BILL ANALYSIS Ó AB 2533 Page 1 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. AB 2533 Page 2 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 AB 2533 Page 3 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." AB 2533 Page 4 "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 AB 2533 Page 5 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." AB 2533 Page 6 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 AB 2533 Page 7 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 AB 2533 Page 8 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. AB 2533 Page 9 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 AB 2533 Page 10 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 Page 11