BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2533


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          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:  








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          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  








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            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  








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            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  








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            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  








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            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  








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            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.









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          "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  








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            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  








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               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








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          California Police Chiefs Association
          California Public Defenders Association
          
          Analysis Prepared  
          by:              David Billingsley / PUB. S. / (916) 319-3744