BILL ANALYSIS Ó
AB 2611
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ASSEMBLY THIRD READING
AB
2611 (Low)
As Amended April 14, 2016
Majority vote
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |Ting | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Privacy |9-0 |Chau, Wilk, Calderon, | |
| | |Chang, Cooper, | |
| | |Dababneh, Gatto, | |
| | |Gordon, Low | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Appropriations |20-0 |Gonzalez, Bigelow, | |
| | |Bloom, Bonilla, | |
| | |Bonta, Calderon, | |
| | |Chang, McCarty, | |
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| | |Eggman, Gallagher, | |
| | |Eduardo Garcia, Chau, | |
| | |Holden, Jones, | |
| | |Obernolte, Quirk, | |
| | |Santiago, Wagner, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Exempts from disclosure, in response to a California
Public Records Act (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, 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 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.
b) Any visual or audio recording of the death of a peace
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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 2)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.
FISCAL EFFECT: According to the Assembly Appropriations
Committee, any costs to the state and local agencies would be
minor and absorbable.
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
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discussing, or pictorial media portraying, the life of a
decedent. "It is well settled that the right of privacy is
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
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government records. The federal Freedom of Information Act
(FOIA), on which the PRA is 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 United States Code Section 552.) In Nat'l
Archives & Records Admin. v. Favish (2004) 541 U.S. 157, the
United States (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.
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. In addition to express exemptions for private
information, the PRA, 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." Given
the reality that public records, by their nature, are likely to
disclose information about private individuals to the public,
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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
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 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 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.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN: 0003018
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