BILL ANALYSIS Ó
AB 2611
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Date of Hearing: August 23, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2611
(Low) - As Amended June 22, 2016
FOR CONCURRENCE
SUBJECT: THE CALIFORNIA PUBLIC RECORDS ACT: EXEMPTIONS
KEY ISSUE: Should the California public records act be amended
to prohibit DISCLOSURE of an entire category of public records -
ANY audio or video recording depicting the death of a peace
officer - unless disclosure is authorized by the peace officer's
immediate family?
SYNOPSIS
As originally heard by this Committee, this bill would have
clarified that an audio or video recording compiled by a law
enforcement agency is a "public record" for purposes of the
California Public Records Act (CPRA). More important, it would
have exempted from mandatory disclosure under the CPRA any
visual or audio recording that depicted either of the following:
(1) the death or serious bodily injury of any person in a
morbid, sensational, or highly offensive manner, such that the
public interest in disclosure is clearly outweighed by the
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public interest in nondisclosure; or (2) the death of a peace
officer killed in the line of duty, unless disclosure is
authorized by the officer's immediate family. The prior version
of the bill modified an existing provision of the CPRA that
imposes conditions on the disclosure of investigatory records
held by law enforcement agencies, and like other exemptions in
that provision, it only provided that an agency was not
"required" to disclose such a recording; but, like other
exemptions, it would not have prevented an agency from
voluntarily disclosing the public record if it thought that the
interest in disclosure outweighed the interest in nondisclosure.
As amended in the Senate and presently before this Committee,
however, the bill scraps that approach and adds a new section to
the CPRA creating a blanket restriction on the disclosure of a
video or audio recording that depicts the death of a peace
officer in the line of duty, unless the peace officer's family
consents to disclosure. The bill would no longer exempt any
morbid, sensational, or highly offensive depiction of a person
who is not a peace officer. In addition, the bill no longer
permits disclosure of those parts of the recording that do not
depict the death of the officer. Finally, and perhaps most
significantly, by adding a new section to the CPRA this bill
creates an absolute prohibition on the disclosure of those
recordings, absent family consent. The prior version of the
bill, because it amended an existing list of exemptions, gave
the agency the discretion to disclose the recording. That is,
the CPRA exemption statute states that an agency is not
"required" to disclose exempted records; however, an agency may
voluntarily disclose such records so long as disclosure is not
expressly prohibited. This bill would remove agency discretion
when it comes to recordings depicting the death of an officer.
It would also remove the agency's discretion to withhold the
recording if the family authorizes disclosure thereby giving
private parties, rather than public agencies, the responsibility
for making decisions whether to release records held by the
agencies, something which is unprecedented in the CPRA. As
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required by the California constitution, this bill sets forth
legislative findings that demonstrate the need for restricting
access to public records. However, as noted below, the
rationale set forth is not entirely consistent with the
substantive provision of the bill. The bill is supported by
several state and regional law enforcement groups and opposed by
newspaper publishers and the ACLU.
SUMMARY:
1)Prohibits a public agency from disclosing a visual or audio
recording of the death of a police officer killed in the line
of duty, unless the disclosure is authorized by the peace
officer's immediate family. Specifies that if the immediate
family does authorize disclosure, then the public agency shall
disclose the recording.
2)Makes legislative findings, as required by the California
Constitution, to demonstrate the public interest in imposing a
limit on the public's right to access public records.
EXISTING LAW:
1)Provides, under the California Public Records Act (CPRA), that
all public agency records are open to public inspection upon
request, unless the records are otherwise exempt from public
disclosure. (Government Code Section 6250 et seq. All
further statutory references are to this code, unless
otherwise indicated.)
2)Requires any agency to open its records concerning the
administration of the agency to public inspection, unless
disclosure is otherwise prohibited by law. (Section 6253
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(b).)
3)Exempts from disclosure in response to a CPRA request the
records of complaints to, or investigations conducted by, or
records of intelligence information or security procedures of,
the office of the Attorney General and the Department of
Justice, the Office of Emergency Services and any state or
local police agency. (Section 6254 (f).)
4)Exempts from public disclosure in response to a CPRA request
other records that are not specifically exempt 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." (Section 6255 (a).)
5)Defines a "public record" to mean "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."
(Section 6252 (e).)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: As a general rule, California law does not grant a
person a right of privacy in the images or media portrayals of
the person's deceased family members: "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 omitted.] Further, the
right does not survive but dies with the person." [Hendrickson
v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59, 62,
(affirming the dismissal of an action for invasion of privacy
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brought by deceased's surviving family members against a
newspaper that published an obituary revealing deceased's prior
criminal conviction).] Notwithstanding this general rule, a
2010 California appellate court case, Catsouras v. Department of
California Highway Patrol (2010) 181 Cal.App.4th 856, suggests
that family members of a decedent may have a common law invasion
of privacy action based upon the public release of death images
of a loved one. (Id at p. 864.) In Catsouras, 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 in turn 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.)
The Catsouras decision may lend some support to that provision
in the prior version of the bill that allowed an agency to
withhold particularly morbid and sensational images, if it were
to such an extent that public interest in disclosure would be
clearly outweighed by the public interest in nondisclosure.
However, the Catsouras case does not support a blanket
restriction on the disclosure of any depiction of the death of a
peace officer, regardless of the context, the nature of the
killing, or the strength of the competing public interest in
disclosure. Moreover, in Catsouras, the images were not
released by a law enforcement agency pursuant to a public
records request; rather, the images were apparently negligently
transmitted to the friends and family of peace officers and
subsequently posted (and repeatedly re-posted) on the Internet.
This bill seems both under-inclusive and over-inclusive: it only
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applies to the death of a peace officer (even though family
members of public servants may be equally offended by images
depicting the death of a loved one); it applies to the depiction
of any death of a police officer, whether or not the depiction
is particularly morbid, sensational, or offensive; and finally,
by referring to "a visual or audio recording," it applies to the
entirety of a recording that shows the death of a peace officer,
not just the portion of the recording which depicts the death of
a peace officer. As the ACLU notes in its letter of opposition,
it is not clear why the family of peace officers alone could
claim a right to prohibit disclosure if the bill is premised on
the notion that a grieving family's pain and suffering should
not be subject to images depicting the death of a loved one. A
family's grief is not any more or less compelling because of the
decedent's occupation.
The prior version of bill, like existing law, would not
"require" a law enforcement agency to withhold an image of the
killing of a peace officer in the line of duty. The CPRA
contains an array of both highly specific and fairly general
exemptions. Except where the CPRA expressly declares that
certain information in a public record is "confidential" or
expressly prohibits disclosure, however, the general exemptions
listed in the CPRA are not construed as necessarily prohibiting
the disclosure of exempted records. Rather, the exemption
statute states that an agency is not "required" to disclose
exempted records; however, an agency may voluntarily disclose
such records so long as disclosure is not expressly prohibited.
A policy favoring some degree of discretion is also seen in a
provision of the CPRA that exempts otherwise public records from
disclosure when due to 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." (Section 6255 (a).) Because public records may
sometimes disclose information about private individuals to the
public, the public interest in maintaining some protection for
personal privacy is one of the competing interests that may
justify withholding public records from disclosure. Where, for
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example, the harm caused by an invasion of privacy "clearly
outweighs" any public interest in disclosure, then it would be
appropriate for the agency to withhold the private information.
Indeed, while the primary goal of CPRA is to ensure the public's
right to access to information about the conduct of the people's
business, the CPRA expressly states that the legislature is
"mindful of the right of individuals to privacy," and some CPRA
provisions expressly protect sensitive personal information
(e.g. medical or financial information) from disclosure, even if
the information is contained in a public record. (See e.g.
Government Code Sections 6250 and 6254 (c).)
Still, there can be no question that the CPRA tips the scales
heavily in favor of disclosure, as is clearly illustrated by the
requirement in Section 6255 that the public interest in
nondisclosure must "clearly outweigh" the public interest in
disclosure before a public record may be withheld. Thus, under
existing law, an agency could not withhold a recording depicting
the death of an officer merely because the agency believed that
the interest in protecting the privacy of the family was greater
than the public interest in disclosure; rather, the interest in
nondisclosure would need to "clearly" outweigh the interest in
disclosure. Would, for example, a depiction of the killing of
an officer be so inflammatory, or so hurtful to the officer's
surviving family members, that the interest in nondisclosure
"clearly" outweighed any public interest in this otherwise
disclosable public record? This bill, however, would render
such a balancing test unnecessary, for it would simply declare
that any depiction of a peace officer's death in the line of
duty is never disclosable unless the officer's immediate family
consents to disclosure. Apparently, the only consideration
under this bill concerns the wishes of the family. Not only
does the agency have no discretion to disclose the image without
the family's consent; the bill expressly states that if the
family does consent, then the agency "shall" disclose the image.
The Committee is not aware of any other provision in the CPRA
in which the wishes of immediate family members can act as an
absolutely bar on the disclosure of a public record or,
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conversely, as an absolute mandate that a public record be
disclosed, notwithstanding the agency's assessment of the
competing public interests in disclosure or nondisclosure.
Current bill has no provision for releasing parts of the
recording. As originally heard by this Committee, this bill
would have required disclosure of the visual or audio recording
if the depictions of the killing could be redacted from the
recording. This bill, however, contains no such express
exemption. Rather, if the recording depicts the death of a
peace officer in the line of duty, then presumably the entire
recording cannot be disclosed unless the immediate family
authorizes disclosure.
Which member of the immediate family must consent to disclosure?
As noted, the bill prohibits an agency from disclosing a
recording "unless the disclosure is authorized by the peace
officer's immediate family." Would all members of the peace
officer's immediate family (father, mother, sibling, son,
daughter, or spouse) need to consent? For example if the spouse
consented to disclosure of the recording, but the children,
parents, and siblings objected, would this be sufficient for the
agency to disclose the recording? Moreover, these unanswered
questions potentially raise the specter that an agency could be
exposed to civil liability for its decision to release (or not
release) a recording in the case of conflicting wishes of
immediate family members.
Legislative findings are not consistent with substantive
provision of the bill as well as the policy of the CPRA.
Because public policy in California so strongly favors
disclosure of public records, the California Constitution
requires that any legislation that imposes a limitation on
access to public records must include legislative findings "to
demonstrate the interest protected by this limitation and the
need for protecting that interest." [Article I, Section 3
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(b)(2).] The bill finds that its limitation on access to public
records "ensures the privacy" of law enforcement personnel and
protects their families from "additional emotional trauma," and
that it would protect the public from "graphic sounds and morbid
images" that would be contained in any recording depicting the
killing of an officer. However, this statement is not quite
accurate, as the bill no longer requires that images be
especially "graphic" or "morbid." More problematic, however, is
the finding that 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 property balances the public's right to access public
records with proper privacy interests." Even if this bill does
in fact strike that proper balance, this statement is not an
accurate description of the substantive part of the bill.
First, the prohibition is "limited" and "conditional" only to
the extent that the immediate family consents to disclosure;
otherwise, the bill creates an absolute prohibition on
disclosure. Second, the findings suggest that the limitation
only applies "when other public records relating to the death
may be available for public inspection." There is, in fact, no
language in the bill suggesting that the prohibition only
applies "when other public records relating to the death may be
available for public inspection."
ARGUMENTS IN SUPPORT: PORAC, the sponsor, writes the following
in support of the bill:
A peace officer receiving 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 that loved one's death will
be open to the public to be viewed over and over again.
The Fraternal Order of Police also writes as follows:
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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 officer to be kept confidential. We commend
the author for protecting fellow law enforcement officers
and families of fallen officers.
ARGUMENTS IN OPPOSITION: Writing in opposition, the ACLU
observes the following:
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.
The California Newspaper Publishers Association observes that
the exemption for recordings of peace officer deaths is likely
unnecessary and the bill as a whole is overbroad:
The public interest balancing test found in Government Code
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Section 6255 already 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.
AB 2611 would swallow up the exception to the rule allowing
disclosure of valuable information about those who are
arrested and would upend 40 years of careful, balanced
policy development by the Legislature, the courts and all
of the stakeholders in this critical, technical area of the
law.
Pending and Recent Related Legislation: AB 1246 (Quirk)
prohibits, in response to a CPRA request, the disclosure of a
recording made by a body worn camera, except to the person whose
image is recorded by the body worn camera. This bill died
without a hearing in the Assembly Public Safety Committee.
AB 1520 (Stone) amends a provision of the CPRA that exempts from
disclosure certain personal information about customers of local
utility agencies to specify that this exemption only applies to
the personal information residential utility customers, and by
implication not to commercial, industrial, or public agency
customers.
AB 2498 (Bonta) would exempt from disclosure under the CPRA the
name, home address, and images of a victim of human trafficking,
and of the victim's immediate family, as specified. As amended
in this Committee specifies that the exemption would not apply
to any family members who were perpetrators of human
trafficking.
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
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county office of education to include the employees personal
cell phone number and personal email address.
AB 2853 (Gatto) authorizes a public agency to post public
records on its Internet website and to direct a person
requesting such a record to that website. However, if the
person making the request lacks the ability to access or
reproduce records on the website, the agency must provide copies
of any record for an appropriate fee.
REGISTERED SUPPORT / OPPOSITION:
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
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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
Opposition
American Civil Liberties Union of California
California Newspaper Publishers Association
Analysis Prepared by:Alison Merrilees and Thomas Clark / JUD. /
(916) 319-2334
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