BILL ANALYSIS Ó AB 2533 Page 1 Date of Hearing: April 12, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 2533 (Santiago) - As Introduced February 19, 2016 As Proposed to be Amended in Committee SUMMARY: Requires a public safety officer to be provided a minimum of three business days' notice before a public safety department or other public agency releases on the Internet any audio or video of the officer recorded by the officer. Specifically, this bill: 1)Requires a public safety officer to be provided a minimum of three business days' notice before a public safety department or other public agency releases on the Internet any audio or video of the officer recorded by the officer. 2)Authorizes the public safety officer, based upon that reasonable belief, to notify the public safety department or other public agency to cease and desist from disclosing on the Internet any audio or video of the officer that is recorded by the officer. 3)Allows the officer, a district attorney, or a United States Attorney to seek an injunction to prohibit the release of that audio or video on the Internet. EXISTING LAW: AB 2533 Page 2 1)Specifies that no public safety officer shall be required as a condition of employment by his or her employing public safety department or other public agency to consent to the use of his or her photograph or identity as a public safety officer on the Internet for any purpose if that officer reasonably believes that the disclosure may result in a threat, harassment, intimidation, or harm to that officer or his or her family. (Gov. Code, § 3307.5, subd. (a).) 2)States that based upon his or her reasonable belief that the disclosure of his or her photograph or identity as a public safety officer on the Internet may result in a threat, harassment, intimidation, or harm, the officer may notify the department or other public agency to cease and desist from that disclosure. (Gov. Code, § 3307.5, subd. (b).) 3)States that after the notification to cease and desist, the officer, a district attorney, or a United States Attorney may seek an injunction prohibiting any official or unofficial use by the department or other public agency on the Internet of his or her photograph or identity as a public safety officer. (Gov. Code, § 3307.5, subd. (b).) 4)Provides that the court may impose a civil penalty in an amount not to exceed five hundred dollars ($500) per day commencing two working days after the date of receipt of the notification to cease and desist. (Gov. Code, § 3307.5, subd. (b).) 5)Defines "public safety officer" as all peace officers, except as specified. (Gov. Code, § 3301.) 6)Specifies that no public safety officer shall be subjected to punitive action, or denied promotion, or be threatened with any such treatment, because of the lawful exercise of the rights under the Public Safety Officers Procedural Bill of Rights, or the exercise of any rights under any existing administrative grievance procedure. (Gov. Code, § 3304.) 7)States that administrative appeal by a public safety officer AB 2533 Page 3 Public Safety Officers Procedural Bill of Rights shall be conducted in conformance with rules and procedures adopted by the local public agency. (Gov. Code, § 3304.5.) 8)California Public Records Act generally provides 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.) 9)Provides that public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record, except as 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) 10) California Public Records Act does not require disclosure of investigations conducted by the office of the Attorney General and the Department of Justice, the Office of Emergency Services and 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, subd. (f).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "When a public agency, such as a law enforcement department, decides or is ordered by a court to release audio or video from an officer-involved incident, the release of that information may result in heightened threats against the officer or his/her family. "In most cases, it is the officer's responsibility to pursue legal action to prevent immediate disclosure of the audio and/or video. If the officer is receiving threats, this process can create a state of panic as the officer scrambles to find an attorney, complete all the necessary paperwork, and AB 2533 Page 4 obtain a restraining order before it is released. "AB 2533 ensures officers are provided with five business days' notice before the release of any audio or video recorded of the officer, allowing the officer to complete the necessary legal arrangements. This measure updates current law to be more appropriate for today's digital age, while continuing to provide an avenue of safety for threatened officers." 2)Peace Officers Bill of Rights (POBOR): POBOR provides peace officers with procedural protections relating to investigation and interrogations of peace officers, self-incrimination, privacy, polygraph exams, searches, personnel files, and administrative appeals. When the Legislature enacted POBOR in 1976 it found and declared "that the rights and protections provided to peace officers under this chapter constitute a matter of statewide concern." The statute this bill seeks to amend (Gov. Code, § 3307.5.) was incorporated into POBOR in 1999. 3)California Public Records Act (CPRA): The Public Records Act generally governs requests for the release of information in the hands of public agencies. It is designed to give the public access to information in possession of public agencies: "public records are open to inspection at all times during the office hours of the?agency and every person has a right to inspect any public record, except as . . . provided, [and to receive] an exact copy" of an identifiable record unless impracticable. (Gov. Code, § 6253.) There are a number of exceptions to disclosure, but to ensure maximum access, they are read narrowly. The agency always bears the burden of justifying nondisclosure, and "any reasonably segregable portion . . . shall be available for inspection?after deletion of the portions which are exempt." (Id.) Legislation enacting CPRA was signed in 1968. The fundamental precept of the CPRA is that governmental records shall be disclosed to the public, upon request, unless there is a specific reason not to do so. Most of the reasons for withholding disclosure of a record are set forth in specific exemptions contained in the CPRA. However, some AB 2533 Page 5 confidentiality provisions are incorporated by reference to other laws. Also, the CPRA provides for a general balancing test by which an agency may withhold records from disclosure, if it can establish that the public interest in nondisclosure clearly outweighs the public interest in disclosure. There are two recurring interests that justify most of the exemptions from disclosure. First, several CPRA exemptions are based on a recognition of the individual's right to privacy (e.g., privacy in certain personnel, medical or similar records). Second, a number of disclosure exemptions are based on the government's need to perform its assigned functions in a reasonably efficient manner (e.g., maintaining confidentiality of investigative records, official information, records related to pending litigation, and preliminary notes or memoranda). If a record contains exempt information, the agency generally must segregate or redact the exempt information and disclose the remainder of the record. If an agency improperly withholds records, a member of the public may enforce, in court, his or her right to inspect or copy the records and receive payment for court costs and attorney's fees. ( http://ag.ca.gov/publications/summary_public_records_act.pdf ) In response to a request for records, an agency has 10 days to decide if copies of the records will be provided. In "unusual" cases (request is "voluminous," seeks records held off-site, OR requires consultation with other agencies), the agency may, upon written notice to the requesters, give itself an additional 14 days to respond. These time periods may not be used solely to delay access to the records. 4)Exemptions to CPRA for Law Enforcement Investigative Records: Law Enforcement investigative records are currently exempt under the CPRA. Records of complaints, preliminary inquiries to determine if a crime has been committed, and full-scale investigations, as well as closure memoranda are investigative records. In addition, records that are not inherently investigatory may be covered by the exemption where they pertain to an enforcement proceeding that has become concrete and definite. Investigative and security records created for law enforcement, correctional or licensing purposes also are AB 2533 Page 6 covered by the exemption from disclosure. The exemption is permanent and does not terminate once the investigation has been completed. Even though investigative records themselves may be withheld, CPRA mandates that law enforcement agencies disclose specified information about investigative activities. However, the agency's duty to disclose such information only applies if the request is made contemporaneously with the creation of the record in which the requested information is contained. CPRA requires that basic information must be disclosed by law enforcement agencies in connection with calls for assistance or arrests, unless to do so would endanger the safety of an individual or interfere with an investigation. With respect to public disclosures concerning calls for assistance and the identification of arrestees, the law restricts disclosure of address information to specified persons. However, CPRA expressly permits agencies to withhold the analysis and conclusions of investigative personnel. Thus, specified facts may be disclosable pursuant to the statutory directive, but the analysis and recommendations of investigative personnel concerning such facts are exempt. 5)As Proposed to Be Amended In Committee: Proposed Amendments shorten the notice requirement from five business days to three business days. 6)Argument in Support: According to The Peace Officers Research Association of California, "It is very important to understand that AB 2533 does not expand any law; rather it builds in a procedure to provide predictability and civility to an existing law. Currently, the California Public Records Act covers when a law enforcement agency shall or shall not release information about a critical incident within their department. The courts, on a daily basis, also make decisions regarding the release of case information, including audio and video tapes of an incident. "Oftentimes, officers involved in critical incidents face real and tangible threats from criminals or angry members of the public. When a department decides or is required by a court order to release audio or video coverage from an incident, the AB 2533 Page 7 release of that information may enhance the danger of threats against the officer or his/her family. "Officers currently have the right to go to court and file an injunction so that the department cannot release an audio or video recording if there is a true threat to their safety. These filings by officers are rare, and judicial approval of these injunctions are even more rare. Generally, a judge will decide whether or not the information should be released based on the threat level and evidence of an actual threat to the officer. In most cases, it is the officer's responsibility to bring legal action to stop the disclosure. If the officer is receiving death threats, this process, understandably, will create a state of panic as the officer rushes to get an attorney, do all the necessary paperwork and get a restraining order before it is released. "In the past, it could take a department a couple of days to release any video/audio to the public or media; thereby, giving the officer a small window to file a court order if threatened. However, because of modern technology, the time frame in which this information can be released is a matter of minutes, instead of days. We are simply building in a reasonable time frame so the officer isn't forced to file an injunction after the release of a potentially threatening medium. "This bill proposes a five business day period before the video/audio can be released, giving the officer time to do the necessary legal preparation to seek judicial review. Again, this bill does not expand a law. This simply updates a current law to be more appropriate for today's digital age, while continuing to provide an avenue of safety for a threatened officer or his/her family. 7)Argument in Opposition: According to The California Newspaper Publishers Association, "AB 2533 would allow a self-interested individual to have a stranglehold over information that the public has an overwhelming interest in obtaining and that a law enforcement agency may want to disclose immediately for the good of the community. AB 2533 Page 8 "Under current law, the CPRA presumes that the public has a right of access to documents created, used or maintained in the course of the public's business unless an exemption applies. This presumption of access allows the public to obtain information in order to monitor government activities and there is no better tool for the public to use when trying to understand government's role and response to unfolding situations. "When it first enacted the CPRA, the Legislature included a hallmark principle that nothing in the CPRA shall be construed to permit an agency to delay or obstruct the inspection or copying of public records. "AB 2533 would be a radical departure from this principle. "Requiring five business days' notice to an officer before releasing a record would delay and obstruct an agency's response irrespective of the 10 day period it would otherwise have to determine whether an exemption applies or whether the agency, in the best interests of the community wants to release it. "The consequences of this mandatory five day delay could be deadly. "One needs only to look back to the events that followed the beating of Rodney King by LAPD officers as an example. If AB 2533 was to become law, and a similar lightening-rod event occurred, an agency would be absolutely prevented by law from releasing the officer's body cam recording of the beating while the graphic footage in the videos taken by all of the bystanders would appear on every TV and computer screen in the city. Instead of the outraged community's suspicion and doubt being allayed by the department's quick response and disclosure of the official record to avoid rioting and mayhem, it would be stoked by the city's failure to be forthcoming - for five days. "Moreover, AB 2533 would allow the officer or officers who recorded footage of the occurrence, who would likely have a self-interest in preventing the city from disclosing AB 2533 Page 9 potentially embarrassing or criminal behavior, to overcome the public's overwhelming right to the most crucial piece of information about a watershed event in order to understand what happened. "As this example demonstrates, AB 2533 would eviscerate the CPRA, wreak havoc on the public's right to know, decrease public safety and decrease public confidence in law enforcement agencies. "Last session, in response to an increasing number of confrontations between law enforcement and the public, the Legislature almost unanimously passed SB 411 which established that a person has a right to record an officer engaged in law enforcement activities. "By delaying and obstructing public access to body cam footage, AB 2533 is a retreat from the strong statement the Legislature made with the passage of SB 411 about the importance of increased transparency of law enforcement agencies. This bill goes the other way. "By handcuffing state and local law enforcement agency discretion, AB 2533 would produce unforeseen consequences that, as described above, would have lasting and devastating impacts on the public's ability to know what caused a crisis in a community and an agency's ability to respond to it." 8)Related Legislation: a) AB 1957 (Quirk), would requires 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. AB 1956 is being heard in this committee today. b) AB 1940 (Cooper), would exempt body-worn camera recordings that depict the use of force resulting in serious injury or death from public disclosure pursuant to the act unless a judicial determination is made, after the adjudication of any civil or criminal proceeding related to AB 2533 Page 10 the use of force incident, that the interest in public disclosure outweighs the need to protect the individual right to privacy. AB 1940 is awaiting hearing in Assembly Public Safety Committee. c) AB 1246 (Quirk), would have prohibited the disclosure of a recording made by a body worn camera, as defined, except for requiring disclosure to the person whose image is recorded by the body worn camera. AB 1246 was never heard in the Assembly Public Safety Committee. d) AB 66 (Weber), would have stated the intent of the Legislature to enact legislation to require local police departments that utilize police body-worn cameras to follow policies and procedures that will streamline best practices to better enhance the quality of the services that those departments provide to Californians. AB 66 was held in the Assembly Appropriations Committee. 9)Prior Legislation: AB 1586 (Florez), Chapter 338, Statutes of 1999, prohibits a public safety officer from being required by his or her employer or any other public agency, as a condition of employment, to consent to the use of his or her photograph or identity as a public safety officer on the Internet for any purpose if the officer reasonably believes that the disclosure may result in a threat, harassment, intimidation, or harm to that officer or his or her family. REGISTERED SUPPORT / OPPOSITION: Support Peace Officers Research Association of California (Sponsor) Opposition Americans for Civil Liberties Union of California California Broadcasters Association California Newspaper Publisher Association AB 2533 Page 11 California Police Chiefs Association California Public Defenders Association Analysis Prepared by: David Billingsley / PUB. S. / (916) 319-3744