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:
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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