BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 2498 (Bonta) Version: April 7, 2016 Hearing Date: June 14, 2016 Fiscal: Yes Urgency: No NR SUBJECT Human trafficking DESCRIPTION This bill would exempt the names, addresses, and images of victims of human trafficking and their immediate family, as specified, from disclosure pursuant to the California Public Records Act (CPRA). This bill would additionally prohibit law enforcement agencies from disclosing the names, addresses, and images of human trafficking victims and their immediate family, except under specified circumstances, and would expand the list of criminal actions that take precedence over all other criminal actions in the order of trial to include human trafficking, as defined. BACKGROUND The California Public Records Act (CPRA) governs 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. (Gov. Code Sec. 6254 et seq.) 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. A major category of exempted information covers information from records of complaints and investigations, records of intelligence information, and security procedures of the Department of Justice and any state or local law enforcement AB 2498 (Bonta) Page 2 of ? agency. (Gov. Code Sec. 6254(f).) The statute permits the disclosure of specified information, however, unless disclosure would endanger the successful completion of the investigation or endanger the safety of a witness, the victim, or other persons involved in the investigation. The information permitted to be disclosed are facts about persons arrested by the agency (e.g. physical description, date and time of arrest, name and occupation, all charges filed), facts about complaints or requests for assistance received by the agency (including information about the crimes alleged and factual circumstances about the crime or incident and the injuries sustained by victims), and, pursuant to a request for information for scholarly, journalistic, political, or governmental purpose, the names and addresses of those arrested by the agency and the victims of specified crimes. (Gov. Code Sec. 6254(f)(1), (f)(2), and (f)(3).) Among the information permitted to be disclosed under Sec. 6254(f) are the names of victims of crimes (Gov. Code Sec. 6254(f)(2).) and their addresses (Gov. Code Sec. 6254(f)(3).). However, where the crime committed is one on a list of sex offenses (such as rape, unlawful sexual intercourse with a minor, sodomy, lewd acts on a child) the law enforcement agency may withhold the victim's name at the victim's request or at the request of the victim's parent or guardian if the victim is a minor. This bill would create additional protections for victims of human trafficking and their families, as specified. CHANGES TO EXISTING LAW 1.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, AB 2498 (Bonta) Page 3 of ? 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 makes certain criminal record information, including records of complaints to, or investigations conducted by, or any investigatory or security files compiled by any other state or local police agency 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. (Gov. Code Sec. 6254(f).) Existing law provides, notwithstanding any disclosure required under the investigatory exemption under the CPRA, that the name of a victim of certain sexual crimes, including a victim of human trafficking, may be withheld from disclosure at the victim's request, or at the request of the victim's parent or guardian if the victim is a minor. (Gov. Code Sec. 6254(f)(2).) Existing law requires state and local law enforcement agencies to disclose, subject to certain restrictions, the current address of every individual arrested by the agency and the current address of the victim of a crime, if 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, as defined. However, notwithstanding this general disclosure requirement, the address of the victim of certain sexual crimes, including human trafficking, must remain confidential. (Gov. Code Sec. 6254 (f)(3).) This bill would provide that the names, addresses, and images of a victim of human trafficking, and of the victim's immediate family, other than a family member who is charged with a criminal offense arising from the same incident, shall AB 2498 (Bonta) Page 4 of ? be withheld from a public records request and remain confidential. 2.Existing law requires an employee of a law enforcement agency who personally received a report from a person alleging that he or she has been the victim of a sex offense, to inform the person making the report that his or her name will become a matter of public record unless he or she requests that it not become a matter of public record, and additionally provides that if the victim makes this request then the law enforcement agency shall not disclose the name of a victim. (Pen. Code Sec. 293 (a)-(d).) Existing law provides that any victim of a sexual crime who has not elected to exercise his or her right to keep her name confidential may request to be identified in all court records and proceedings as either Jane Doe or John Doe, if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense. (Pen. Code Sec. 293.5.) Existing law provides that certain criminal actions, especially those involving sexual offenses, take precedence over other criminal actions in the order of the trail calendar. (Pen. Code Sec. 1048.) This bill would prohibit a law enforcement agency from disclosing the names, addresses, or images of a person who alleges to be a victim of human trafficking, or of that alleged victim's immediate family, other than a family member who is charged with a criminal offense arising from the same incident, unless the disclosure is made to a prosecutor, parole officer of the Department of Corrections and Rehabilitation, hearing officers of the parole authority, probation officers of county probation departments, or other persons or public agencies where authorized or required by law. This bill would define "sex offense," for purposes of the Penal Code sections amended by this bill, to include human trafficking, and makes conforming changes to clarify that a person who was forced to commit acts of prostitution because he or she is a victim of human trafficking is the victim of a sexual offense. AB 2498 (Bonta) Page 5 of ? This bill would add criminal actions alleging human trafficking to the list of criminal cases that take precedence over all other criminal actions in the trial calendar. COMMENT 1.Stated need for the bill According to the author: AB 2498 would bring justice to human trafficking victims by strengthening victim protections and by holding exploiters and buyers accountable. Under current law, the name and address of a human trafficking victim becomes public record unless the victim actively requests that information remain confidential. This bill would protect victims by ensuring that the burden of opting-out is not placed on the victim, who may or may not comprehend the court process or the potential outcomes of identifying oneself, such as the risk of retaliation from an exploiter or buyer to themselves or their family members. 2.Protects the confidentiality of human trafficking victims and their families Human trafficking, the world's fastest growing criminal enterprise and an estimated $32 billion-a-year global industry, is generally defined as the use of force, coercion, or fraud to obtain coerced labor or personal services. The U.S. State Department estimates that 14,500 - 17,500 people are trafficked annually, and that the vast majority of human trafficking victims in the United States are American-born. Over 80 percent of reported trafficking cases are sex trafficking, rather than labor, with the average age of entry for girls into being 12-14 years. (http://www.heatwatch.org/resources/institute [as of June 2, 2016].) While the California Public Records Act (CPRA) generally provides that all records held by a government agency are accessible to the public upon request, the information related to victims of certain crimes are protected from disclosure. Along with victims of other sexual crimes, existing law protects a human trafficking victim's name, upon request, and address from public disclosure. This bill would: (1) eliminate the need of a victim to request that his or her information be kept confidential; (2) prohibit the sharing of images related to the AB 2498 (Bonta) Page 6 of ? crime; and (3) extend these protections to the victim's immediate family members, with the exception of a family member who is charged with a criminal offense arising from the same incident. According to the author, these added protections for victims of human trafficking are necessary because of their precarious position and increased vulnerability of retaliation against them and their families by the perpetrators of human trafficking. The California State Sheriffs Association, in support, argues that this bill will ensure greater protection for victims of human trafficking because while existing law allows victims of sexual assault and human trafficking to request that their names be withheld from public records, "this protection is not without security faults because victims may still be identified by their picture, family ties, or address." This bill correctly recognizes, however, that family members may very well be the perpetrator of the crime, and would therefore exempt a family member, who is charged with a criminal offense arising from human trafficking, from the protections of this bill. This bill would additionally protect images associated with the crime of human trafficking from public disclosure. Given that many victims of human trafficking have been forced to participate in pornography or have otherwise been "advertised" by their traffickers, allowing that victim to exercise control over images of herself is arguably appropriate. In support, Planned Parenthood Affiliates of California (PPAC) writes: Traffickers use force, fraud, and mental and physical coercion to compel victims to engage in commercial acts of sex or labor services against their will. According to the National Human Trafficking Resource Center, in California there were 912 human trafficking cases reported in 2014 and of those, 75 percent were sex trafficking cases. [?]. PPAC supports policies that will prevent human exploitation and that will protect the identity of those who fall victim to these crimes. 3.Provides human trafficking victims greater protection than other crime victims The CPRA makes all public records subject to public inspection unless a specific provision of the CPRA or another statute exempts the record from disclosure. For example, records relating to a criminal investigation, where disclosure might AB 2498 (Bonta) Page 7 of ? endanger the success of the investigation, are specifically exempted from the disclosure requirements of the CPRA. However, this exemption expressly states that certain information about both the person arrested for the crime and the victim must be disclosed to victims and their representatives, other law enforcement agencies for specified purposes, and to persons requesting the information for scholarly, journalistic, political, or governmental uses. The names of victims of sexual crimes are usually only exempt from disclosure under the CPRA if the victim has affirmatively requested that his or her name be kept confidential, but the home addresses of victims of sexual crimes are kept confidential as a matter of course. This bill creates stronger confidentiality protections for victims of human trafficking than those afforded to other sexual crime victims by protecting specified family members and protecting the images of the victims, but also by offering these protections automatically instead of requiring the victim to "opt in." The California Immigrant Policy Center, in support, argues that this advantage is necessary because for many victims of human trafficking, requesting that one's name be kept confidential is "a potentially onerous burden where the victim might not understand the American legal system or the consequences of having his or her status as a victim of human trafficking a matter of public record." This argument may apply equally to victims of sexual crimes as well, who may not be fluent in English or lack the sophistication to understand the complexities of the justice system. While there appear to be adequate justifications for extending protections to the families of trafficked victims and to images related to the crime (see Comment 2 above), there is arguably not sufficient justification to automatically exempt victims of human trafficking from the disclosure requirements of the CPRA while requiring victims of other sexual crimes to take an affirmative action. To ensure that victims of sex crimes and victims of human trafficking are treated with congruity, the following amendment would provide that the names and images of victims of human trafficking and specified family members would be exempt from disclosure under the CPRA if so requested. Suggested amendments: Page 6, strike lines 5 - 12 and insert: "Subject to the AB 2498 (Bonta) Page 8 of ? restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim's immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim's request until the investigation or any subsequent prosecution is complete. For purposes of this subdivision, "immediate family" shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code." 4. Double referral to Senate Committee on Public Safety In addition to protecting the confidentiality of human trafficking victims under the CPRA, this bill would add similar protections for victims in criminal actions based on allegations of human trafficking in the Penal Code. Those protections would prohibit a law enforcement agency from disclosing the names, addresses, or images of a person who alleges to be a victim of human trafficking, or of that alleged victim's immediate family, as specified, unless the disclosure is made to a prosecutor, parole officer of the Department of Corrections and Rehabilitation, hearing officers of the parole authority, probation officers of county probation departments, or other persons or public agencies where authorized or required by law, and would make other related changes. This bill has been double-referred to the Senate Committee on Public Safety for further review of the above provisions. Support : Alameda County District Attorney; Association of Orange County Deputy Sheriffs; California Catholic Conference; California Immigrant Policy Center; California State Sheriffs' Association; California Statewide Law Enforcement Association; Crime Victims United of California; Fraternal Order of Police; Junior Leagues of California State Public Affairs Committee; Long Beach Police Officers Association; Peace Officers Research Association of California; Planned Parenthood Affiliates of California; Sacramento County Deputy Sheriffs' Association; WestCoast Children's Clinic Opposition : None Known HISTORY AB 2498 (Bonta) Page 9 of ? Source : Author Related Pending Legislation : AB 2611 (Low) would exempt from disclosure, pursuant to the CPRA, audio and video recordings that depict death or serious bodily injury in a morbid, sensational, and offensive manner, or that show a peace officer being killed in the line of duty when those recordings are within law enforcement investigative files. AB 2843 (Chau) would extend an existing provision of the CPRA that exempts from disclosure the home addresses and home phone numbers of state employees and employees of a school district or county office of education to include the employee's personal cell phone number and personal email address. AB 2853 (Gatto) would authorize a public agency to post public records on its Internet Web site and to direct a person requesting such a record to that Web site, as specified. Prior Legislation : None Known Prior Vote : Assembly Floor (Ayes 76, Noes 0) Assembly Appropriations Committee (Ayes 20, Noes 0) Assembly Privacy and Consumer Protection Committee (Ayes 11, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) **************