BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2611 Hearing Date: June 28, 2016
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|Author: |Low |
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|Version: |June 22, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|JRD |
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Subject: The California Public Records Act: Visual or Audio
Recording of Peace Officer's Death: Conditional Exemption from
Disclosure
HISTORY
Source: Peace Officers Research Association of California
Prior Legislation:None known
Support: Fraternal Order of Police; Association of District
Attorneys; Association for Los Angeles Deputy
Sheriffs; Association of Orange County Deputy
Sheriffs; Long Beach Police Officers Association; Los
Angeles Police Protective League; the Los Angeles
County Deputy Probation Officers Union, AFSCME, Local
685; the Riverside Sheriffs' Association; Sacramento
County Deputy Sheriffs' Association; California
Statewide Law Enforcement Association
Opposition:American Civil Liberties Union of California;
California Newspaper Publishers Association;
Electronic Frontier Foundation; Legal Services for
Prisoners with Children
AB 2611 (Low ) Page
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Assembly Floor Vote: 76 - 0
PURPOSE
The purpose of this bill is to 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, as specified.
Existing law, the California Constitution, declares the people's
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.)
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 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. (Government Code § 6254 et seq.)
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
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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).)
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. (Government Code § 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. (Government Code § 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. (Government Code
§ 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. (Government Code § 6252(g).)
This bill prohibits a public agency from disclosing a visual or
audio recording of the death of a peace officer killed in the
line of duty, unless the disclosure is authorized by the peace
officer's immediate family. If a peace officer's immediate
family authorizes the disclosure of a visual or audio recording
of the death of the peace officer killed in the line of duty,
the public agency is required to disclose the visual or audio
recording.
This bill makes the following legislative finding and
declaration to demonstrate the interest protected by this
limitation and the need for protecting that interest:
"Prohibiting the disclosure of a visual or audio recording of
the death of a peace officer killed in the line of duty ,
without the consent of the peace officer's immediate family,
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ensures the privacy of persons who serve in law enforcement and
their immediate families, protects those families from
additional emotional trauma from public displays of those
images, and further protects the public from the graphic sounds
and morbid images that would be contained in a visual or audio
recording of the death of a peace officer in the line of duty.
By providing for a limited, conditional disclosure of these
recordings, when other public records relating to the death may
be available for public inspection, this act properly balances
the public's right to access public records with proper privacy
interests."
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,
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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,
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 This Legislation
According to the author:
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[T]he CPRA does not address the issue of the release
of any video that depicts the death of a peace officer
while acting in the line of duty. A peace officer
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. Effect of This Legislation
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
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.)
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." Thus, 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 death of a
civilian could only be withheld from the public if it 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. The opposition explains
the use of the balancing test:
The public interest balancing test found in Government Code
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Section 6255 currently 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.
We believe agencies are best suited to weigh these
competing interests based on the information before them
and balance the interests when making a decision in
response to a CPRA request.
The opposition, additionally, states:
Eliminating the discretion of the agency to determine
whether or not to disclose a recording and placing
that decision-making authority in the hands of a
grieving family who may not be able to identify a
public interest in disclosure let alone balance that
interest against their own desire to prevent the
public from viewing or hearing the recording would be
a dangerous and unprecedented change in the law.
Members may wish to consider what deficiencies, if any, there
are in the existing law that necessitate the need for an
exception for videos of the death of a peace officer.
SHOULD PEACE OFFICERS AND THEIR FAMILIES BE ENTITLED TO GREATER
PRIVACY PROTECTIONS THAN THE GENERAL PUBLIC?
3. Argument in Support
According to the Fraternal Order of Police:
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 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
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officer to be kept confidential. We commend the author
for protecting fellow law enforcement officers and
families of fallen officers.
4. Argument in Opposition
According to the American Civil Liberties Union of California:
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.
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