BILL ANALYSIS Ó
AB 2611
Page 1
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON PRIVACY AND CONSUMER PROTECTION
Ed Chau, Chair
AB 2611
(Low) - As Amended April 14, 2016
SUBJECT: The California Public Records Act: exemptions
SUMMARY: Exempts from public disclosure those visual and audio
records of law enforcement that depict death or serious bodily
injury in a highly offensive manner or show the death of a peace
officer being killed in the line of duty. Specifically, this
bill:
1)Exempts the following law enforcement records from disclosure
to the public in response to a California Public Records Act
(CPRA) request in the following circumstances:
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 any public interest or law
enforcement purpose for disclosure is clearly outweighed by
the public interest in nondisclosure;
b) Any visual or audio recording of the death of a peace
officer being killed in the line of duty, unless authorized
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to be released by the officer's immediate family; and
c) Notwithstanding any other provision of this subdivision,
the state and local law enforcement agency shall disclose a
copy of a visual or audio recording if the portion of the
recording that meets the criteria above can be redacted
from the recording.
2)Clarifies that state and local law enforcement agencies shall
disclose names and addresses of persons involved in or
witnesses to an incident as well as certain statements to the
victims of an incident, authorized representatives, certain
insurance carriers, and any person harmed as the result of the
incident, unless the disclosure would endanger the safety of a
victim.
3)Defines the term "records" to include a visual 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.
4)Defines the term "visual or audio recording" means any
photography, film, videotape, audio recording, or other visual
or audio reproduction.
5)Makes findings and declarations that in order to ensure the
privacy of victims, witnesses, and other persons involved in
law enforcement complaints and investigations, related audio
or video recordings should not be disclosed and that to
protect the public from graphic sounds and images that may be
contained in an audio or video recording depicting the death
or serious bodily injury of a peace officer, such a recording
should not be disclosed.
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6)Makes findings and declarations that the bill furthers the
right of public access to the meetings of local public bodies
or the writings of local public officials and local agencies.
7)Declares that no reimbursement is required pursuant to the
California Constitution because the only costs that may be
incurred by a local agency or school district would result
from a legislative mandate that is within the scope of the
CPRA and the Ralph M. Brown Act.
8)Makes various other technical and nonsubstantial corrections
to statute.
EXISTING LAW:
1)Generally requires, pursuant to the 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)Requires any agency to open its records concerning the
administration of the agency to public inspection, unless
disclosure is otherwise prohibited by law. (GC 6253 (b))
3)Exempts from disclosure any investigatory or security file
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. (GC 6254(f))
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4)Requires state and local law enforcement agencies to disclose
the names and addresses of persons involved in complaints or
investigations and various other information related to an
incident to a victim or any person who suffers bodily injury
or property damage or loss as the result of specified
incidents or crimes unless the disclosure would endanger the
safety of a witness or other person involved in the
investigation. (GC 6254(f))
5)Existing law requires state and local law enforcement agencies
to make public specific specified information relating to
individuals arrested by the agency for the commission of a
crime and the circumstances surrounding all complaints or
requests for assistance, among other things, except to the
extent that disclosure of a particular item of information
would endanger the safety of a person involved in the
investigation. (GC 6254(f))
6)Exempts from public disclosure in response to a CPRA 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." (GC 6255 (a))
7)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." (GC
6252(e))
8)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.
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(GC 3300, et seq.)
FISCAL EFFECT: Unknown
COMMENTS:
1)Purpose of this bill . This bill is intended to better protect
victim and peace officer privacy by generally exempting from
public disclosure any visual and audio records of death or
serious bodily injury that are "highly offensive" or that show
the death of a peace officer being killed in the line of duty,
with certain exceptions. This bill is sponsored by the Police
Officers Research Association of California (PORAC).
2)Author's statement . According to the author, "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. Oftentimes, victims of sexual crimes or domestic
violence are recorded during their initial contact with law
enforcement. Not only does the CPRA lack the privacy
protections for a victim as a witness, the Act 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."
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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
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
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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)Arguments in support . According to the California Peace
Officers' Association, "It is CPOA's strong belief that the
[CPRA] must better define what, if any, video obtained from
body worn camera are subject to disclosure. There are an
abundance of privacy issues that would dictate the importance
of the control and 'non-release' of such video. Some examples
are: sexual assault investigations, cases involving minors,
cases involving trauma, domestic violence, child abuse,
medical or mental health calls, or even simple calls form
service that may divulge?other private or confidential
matters. None of these examples and many more should not be
considered available to the public under the [CPRA]."
6)Related legislation . AB 1940 (Cooper) requires law
enforcement agencies deploying body-worn cameras to develop a
usage policy, allows peace officers to review their own
records before making a report, and exempts from disclosure
those records depicting the use of force resulting in serious
injury or death, as specified. This bill is pending in the
Assembly Public Safety Committee.
AB 2533 (Santiago) would require 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. AB 2533 is currently pending
in the Assembly Privacy and Consumer Protection Committee.
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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
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.
7)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 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.
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SB 175 (Huff) would have required 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.
8)Double-referral . This bill was double-referred to the
Assembly Judiciary Committee where it was heard on April 12,
2016, and passed 10-0.
REGISTERED SUPPORT / OPPOSITION:
Support
Peace Officers Research Association of California (PORAC)
(sponsor)
Association of Orange County Deputy Sheriffs
California Peace Officers' Association
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California Statewide Law Enforcement Association
Fraternal Order of Police (FOP)
Long Beach Police Officers Association
Sacramento County Deputy Sheriffs' Association
Opposition
None on file.
Analysis Prepared by:Hank Dempsey / P. & C.P. / (916) 319-2200