BILL ANALYSIS Ó
AB 2611
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CONCURRENCE IN SENATE AMENDMENTS
AB
2611 (Low)
As Amended June 22, 2016
Majority vote
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|ASSEMBLY: | 76-0 | (May 23, |SENATE: |23-6 |(August 15, |
| | |2016) | | |2016) |
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Original Committee Reference: JUD.
SUMMARY: Exempts from disclosure, in response to a California
Public Records Act (PRA) request, audio and video recordings
that show a peace officer being killed in the line of duty,
except with permission of the officer's surviving family, when
those recordings are within law enforcement investigative files.
The Senate amendments:
1)Delete provisions that exempted from mandated disclosure in
response to a PRA request those audio or video recordings that
depict death or serious bodily injury in a morbid,
sensational, and offensive manner.
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2)Delete the clarification 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.
3)Delete the provisions that required the agency to disclose a
copy of a visual or audio recording if the portion of the
recording that depicted the objectionable content could be
redacted from the recording.
4)Delete the following definitions:
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 Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
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
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,
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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
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,
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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.
Changes in the Senate. As originally passed by the Assembly,
this bill applied to all gruesome and morbid recordings, as well
as video recordings that depict the death of a police officer
killed in the line of duty. Also, the bill authorized, but did
not require, a law enforcement agency to withhold a gruesome or
morbid recording from the public in response to a PRA request.
Existing law already allows agencies to withhold gruesome or
offensive records. In addition to express exemptions for
specific types of non-public information, the PRA also 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." (Government Code Section 6255(a).)
Given the reality that public records, by their nature, are
likely to disclose information about private individuals to the
public, the interests of privacy are always an issue when
addressing the competing interests of disclosure and
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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 that the U.S. Supreme Court 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). Therefore, in considering the privacy
interests of the officer's family, an agency could withhold a
video depicting the death of a peace officer from disclosure to
the public in response to a PRA unless there were an even
stronger public interest in disclosure of the record. This
seems an appropriate balancing test. As currently drafted, this
bill would preclude the agency from balancing these interests.
It would prohibit the agency from disclosing the record, even if
the public interest in disclosure was compelling, unless the
deceased officer's immediate family consented to the disclosure.
Analysis Prepared by:
Alison Merrilees / JUD. / (916) 319-2334 FN:
0004228
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