BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 2533       Hearing Date:    June 21, 2016    
          
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          |Author:    |Santiago                                             |
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          |Version:   |April 14, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JRD                                                  |
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           Subject:  Public Safety Officers:  Recording Devices:  Release  
 
                                    of Recordings



          HISTORY

          Source:   Peace Officers Research Association of California

          Prior Legislation:AB 1246 (Quirk)-2015, never heard in the  
          Assembly 
                         AB 66 (Weber)-2015, held in the Assembly  
          Appropriations Committee 

          Support:  Association for Los Angeles Deputy Sheriffs; Los  
                    Angeles Deputy Probation Officers Union, AFSCME Local  
                    685; Los Angeles County Professional Peace Officers  
                    Association; Los Angeles Police Protective League;  
                    Riverside Sheriffs' Association

          Opposition:American Civil Liberties Union of California;  
                    California State Sheriffs' Association; California  
                    Broadcasters Association; California Newspaper  
                    Publishers Association; California Police Chiefs  
                    Association; California Public Defenders Association;  
                    Legal Services for Prisoners with Children

          Assembly Floor Vote:                 71 - 1








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          PURPOSE

          The purpose of this bill is to require a public safety officer  
          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.   

          Existing law 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. (Government Code § 3307.5(a).)

          Existing law 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. (Government Code § 3307.5(b).) 

          Existing law 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. (Government Code § 3307.5(b).)

          Existing law 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. (Government Code § 3307.5(b).)

          Existing law defines "public safety officer" as all peace  
          officers, except as specified. (Government Code § 3301.)

          Existing law 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  









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          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. (Government  
          Code § 3304.)


          Existing law states that administrative appeal by a public  
          safety officer Public Safety Officers Procedural Bill of Rights  
          shall be conducted in conformance with rules and procedures  
          adopted by the local public agency. (Government Code § 3304.5.)






          Under existing law the 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. (Government Code § 6250 et. seq.)

          Existing law 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.  (Government Code § 6253)

          Under existing law 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.  (Government Code §  
          6254(f).)

          This bill requires a public safety officer 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.   










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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   
          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  









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          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for Legislation 

          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 (Government Code § 2654, the  
          California Public Records Act, clarifies when a law enforcement  
          agency shall or shall not release information about an  
          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 (Government Code § 3307.5 allows an officer to file an  
          injunction to block the release of an audio or video recording  
          if the officer believes there is a true threat to his/her  
          safety). 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 an  
          injunction. A judge then decides whether the information should  
          be released based on the actual threat level and additional  
          evidence provided by the officer. 









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          AB 2533 ensures officers are provided with three 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.   The California Public Records Act:  Law Enforcement  
          Exception

          The California Public Records Act, provides generally that  
          "every person has a right to inspect any public record," except  
          as specified in that act.  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.  
          (Government 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.)

          Law Enforcement investigative records are currently exempt under  
          the CPRA.  (Government Code § 6254.)  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 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.  









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          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.

          PORAC, which is the sponsor of this legislation, argues that  
          this legislation does not expand law: 

               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. . .

               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  









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               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. 

          The California Newspaper Publishers Association, which is  
          opposed to this legislation, disagrees: 

               Seemingly innocuous at first glance, 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, a city or  
               county may want to disclose immediately for the good of the  
               community.

               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 three business days' notice to an officer before  
               releasing a record would delay and obstruct an agency's  
               response for weeks or months 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. 

          They go on to state: 

               Worse, though, is the harm to the CPRA itself that AB 2533  
               would cause. The sole purpose in requiring an agency to  









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               provide three-business days' notice to an officer is to  
               allow the officer to go to court to seek a court order  
               preventing the agency from disclosing the footage. In the  
               motion for an injunction, there is no requirement that the  
               requester be notified of the officer's motion or that the  
               court apply the CPRA as a standard for making its  
               determination. 

               Moreover, this new process would create an additional delay  
               in getting the information to the public that could take  
               months or years depending how long it takes for the court  
               to first hear the motion and any appeals. The expense could  
               be devastating to both the agency and a requester.

          Members may wish to consider what impact this legislation will  
          have on the CPRA.  

          3.  Peace Officer Bill of Rights

          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, Government Code § 3307.5, was  
          incorporated into POBOR in 1999.

          As described above, under existing law no public safety officer  
          can be required 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 that officer  
          reasonably believes that the disclosure may result in a threat,  
          harassment, intimidation, or harm to that officer or his or her  
          family.  And, existing law allows the officer to seek a cease  
          and desist order if, 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.  This bill would require that  
          a public safety officer be given at least 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.  Public safety officers would,  









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          additionally, be able to seek a cease and desist order to  
          prevent release of the video. 

          4.   Argument in Support

          The Los Angeles County Professional Peace Officers Association  
          states:

               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.

               Officers are currently able to file an injunction to block  
               the release of an audio or video recording if there is a  
               true threat to his/her safety (Government Code Section  
               3307.5).   A judge then decides whether the information  
               should be released based on the actual threat level and  
               additional evidence provided by the officer.  Additionally,  
               the California Public Records Act clarifies when a law  
               enforcement agency shall or shall not release information  
               about an incident (Government Code Section 2654). 

               AB 2533 ensures that officers are provided with a 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 for safety for  
               threatened officers.  

          5.   Argument in Opposition
          
          The American Civil Liberties Union of California states:

               Government transparency and accountability are cornerstones  
               of our democracy; without an informed public, the obligation  
               of governments to be responsive to the people can never be  
               fulfilled. Within the context of policing, BWC footage aligns  
               with these principles by allowing the public to see  
               police-community interactions, and determine whether officers  
               or community members act appropriately. 










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               We acknowledge that some recordings may appropriately be  
               exempt from the general rule favoring release of public  
               records in those limited situations involving an undue  
                      intrusion into personal privacy without an overriding public  
               interest. However, this bill would create a peculiar new rule  
               requiring advance notice to certain government officials who  
               are the subject of a public record before the record can be  
               posted on the Internet. Peace officers do not have the right  
               to advance notice for any other release of public records  
               under existing law - including the Internet posting of their  
               photographs or other identifying documents - nor do any other  
               public officials. While this bill is limited to Internet  
               release, creating such an extraordinary new right of advance  
               notice would be a dangerous and potentially unlimited  
               precedent that could just as easily be applied to obstruct  
               access to public records by any method in addition to posting  
               on the Internet, and by any potential government wrongdoer.

               By requiring that officers be given at least five business  
               days' notice before BWC footage is posted on the Internet, AB  
               2533 poses a significant threat to transparency by permitting  
               officers to unduly delay and/or obstruct the release of BWC  
               footage. Public trust in law enforcement cannot be improved  
               without true openness about how officers interact with  
               community members. Footage of public importance (such as  
               capturing a serious use of force, or potential misconduct)  
               should be made available to the community, and law  
               enforcement agencies should have the right to post BWC  
               recordings when they determine it is appropriate to do so, in  
               addition to releasing them under the Public Records Act.  

               Peace officers should have no legitimate concern that law  
               enforcement management will post BWC recordings on the  
               Internet when doing so would subject the officer to harm.  
               However, to the extent that officers are concerned that their  
               safety is not sufficiently protected with respect to BWC  
               images or other audio or video recordings showing their  
               identity, this concern could be addressed directly by  
               revising the bill to amend Government Code section 3307.5 (a)  
               so as to make clear that "identity" may include audio or  
               video recordings by the officer that reveal his or her  
               identity. Moreover, identity can virtually always be masked  
               by anonymization or redaction, such as by video blurring and  
               audio alteration.









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               As the LA Times recently pointed out, "The reason that the  
               public has embraced body cameras - and supported the  
               not-insignificant associated costs - is because of the  
               transparency and accountability they would bring to  
               high-profile use-of-force cases."<1>  Addressing police  
               secrecy is critical to improving the lack of community trust  
               in our system of justice, especially in communities of color,  
               where people are killed by police at alarming rates. As an  
               example, a recent Pew Research Center poll found that only 30  
               percent of all Americans believe law enforcement agencies are  
               doing a good or excellent job of holding officers accountable  
               for misconduct and that number drops to a mere 10 percent  
               when the same question is asked of black Americans  
               specifically.  Another poll shows that nearly 80 percent of  
               Californians believe the public should have access to  
               information about officer misconduct, and nearly two-thirds  
               believe that the public should have access in all cases in  
               which an officer is accused of misconduct.  

                                      -- END -





          











          ---------------------------
          <1> Don't Hide Police Use-Of-Force Videos, Los Angeles Times  
          Editorial, March 25, 2016. At  
          e://www.latimes.com/opinion/editorials/la-ed-police-video-2016032 
          5-story.html