BILL ANALYSIS Ó AB 2498 Page 1 CONCURRENCE IN SENATE AMENDMENTS AB 2498 (Bonta) As Amended August 19, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |76-0 |(May 19, 2016) |SENATE: |39-0 |(August 23, | | | | | | |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: JUD. SUMMARY: Protects the names, addresses, and images of victims of human trafficking, and of their families, from public disclosure. Specifically, this bill: 1)Authorizes, at the request of a victim of human trafficking, the withholding of the names and images of the victim or of the victim's immediate family, as defined, from disclosure under the California Public Records Act (CPRA) until the investigation or any other subsequent prosecution is complete. 2)Prohibits 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, unless the disclosure is made to specified persons or agencies. AB 2498 Page 2 3)Requires law enforcement to orally inform a person who alleges to be a victim of human trafficking or his or her right to have his or her name, addresses, or images, or those of his or her immediate family members withheld and kept confidential. 4)Defines "sex offense," for purposes of the Penal Code (PC) 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. 5)Authorizes the court, for good cause, to grant priority to an action for an alleged violation of the prohibition against human trafficking as the court, in its discretion, may determine to be appropriate. The Senate amendments: 1)Make the authority with holding the names and images of the victim or victim's family upon the request of the victim and only until the investigation or any other subsequent prosecution is complete. 2)Require law enforcement to orally inform a person who alleges to be a victim of human trafficking or his or her right to have his or her name, addresses, or images, or those of his or her immediate family members withheld and kept confidential. 3)Eliminate a provision in the prior bill that would have expanded the list of criminal actions that take precedence over all other criminal actions in the order of trial to include human trafficking, and instead authorize the court, for good cause, to grant priority to an action for an alleged AB 2498 Page 3 violation of the prohibition against human trafficking as the court, in its discretion, may determine to be appropriate. 4)Make clarifying and technical amendments. EXISTING LAW: 1)Requires, under the California Public Records Act, 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 Section 6250 et seq.) 2)Exempts from disclosure under the CPRA any records relating to an investigation conducted by a state or local law enforcement, agency or any investigatory or security files complied by any other agency, for law enforcement or licensing purposes. Specifies, however, that law enforcement agencies shall disclose the names and addresses of persons involved in the incident, including information about the victim, unless the disclosure would endanger the successful completion of the investigation. (Government Code Section 6254 (f).) 3)Provides, notwithstanding any required disclosure in 2) above, that the name of a victim of certain sexual crimes, including a 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. (Government Code Section 6254 (f)(2).) 4)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 made for AB 2498 Page 4 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, shall remain confidential. (Government Code Section 6254 (f)(3).) 5)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. Provides that if the victim makes this request then the law enforcement agency shall not disclose the name of a victim. (Penal Code Section 293 (a)-(d).) 6)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 the protect the privacy of the person and will not unduly prejudice the prosecution or the defense. (Penal Code Section 293.5.) 7)Gives certain criminal actions, especially those involving sexual offenses, precedence over other criminal actions in the order of the trail calendar. (Penal Code Section 1048.) FISCAL EFFECT: According to the Senate Appropriations Committee: 1)Law enforcement agency mandates: Potential state-reimbursable costs (General Fund) to orally inform alleged victims of their right to have their information, and the information of their immediate family members, kept confidential, as well as to redact information from police reports regarding the victims and their families once the investigation or prosecution is AB 2498 Page 5 complete (as this information would be exempt from disclosure under the CPRA during this period, potential state reimbursement is only projected after the disclosure exemption under the CPRA has elapsed). The Commission on State Mandates (CSM) previously determined specified provisions of PC Section 293 constituted a reimbursable state mandate (Sex Crime Confidentiality, 98-TC-21), including but not limited to the requirement to inform an alleged victim that his or her name will become a matter of public record unless otherwise requested, and to redact victim information from public records. 2)CPRA exemption: Minor ongoing non-reimbursable local agency costs (Local Funds) and state agency costs (General Fund) for additional records exemptions from the CPRA that could incur new workload for redaction. 3)Court calendaring: Potential minor ongoing workload impact to add human trafficking to the list of types of criminal cases provided a calendaring preference. COMMENTS: This bill amends provisions in both the California Public Records Act (CPRA) and the Penal Code in order to better shield the names, addresses, and images of human trafficking victims (and of their families) from public disclosure. This bill does so by building upon victim confidentiality provisions in existing law. 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. Records exempted under the CPRA include those relating to a criminal investigation, where the disclosure might endanger the success of the investigation. However, this exemption also expressly states that certain information about both the person arrested for the crime and the victim of the crime must be disclosed under certain conditions and to certain persons; most notably law enforcement agencies are permitted under existing law to disclose information to victims and their representatives, other law enforcement agencies for specified purposes, and to persons requesting the AB 2498 Page 6 information for scholarly, journalistic, political, or governmental uses. Existing restrictions on the ability of law enforcement or other public agencies to disclose information about victims is limited primarily to restrictions on disclosing the names and addresses of minors and victims of certain enumerated sex-related crimes. These crimes include prostitution, pimping, solicitation, and sexual assault, as well as human trafficking. Under this bill, the confidentiality protections for victims of human trafficking would be greater than that afforded to victims of sexual crimes under existing law. For example, whereas existing law protects the names and addresses of certain sex-crime victims from public disclosure, this bill protects the names, addresses, and images of victims from public disclosure. In addition, this added protection applies not only to the victim, but also to the names, addresses, and images of the victim's family. This bill would also require law enforcement to orally inform a person who alleges that he or she is a victim of human trafficking of his or her right to have names, addresses, and images of the victim, and of the victim's family, withheld and kept confidential. According to the author, these added protections for victims of human trafficking are necessary because of their precarious position and greater vulnerability to retaliation against them (and their families) by the perpetrators of human trafficking. Finally, this bill would authorize the court, for good cause, to grant priority to an action for an alleged violation of the prohibition against human trafficking as the court, in its discretion, may determine to be appropriate. Analysis Prepared by: Thomas Clark / JUD. / (916) 319-2334 FN: 0004778 AB 2498 Page 7