to patients and reproductive health care providers under other statutes, the author believes, based on conversations with Legislative Counsel, that situating these protections within the existing SAH statutory framework will make clearer a legislative intent to provide both groups with the same privacy protections. 6)New amendments require the SOS to educate SAH enrollees about privacy options . The author recently added new provisions to the bill that require the SOS to provide to SAH enrollees information about how to protect their privacy on real AB 2263 Page 10 property records. The following information must be given to each new enrollee and posted on the SOS website: a) A notice that the participant has a right to use his or her SOS SAH program address on real property deeds, change of ownership forms, and deeds of trust when purchasing or selling a home; b) A notice that the participant may wish to protect his or her home address from disclosure in real property transactions by creating a revocable living trust and placing his or her real property into the trust; c) A notice that the participant may wish to legally change his or her name in order to protect his or her anonymity; and d) Resource information about how to get more information and legal services on how to create a trust to hold real property or accomplish a name change, including a county bar associations, legal aid societies, domestic violence prevention organizations, or other state or local nonprofits who may able to assist participants. As the bill moves forward, the author has indicated she may add more provisions to further strengthen the bill but has expressed a commitment to working with all stakeholders to devise workable solutions that carefully balance the need for privacy against the need for public access to government records, in particular the real property recording system. 1)Arguments in support . Planned Parenthood Affiliates of California (PPAC) states in support that "the bill would close AB 2263 Page 11 a loophole in the Safe At Home Program and would provide notice to a participant that he or she has the right to use his or her Safe at Home program address on real property deeds, change of ownership forms, and deeds of trust when purchasing or selling a home." 2)Double-referral . This bill was double-referred to the Assembly Judiciary Committee where it was heard on April 5, 2016 and passed 10-0. 3)Prior Legislation . AB 849 (Garcia), Chapter 676, Statutes of 2013, extended SAH protection to victims of elder and dependent adult abuse. SB 1082 (Corbett), Chapter 270, Statutes of 2012, required prospective participants of the SAH program to be domiciled in California in order to apply to the program, authorizes a minor program participant, who reaches 18 years of age during his or her enrollment, to renew as an adult, and modifies the SOS authority to terminate a program participant's certification. SB 636 (Corbett), Chapter 200, Statutes of 2011, enhanced the protections for participants in the SAH program, including prohibiting publicly posting or displaying on the Internet, or soliciting, selling, or trading on the Internet, specified personal information of the program participant. SB 1233 (Oropeza), Chapter 326, Statutes of 2010, removed the sunset date for the SAH program and required that the name change records for the program participants be permanently retained. AB 2304 (Plescia), Chapter 586, Statutes of 2008, required courts to keep confidential the current legal name of the AB 2263 Page 12 petitioner and prohibited the court from publishing that name by any means or in any public forum when the petition for name change is by a participant in the address confidentiality program. SB 1062 (Bowen), Chapter 639, Statutes of 2006, extended the protections of the SAH program to victims of sexual assault. AB 797 (Shelley), Chapter 380, Statutes of 2002, extended the protections of the SAH program to reproductive health care service providers and their employees, volunteers, and patients. SB 1318 (Alpert), Chapter 562, Statutes of 2000, extended the protections of the SAH program to victims of stalking, and revised procedures relating to terminating the certification of participants. SB 489 (Alpert) Chapter 1005, Statutes of 1998, established the SAH program for victims of domestic violence and allowed for voter record and marriage application confidentiality as well as address confidentiality. REGISTERED SUPPORT / OPPOSITION: Support AB 2263 Page 13 California State Sheriffs' Association Community Action Fund of Planned Parenthood of Orange and San Bernardino Counties Crime Victims United of California Planned Parenthood Action Fund of Santa Barbara, Ventura, & San Luis Obispo Counties Planned Parenthood Action Fund of the Pacific Southwest Planned Parenthood Advocacy Project Los Angeles County Planned Parenthood Advocates Pasadena and San Gabriel Valley Planned Parenthood Affiliates of California Planned Parenthood Mar Monte Planned Parenthood Northern California Action Fund Opposition California Right to Life Committee, Inc. AB 2263 Page 14 Analysis Prepared by:Jennie Bretschneider / P. & C.P. / (916) 319-2200