BILL ANALYSIS Ó
AB 2611
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Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2611
(Low) - As Introduced February 19, 2016
As Proposed to be Amended
SUBJECT: THE CALIFORNIA PUBLIC RECORDS ACT: EXEMPTIONS
KEY ISSUE: Should the California public records act be amended
to specifically exempt from disclosure to the public, in
response to a request, audio and video recordings that depict
death or serious bodily injury in a morbid, sensational, and
offensive manner, or that show a peace officer being killed in
the line of duty when those recordings are within law
enforcement investigative files?
SYNOPSIS
As proposed to be amended, this bill does two main things: (1)
It clarifies that an audio or video recording compiled by a
state or local law enforcement agency is a "record" for purposes
of the California Public Records Act (PRA); and (2) exempts two
types of law enforcement records from disclosure to the public
in response to a PRA request: a) any visual or audio recording
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of another that depicts death or serious bodily injury in such a
morbid and sensational manner that the content is highly
offensive to a reasonable person and there is no legitimate
public interest or law enforcement purpose for disclosure; and
b) any visual or audio recording of the death of a peace officer
being killed in the line of duty, unless authorized to be
released by the officer's immediate family. California law
generally provides that surviving family members have no right
of privacy in the context of written media discussing, or
pictorial media portraying, the life of a decedent. However,
recent federal and state case law establishes that - perhaps
because of the ability of the Internet to publically disseminate
photographs, audio recordings and video recordings in an
unprecedented speed and degree - surviving family members do
have a legally protected interest in keeping those images from
being disclosed, especially when the images are particularly
graphic, gruesome, or upsetting. For example, a 2010 California
appellate court case, Catsouras v. Department of California
Highway Patrol (2010) 181 Cal.App.4th 856, 863-864, illustrates
that family members of a decedent have a common law privacy
right of action based upon the public release of death images of
a loved one. Likewise, in Nat'l Archives & Records Admin. v.
Favish (2004) 541 U.S. 157, the U.S. Supreme Court recognized
that a decedent's surviving family members have a right to
personal privacy in their close relative's death-scene images
and that the Freedom of Information Act requires an agency to
consider the family's rights when deciding whether to release
such images. California's Public Records Act (PRA), unlike the
federal Freedom of Information Act on which it is modeled, does
not include one specific exemption for private materials.
Instead, it includes many express exemptions from records that
are private. The PRA also exempts otherwise public records from
disclosure when "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."
(Government Code Section 6255 (a).) This bill - by specifically
exempting from disclosure, in response to a PRA request, audio
and video recordings that depict death or serious bodily injury
in a morbid, sensational, and offensive manner, or that show a
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peace officer being killed in the line of duty when those
recordings are within law enforcement investigative files -
basically codifies the likely outcome of a government agency
weighing the competing interests and denying the request. This
bill has also been referred to the Privacy and Consumer
Protection Committee and is scheduled to be heard in that
Committee if it is approved by this Committee. It is sponsored
by PORAC, supported by a number of law enforcement groups, and
opposed by the ACLU of California and the Newspaper Publishers
Association.
SUMMARY: Exempts from disclosure, in response to a PRA request,
audio and video recordings that depict death or serious bodily
injury in a morbid, sensational, and offensive manner, or that
show a peace officer being killed in the line of duty when those
recordings are within law enforcement investigative files.
Specifically, as proposed to be amended this bill:
1)Clarifies that an audio or video recording compiled by the
office of the Attorney General and the Department of Justice,
the Office of Emergency Services and any state or local police
agency for correctional, law enforcement, or licensing
purposes is a "record" for purposes of the California Public
Records Act (PRA).
2)Exempts the following law enforcement records from disclosure
to the public in response to a PRA request:
a) Any visual or audio recording of another that depicts
death or serious bodily injury in such a morbid and
sensational manner that the content is highly offensive to
a reasonable person and there is no legitimate public
interest or law enforcement purpose for disclosure.
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b) Any visual or audio recording of the death of a peace
officer being killed in the line of duty, unless authorized
to be released by the officer's immediate family.
1)Provides that notwithstanding any other provision of the bill,
the agency shall disclose a copy of a visual or audio
recording if the portion of the recording that meets the
criteria of 2 a) or b), above, can be redacted from the
recording.
2)Defines the following terms:
a) "Record" includes, but is not limited to, a visual and
audio recording and a customer list provided to a state or
local police agency by an alarm or security company at the
request of the agency.
b) "Visual or audio recording" means any photograph, film,
videotape, audio recording, or other visual or audio
reproduction.
EXISTING LAW:
1)Provides, under the Public Records Act (PRA), that all public
agency records are open to public inspection upon request,
unless the records are otherwise exempt from public
disclosure. (Government Code Section 6250 et seq. All
further statutory references are to this code, unless
otherwise indicated.)
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2)Requires any agency to open its records concerning the
administration of the agency to public inspection, unless
disclosure is otherwise prohibited by law. (Section 6253
(b).)
3)Exempts from disclosure in response to a PRA request the
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. (Section 6254 (f).)
4)Exempts from public disclosure in response to a PRA request
other records that are not specifically exempt when "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." (Section 6255 (a).)
5)Defines a "public record" to mean "any writing containing
information relating to the conduct of the public's business
prepared, owned, used, or retained by any state or local
agency regardless of physical form or characteristics."
(Section 6252(e).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Existing law recognizes the privacy interests that
weigh against public disclosure of sensitive information,
including photos of gruesome injuries and dead bodies.
California law generally provides that surviving family members
have no right of privacy in the context of written media
discussing, or pictorial media portraying, the life of a
decedent. "It is well settled that the right of privacy is
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purely a personal one; it cannot be asserted by anyone other
than the person whose privacy has been invaded, that is,
plaintiff must plead and prove that his privacy has been
invaded. [Citations.] Further, the right does not survive but
dies with the person." (Hendrickson v. California Newspapers,
Inc. (1975) 48 Cal.App.3d 59, 62, 121 Cal. Rptr. 429 [affirming
the dismissal of an action for invasion of privacy brought by
deceased's surviving family members against a newspaper that
published an obituary revealing deceased's prior criminal
conviction].)
However, a 2010 California appellate court case, Catsouras v.
Department of California Highway Patrol (2010) 181 Cal.App.4th
856, 863-864, illustrates that family members of a decedent have
a common law privacy right of action based upon the public
release of death images of a loved one. (Id at p. 864.) In
Catsouras, the first California appellate court case to
determine a surviving family's privacy interests in the gruesome
photos of a loved one's dead body, an 18-year old woman was
tragically killed and nearly decapitated in an automobile
accident. As if her family had not suffered enough from her
death, they were tortured by viewing horrifying images of her
maimed body on the Internet after they were transmitted by two
California Highway Patrol Officers to friends and family, who
posted them on the Internet, where they went viral. The
appellate court found that the family had claims for invasion of
privacy, intentional infliction of emotional distress, and
negligence against the officers, finding "there is no indication
that any issue of public interest . . . was involved" and that
the public dissemination of the photograph was a case of "pure
morbidity and sensationalism without legitimate public interest
or law enforcement purpose." (Id., at p. 874.)
Likewise, federal courts have recognized the privacy interests
of family members when gruesome or morbid photographs appear in
government records. The federal Freedom of Information Act
(FOIA), on which the California Public Records Act (PRA) is
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modeled, specifically requires a federal agency to consider the
privacy interests in determining whether to grant a request for
public records. "To the extent required to prevent a clearly
unwarranted invasion of personal privacy, an agency may delete
identifying details when it makes available or publishes an
opinion, statement of policy, interpretation, staff manual,
instruction, or copies of records." (5 USC § 552.) In Nat'l
Archives & Records Admin. v. Favish (2004) 541 U.S. 157, the
U.S. Supreme Court recognized that a decedent's surviving family
members have a right to personal privacy in their close
relative's death-scene images and that FOIA requires an agency
to consider the family's right to when deciding whether to
release such images. (Id., at p. 170.) In that case, the Court
upheld the decision by the National Archives to deny the request
for death scene photographs of former White House Counsel Vince
Foster. (Ibid.)
Our holding is consistent with the unanimous view of the
Courts of Appeals and other lower courts that have
addressed the question. See, e.g., New York Times Co. v.
National Aeronautics and Space Admin. [citation omitted]
(sustaining a privacy claim under the narrower Exemption 6
with respect to an audiotape of the Space Shuttle
Challenger astronauts' last words, because "[e]xposure to
the voice of a beloved family member immediately prior to
that family member's death . . . would cause the Challenger
families pain" and inflict "a disruption [to] their peace
of mind every time a portion of the tape is played within
the hearing") . . . Katz v. National Archives and Records
Admin. [citation omitted] (exempting from FOIA disclosure
autopsy X-rays and photographs of President Kennedy on the
ground that their release would cause "additional anguish"
to the surviving family); Lesar v. United States Dep't of
Justice [citation omitted] (recognizing, with respect to
the assassination of Dr. Martin Luther King, Jr., his
survivors' privacy interests in avoiding "annoyance or
harassment"). Neither the deceased's former status as a
public official, nor the fact that other pictures had been
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made public, detracts from the weighty privacy interests
involved. (Id., at pp. 170-171.)
According to one commentator, National Archives gives "the green
light to judges across the country to recognize family members'
privacy rights over the images of their dead loved ones beyond
the narrow confines of [Freedom of Information Act] access
disputes." (Calvert, The Privacy of Death: An Emergent
Jurisprudence and Legal Rebuke to Media Exploitation and a
Voyeuristic Culture (2006) 26 Loy. L.A. Ent. L.Rev. 133, 136.)
Courts are therefore likely to rely on the reasoning in National
Archives when deciding whether the interests of family members
should be considered in government decisions whether to release
similar records to the public.
Gruesome and morbid images would likely be withheld, even under
current law, from public disclosure in response to a PRA
request. California's Public Records Act (PRA), unlike the FOIA
on which it is modeled, does not include one specific exemption
for private materials. Instead, it includes many express
exemptions from records that are private (i.e. voter
registration information (Section 6254.4)) and exempts from
disclosure "[r]ecords, the disclosure of which is exempted or
prohibited pursuant to federal or state law," such as
attorney-client communications (Section 6254 (k)). One express
exemption in the PRA is for "[r]ecords 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."
(Section 6254 (f).) Because Section 6252(e) of the PRA defines
a "public record" to mean "any writing containing information
relating to the conduct of the public's business prepared,
owned, used, or retained by any state or local agency regardless
of physical form or characteristics," audio and video recordings
are naturally included. Nevertheless, the author feels that it
is important to clarify existing law, in light of new
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technology:
With the fast-pace and constant emergence of technologies
like body worn cameras, in-car cameras and closed-circuit
television (CCTV), witness and victim privacy issues have
become a top priority. . . .[The CPRA] does not reflect new
technologies, such as body worn cameras or in-car videos as
it relates to the release of information. Furthermore, the
CPRA does not address the issue of the release of any video
depicting the great bodily injury or death of a peace
officer while acting in the line of duty. A peace officer
receiving serious injuries or giving the ultimate sacrifice
for the citizens of this state deserves to have any related
video protected by the Act. The surviving families of
these officers should not have to worry that the video
depicting their loved one's death will be open to the
public to be viewed over and over again.
In addition to express exemptions for private information, the
PRA also exempts otherwise public records from disclosure when
"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." (Section 6255 (a).) Given
the reality that public records, by their nature, are likely to
disclose information about private individuals to the public,
the interests of privacy are always an issue when addressing the
competing interests of disclosure and non-disclosure. Although
the scale is not evenly balanced between those interests and is
weighted heavily on the side of disclosure, courts uphold agency
decisions to deny PRA requests when the privacy interests are
significant.
Given the fact that, as explained above, the U.S. Supreme Court
holding in National Archives has given "the green light to
judges across the country to recognize family members' privacy
rights over the images of their dead loved ones" in not just
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disputes about the release of public records, but civil actions
as well, and the observation in Catsouras that there is no
public interest in the disclosure of an image of "pure morbidity
and sensationalism without legitimate public interest or law
enforcement purpose," it is highly likely that a court faced
with the question of whether such images be released in response
to a PRA request would find that "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" and deny such a request pursuant to Section 6255
(a). This bill - by specifically exempting from disclosure, in
response to a PRA request, audio and video recordings that
depict death or serious bodily injury in a morbid, sensational,
and offensive manner, or that show a peace officer being killed
in the line of duty when those recordings are within law
enforcement investigative files - basically codifies the likely
outcome of a government agency weighing the competing interests
and denying the request.
ARGUMENTS IN SUPPORT: PORAC, the sponsor, writes the following
in support of the bill:
A peace officer receiving serious injuries or giving the
ultimate sacrifice for the citizens of this state deserves
to have any related video protected by the act. The
surviving families of these officers should not have to
worry that the video depicting that loved one's death will
be open to the public to be viewed over and over again.
The Fraternal Order of Police also writes as follows:
Peace officers take a sworn oath to defend and protect the
citizens they serve, all while facing extraordinary risks
of danger daily. Oftentimes we forget that those
individuals that become peace officers are still public
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employees who are protected under the California Public
Records Act, which ensures that certain information is not
public information. We are pleased that AB 2611 allows for
the audio and video recording involving the death of a
public safety officer to be kept confidential. We commend
the author for protecting fellow law enforcement officers
and families of fallen officers.
ARGUMENTS IN OPPOSITION: Writing in opposition, the ACLU
observes the following:
With respect to audio or visual recordings that depict the
death of a peace officer, we appreciate that these may be
sensitive materials that family members may prefer not to
be released. But we see no justification for being more
protective of peace officer deaths than those of any other
public official, or of the general public. Indeed, there
are good reasons for being more open about the activities
of peace officers because they are public officials who
must be subject to greater scrutiny by virtue of the
enormous power entrusted to them, including the possibility
that an officer's death may occur in the context of alleged
misconduct, or as the victim of a crime.
The California Newspaper Publishers Association observes that
the exemption for recordings of peace officer deaths is likely
unnecessary and the bill as a whole is overbroad:
The public interest balancing test found in Government Code
Section 6255 already allows agencies and courts to balance
the public's right to access these recordings when specific
circumstances warrant and on a case-by-case basis against
the public interest in protecting the privacy interests of
the officer or his or her family, which in most cases would
likely favor non-disclosure.
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AB 2611 would swallow up the exception to the rule allowing
disclosure of valuable information about those who are
arrested and would upend 40 years of careful, balanced
policy development by the Legislature, the courts and all
of the stakeholders in this critical, technical area of the
law.
Pending and Recent Related Legislation: AB 1246 (Quirk)
prohibits, in response to a CPRA request, the disclosure of a
recording made by a body worn camera, except to the person whose
image is recorded by the body worn camera. This bill died
without a hearing in the Assembly Public Safety Committee.
AB 1520 (Stone) amends a provision of the CPRA that exempts from
disclosure certain personal information about customers of local
utility agencies to specify that this exemption only applies to
the personal information residential utility customers, and by
implication not to commercial, industrial, or public agency
customers. This is a two-year bill awaiting hearing in the
Senate Judiciary Committee.
AB 2498 (Bonta) would exempt from disclosure under the CPRA the
name, home address, and images of a victim of human trafficking,
and of the victim's immediate family, as specified. As amended
in this Committee specifies that the exemption would not apply
to any family members who were perpetrators of human
trafficking. Passed out of this Committee on April 5, 2016, on
a 10-0 vote and was sent to the Assembly Committee on Privacy
and Consumer Protection.
AB 2843 (Chau) would extend an existing provision of the CPRA
that exempts from disclosure the home addresses and home phone
numbers of state employees and employees of a school district or
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county office of education to include the employees personal
cell phone number and personal email address. AB 2843 will be
heard by this Committee today.
AB 2853 (Gatto) authorizes a public agency to post public
records on its Internet website and to direct a person
requesting such a record to that website. However, if the
person making the request lacks the ability to access or
reproduce records on the website, the agency must provide copies
of any record for an appropriate fee. AB 2853 will be heard by
this Committee today.
REGISTERED SUPPORT / OPPOSITION:
Support
Peace Officers Research Association of California
Association of Orange County Deputy Sheriffs
Association of Deputy District Attorneys
Association of Los Angeles Deputy Sheriffs
California Peace Officers Association
California Statewide Law Enforcement Association
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Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County Deputy Probation Officers Union, AFSCME,
Local 685
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Riverside Sheriffs' Association
Sacramento County Deputy Sheriffs association
Opposition
American Civil Liberties Union of California
California Newspaper Publishers Association
Analysis Prepared by:Alison Merrilees and Thomas Clark / JUD. /
(916) 319-2334
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