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

















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