BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2611 (Low)
Version: April 14, 2016
Hearing Date: June 21, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
The California Public Records Act: exemptions
DESCRIPTION
The bill would exempt from disclosure under the California
Public Records Act any audio or video recording depicting the
death of a peace officer killed in the line of duty, unless
authorized to be released by the officer's immediate family.
This bill would also exempt from disclosure any visual or audio
recordings that depict 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, except as specified.
BACKGROUND
The California Public Records Act (CPRA) governs the disclosure
of information collected and maintained by public agencies.
Generally, all public records are accessible to the public upon
request, unless the record requested is exempt from disclosure.
(Gov. Code Sec. 6254 et seq.) There are 30 general categories of
documents or information that are exempt from disclosure,
essentially due to the character of the information, and unless
it is shown that the public's interest in disclosure outweighs
the public's interest in non-disclosure of the information, the
exempt information may be withheld by the public agency with
custody of the information.
AB 2611 (Low)
Page 2 of ?
On August 9, 2014, Michael Brown was shot by Officer Darren
Wilson in Ferguson, Missouri during the course of an arrest for
an alleged robbery. While Wilson was not indicted for his
actions, the incident demonstrated the tremendous difficulties
in determining crucial facts related to use of force by police
against members of the public.
In the wake of Ferguson and other incidences involving
allegations of police misconduct, communities across the country
are outfitting police forces with body cameras. In fact, body
cameras have emerged as a rare point of agreement between reform
advocates and law enforcement officials. Many officers report
that the equipment changes citizen behavior and helps deescalate
confrontations between civilians and police. They also claim
that body cameras improve evidence collection, and help them
more accurately recollect events and fill out reports. (Wing,
Study Shows Less Violence, Fewer Complaints When Cops Wear Body
Cameras (2015) Huffington Post
[as of June 7, 2016].)
That being said, body cameras also pose a substantial threat to
privacy. With an activated camera constantly documenting
everything a police officer sees and does, sensitive content,
such as the interior of private residences, interviews with
victims, and discussions with confidential informants, may be
recorded and potentially preserved for public inspection. Thus,
in order for body cameras to both increase police accountability
and protect privacy rights, the Legislature must balance what
footage should be available for public review versus the footage
that should be kept confidential.
This bill, which has been double referred to the Senate
Committee on Public Safety, would exempt from disclosure any
non-redactable portion of an audio or visual recording depicting
the death of a peace officer killed in the line of duty, and
visual or audio recordings that depict death or serious bodily
injury of any person in such a morbid and sensational manner
that the content is highly offensive to a reasonable person and
any public interest purpose for disclosure is clearly outweighed
by the public interest in nondisclosure.
CHANGES TO EXISTING LAW
Existing law , the California Constitution, declares the people's
AB 2611 (Low)
Page 3 of ?
right to transparency in government. ("The people have the
right of access to information concerning the conduct of the
people's business, and therefore, the meetings of public bodies
and the writings of public officials and agencies shall be open
to public scrutiny....") (Cal. Const., art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA), governs
the public disclosure of information collected and maintained by
public agencies. (Gov. Code Sec. 6250 et seq.) Generally, all
public records are accessible to the public upon request, unless
the record requested is exempt from public disclosure. (Gov.
Code Sec. 6253.) There are 30 general categories of documents
or information that are exempt from disclosure, essentially due
to the character of the information, and unless it is shown that
the public's interest in disclosure outweighs the public's
interest in non-disclosure of the information, the exempt
information may be withheld by the public agency with custody of
the information. (Gov. Code Sec. 6254 et seq.)
Existing law requires that any reasonably segregable portion of
a record shall be available for inspection by any person
requesting the record after deletion of the proportions that are
exempted by law. (Gov. Code Sec. 6253(a).)
Existing law , for records not subject to an exemption, may be
withheld if the agency demonstrates 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. (Gov. Code Sec. 6255.)
Existing law defines "public record" as 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. (Gov. Code Sec.
6252(e).)
Existing law defines "writing" to include any handwriting,
typewriting, printing, photography, transmitting by electronic
mail or facsimile, and every other means of recording upon any
tangible thing any form of communication or other
representation, regardless of the manner in which the record has
been stored. (Gov. Code Sec. 6252(g).)
This bill would clarify that an audio or video recording
compiled by the office of the Attorney General and the
AB 2611 (Low)
Page 4 of ?
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 (CPRA).
This bill would exempt the following law enforcement records
from disclosure to the public in response to a CPRA request:
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; and
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.
This bill would require the agency to disclose a copy of a
visual or audio recording if the exemptible portions of the
recording (noted in the bullets immediately above), can be
redacted from the recording.
This bill would define "record" to include 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.
This bill would define "visual or audio recording" to mean any
photograph, film, videotape, audio recording, or other visual or
audio reproduction.
COMMENT
1.Stated need for the bill
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. . . .[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
AB 2611 (Low)
Page 5 of ?
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.
2.Transparency versus privacy
Across the country, the past few years have marked a sharp
decrease in the public's trust of the police. In an effort to
restore this trust, many communities and departments have
employed officer-worn body cameras so that the public may have a
realistic account of police work. Yet, despite this climate,
under the CPRA the police maintain largely unfettered discretion
to withhold records that are relevant to the public interest.
Most recordings will arguably fall under the investigatory
exemption, and records that do not fall within an exemption can
be withheld under a "catchall" provision which requires only a
balancing test (see Comment 3 below). This bill, while
requiring the disclosure of recordings that are protected by the
investigatory exemption, undercuts transparency by also
requiring the redaction of visual and audio elements that could
be highly relevant to the public interest.
In addition, this bill fails to address the fact that the
balancing test under existing law is only required when an
agency is justifying the withholding of a public record. Law
enforcement is not required to engage in a similar analysis
prior to disclosure of information that may be in violation of
an individual's privacy rights. Arguably, disclosure that serves
no legitimate public interest at the expense of privacy could
also undermine public trust in law enforcement. Thus, as a
matter of public policy the Legislature may wish to consider
whether a balancing test should also be required prior to the
disclosure of content that may infringe on an individual's right
to privacy.
3.Bill affects records that fall under the investigatory
exemption
The California Public Records Act (CPRA) provides that public
records are open to inspection at all times during the office
hours of a state or local agency, and that every person has a
right to inspect any public record, unless otherwise exempted
AB 2611 (Low)
Page 6 of ?
from disclosure. Existing law further provides, that in the
event that a record contains non-disclosable information, "any
reasonably segregable portion of the record shall be available"
to the requestor. (Gov. Code Sec. 6253.)
Notably, records of complaints and investigations conducted by
the police, or any investigatory or security files compiled by
the police are exempted from disclosure under the CPRA. (Gov.
Code Sec. 6254(f).) With regard to records that are not covered
by an exemption, police agencies may withhold any record if "on
the facts of the particular case the public interest served by
not disclosing the record clearly outweighs the public interest
served by the disclosure of the record." (Gov. Code Sec. 6255.)
Furthermore, while public records laws may have been passed to
promote good governance and public accountability, the CPRA does
not "allow limitations on access to a public record based upon
the purpose for which the record is being requested, if the
record is otherwise subject to disclosure." (Gov. Code Sec.
6257.5.) Thus, public records may be used for any purpose,
including for commercial purposes, and custodians of public
records are advised to not inquire into the motives behind the
request.
This bill would require the disclosure of certain audio or
visual records that a law enforcement agency would otherwise be
able to withhold under the investigatory exemption.
a) Offers more privacy protection to images of police
officers than to images of civilians without adequate
justification
This bill would prohibit the disclosure of "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." For civilians, this bill would
instead employ a balancing test to determine whether or not
the record should be kept confidential. Specifically, the bill
would provide for the non-disclosure of "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."
Thus, this bill arguably rests on two flawed premises: (1)
AB 2611 (Low)
Page 7 of ?
that police officers and their families are entitled to
greater privacy protections than the general public; and (2)
that any public interest in the circumstances surrounding any
officer's death is automatically outweighed by privacy
interests. These premises, as a practical matter, could easily
lead to an illogical application of the law which would not
serve to promote transparency or accountability in government.
For example, under this bill, a video of an officer who died
in the line of duty would be automatically exempted from the
CPRA, but a similar video depicting the police shooting of a
civilian would maintain confidentiality only if a series of
burdens were met, including a finding that the video was so
highly offensive to a reasonable person that any public
interest or law enforcement purpose for its disclosure is
outweighed by the public interest in nondisclosure. Staff
additionally notes that by including "law enforcement purpose
for disclosure" in the balancing test, this bill expressly
contradicts the CPRA.
1.Reasonable expectation of privacy should be protected
Although a Fourth Amendment search and seizure analysis
regarding police camera footage is not required by this bill,
that framework is helpful in determining when police audio or
visual recordings may impermissibly intrude on a person's
reasonable expectation of privacy, which is greatest in the
home. On a daily basis, police interact with individuals whose
identities are sensitive, such as confidential informants and
witnesses, and with people at very low or vulnerable points in
their lives, including individuals being arrested and victims
giving emotional or graphic statements. Public disclosure of
many of these interactions could violate a person's privacy
without serving any legitimate public interest. If constantly
recording, body camera footage may also compromise the privacy
of the officers wearing a camera.
Thus, depending on the circumstances, police camera footage may
be intrusive for both police officers and members of the public.
However, such devices have been shown to reduce violence,
improve evidence gathering, and increase police legitimacy. The
use of cameras ensures that both the police and the public they
interact with are "on their best behavior." Ultimately, the goal
of equipping police officers with body cameras is to provide a
record of police conduct, which should improve public trust in
the police. That being said, failing to protect the privacy of
AB 2611 (Low)
Page 8 of ?
individuals may have the unintended consequence of chilling the
public's willingness to engage with the police investigations,
and thus limit the agency's ability to adequately serve the
community.
Existing law, recognizing the need for a balance between
transparency and privacy, requires that even when a record
contains information or material that is non-disclosable, "any
reasonably segregable portion of a record shall be made
available." For records which fall within the investigatory
privilege, this bill would similarly provide that if the killing
death or serious bodily injury (see 2(a) above) can be redacted
from the recording, the agency must disclose the record. Yet, as
a matter of public policy, the inquiry should be framed as one
of competing interests, and whether (or how) both interests can
be achieved. As noted above, if the death or serious bodily
injury of a person exposes police misconduct, the public
interest in transparency would not be served by keeping that
record confidential. Yet, to disclose a video of a routine
welfare check on an individual in his or her home, would violate
that person's reasonable expectation of privacy.
Staff further notes that for the purpose of audio and visual
records, the terms "segregable" and "redact" are vague terms.
For example, in a situation where a witness's expectation of
privacy is violated, it is not clear whether an entire witness
interview would be deleted from the video, or his face merely
blurred. The following amendment would require that the
releasing agency take into account the privacy interests of
individuals and police officers alike, and require the agency,
to the extent practical, to anonymize, rather than redact,
content before making audio or visual records available to the
public.
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; 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
AB 2611 (Low)
Page 9 of ?
Opposition : American Civil Liberties Union of California;
California Newspaper Publishers Association
HISTORY
Source : Author
Related Pending Legislation :
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
county office of education to include the employees personal
cell phone number and personal email address.
AB 2853 (Gatto) would authorize a public agency to post public
records on its Internet Web site and to direct a person
requesting such a record to that Web site, as specified.
Prior Legislation : None Known.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Privacy and Consumer Protection Committee (Ayes 9, Noes
0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************