BILL ANALYSIS Ó
AB 2533
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Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 2533
(Santiago) - As Amended April 14, 2016
SUBJECT: Public safety officers: recording devices: release of
recordings
SUMMARY: Requires that a public safety officer be given a
minimum of three business days' notice before any audio or video
data of the officer that was recorded by the officer may be
publicly released by the department or other public agency on
the Internet. Specifically, this bill:
1)Requires that a public safety officer be given 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 an officer, a district attorney, or a United States
Attorney, after the notification to cease and desist, to seek
an injunction prohibiting the disclosure by the department or
other public agency on the Internet of any audio or video of
the officer recorded by the officer. 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.
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3)Provides that if the Commission on State Mandates determines
that these provisions contain costs mandated by the state,
then reimbursement to local agencies for those costs must be
made, as specified.
EXISTING LAW:
1)Generally requires, pursuant to the California Public Records
Act (CPRA), that public agencies disclose a government record
to the public upon request, unless there is a specific reason
to withhold it or if a public agency can establish that the
public interest in nondisclosure clearly outweighs the public
interest in disclosure. (Government Code (GC) Section 6250,
et seq.)
2)Provides, pursuant to the Public Safety Officers Procedural
Bill of Rights Act, a variety of employment rights and
remedies for all public safety officers within California.
(GC 3300, et seq.)
3)Prohibits a public safety officer from being 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. (GC 3307.5(a))
4)Authorizes an officer, 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, to notify the department or
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other public agency to cease and desist from that disclosure,
as specified. (GC 3307.5(b))
5)Authorizes an officer, a district attorney, or a United States
Attorney, after the notification to cease and desist, to 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. 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. (GC 3307.5(b))
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to give a peace
officer three days' advance notice that his or her employer
intends to publicly release that officer's body-worn camera
footage to the Internet so that the officer can take legal
action under existing law to stop the release if he or she
believes it would lead to threats or harassment. This bill is
sponsored by the Peace Officers Research Association of
California (PORAC).
2)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 threats against the officer or his/her family."
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"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
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 if they believe there is a threat. 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."
3)The use of body-worn cameras in law enforcement . A body-worn
camera is a small video camera - typically attached to an
officer's clothing, helmet or sunglasses - that can capture,
from an officer's point of view, video and audio recordings of
activities, including traffic stops, arrests, searches,
interrogations, and critical incidents such as
officer-involved shootings.
According to a November 2014, report by the U.S. Department of
Justice's Office of Community Oriented Policing Services and
the Police Executive Research Forum (PERF), a broad survey of
police departments that had deployed body-worn cameras has
many benefits: "body-worn cameras are useful for documenting
evidence; officer training; preventing and resolving
complaints brought by members of the public; and strengthening
police transparency, performance and
accountability...body-worn cameras [also] help police
departments ensure events are also captured from an officer's
perspective." However, the report also notes that "[t]he use
of body-worn cameras also raises important questions about
privacy and trust."
4)The CPRA . As noted above, the video and audio data produced
by peace officers with body-worn cameras is considered a
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public record under the CPRA, and is therefore subject to
disclosure to the public unless otherwise exempt.
The CPRA requires public agencies to generally respond to a
records request within 10 days, and make eligible public
records promptly available to a requester who pays the direct
costs of duplication. In order to withhold a record, a public
agency must demonstrate that a record is exempt under express
provisions of the CPRA, or else must show that "on the facts
of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest
served by disclosure of the record." Whenever a state or
local agency discloses a public record that would otherwise be
exempt, that disclosure constitutes a waiver of the exemption.
The CPRA provides a detailed list of information and documents
that are exempt from disclosure, including personnel files and
records of complaints or investigatory or security files
complied by state or local law enforcement agencies, although
specified written information must be provided regarding the
individuals involved in those incidents or investigations.
5)Law enforcement concerns about the public release of officer
names . As evidence of the need for officers to have advance
warning of public disclosure of body worn camera footage, the
author points to a 2014 California Supreme Court case, Long
Beach Police Officers Association v City of Long Beach . The
case involved a public request for the names of peace officers
involved in a deadly shooting, and the extent to which an
officer's name could be withheld from disclosure, and the
Court found that any potential harassment of an officer was
too speculative to justify withholding "in the absence of a
particularized showing regarding a specific officer."
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The Court wrote: "We do not hold that the names of officers
involved in shootings have to be disclosed in every case,
regardless of the circumstances. We merely conclude?that the
particularized showing necessary to outweigh the public's
interest in disclosure was not made here, where [plaintiffs]
relied on only a few vaguely worded declarations making only
general assertions about the risks officers face after a
shooting."
As the question of risk to an officer sufficient to block
disclosure of certain information about that officer will
continue being decided on a case-by-case basis, the author
contends that the three-day warning period provided by this
bill will give officers adequate to seek a judicial
determination before the information is released.
6)Arguments in support . According to the sponsor, PORAC, "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
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
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video recording if there is a true threat to their safety.
These filings by officers are rare, and judicial approval of
these injunctions is 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."
7)Related legislation . AB 1940 (Cooper) would require law
enforcement agencies that deploy body-worn cameras to develop
a policy for use, allow officers to review video footage
before making a report or statement, and exempt from public
disclosure footage that depicts the use of force until after
any civil or criminal adjudication has been made. AB 1940 is
currently pending in the Assembly Public Safety Committee.
AB 1957 (Quirk) would require a law enforcement agency to
confidentially review body worn camera from serious use of
force incidents and require a judicial determination to set
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the terms of any public release of such footage, while
generally requiring the disclosure of footage 60 days after
the commencement of a misconduct investigation and restricting
the public disclosure of footage depicting domestic violence
victims, minors, or witness statements. AB 1957 is currently
pending in the Assembly Judiciary Committee.
AB 2611 (Low) would exempt from disclosure under the CPRA
records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of,
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,
including audio or video recordings, 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. AB 2611
is currently pending in the Assembly Privacy and Consumer
Protection Committee.
8)Previous legislation . AB 66 (Weber) would have imposed
specified requirements on a law enforcement agency that
requires its officers to use body worn cameras, including a
requirement that the policies and procedures being posted
online, that peace officers be banned from making personal
copies of video footage, that officers be allowed to review
their own footage before making an initial statement and
report, and exempt footage depicting sexual or domestic
violence victims from public disclosure. AB 66 was held in
the Assembly Appropriations Committee.
AB 69 (Rodriguez), Chapter 461, Statutes of 2015, requires law
enforcement agencies to consider specified best practices when
establishing policies and procedures for downloading and
storing data from body-worn cameras.
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AB 1246 (Quirk) would have prohibited the disclosure of a
recording made by a body-worn camera, except to the person
whose image is recorded by the body worn camera. AB 1246 died
in Assembly Public Safety Committee.
SB 175 (Huff) would require each department or agency that
employs peace officers and that elects to require those peace
officers to wear body-worn cameras to develop a policy
relating to the use of body-worn cameras. SB 175 is currently
on the inactive file on the Assembly Floor.
SB 195 (Anderson) would have stated the intent of the
Legislature to enact legislation that protects the privacy of
individuals recorded by body-worn cameras utilized by law
enforcement officers and the privacy of the officers wearing
these cameras. SB 195 died in the Senate Rules Committee.
9)Double-referral . This bill was double-referred to the
Assembly Public Safety Committee, where it was heard on April
12, 2016, and passed on a 7-0 vote.
REGISTERED SUPPORT / OPPOSITION:
Support
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Peace Officers Research Association of California (PORAC)
(sponsor)
Association for Los Angeles Deputy Sheriffs
Los Angeles County Deputy Probation Officers Union, AFSCME Local
685
Los Angeles Police Protective League
Riverside Sheriffs' Association
Opposition
None on file.
Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200
AB 2533
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