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








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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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