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 -
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<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