BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1491 S
Senator Kuehl B
As Amended March 30, 2006
Hearing Date: April 4, 2006 1
Civil Code 4
AMT:cjt 9
1
SUBJECT
Domestic Violence: Personal Information
DESCRIPTION
This bill would establish that a victim service provider,
as defined, may not be required to reveal the personally
identifying information of its clients or potential clients
as a part of applying for or receiving grants or financial
assistance for its services. The bill is designed to apply
to entities seeking state or local funding, since federal
laws similarly protect the personally identifying
information of clients for entities that receive federal
funding. The bill would permit a victim service provider
that is aggrieved by a violation to seek an injunction.
The bill would also award mandatory attorney's fees to a
prevailing plaintiff if the defendant was given notice of
the asserted violation and did not cease the violation
within five business days.
BACKGROUND
The federal law was recently amended to restrict entities
that receive federal grants under the Violence Against
Women Act (VAWA), the Family Violence Prevention and
Services Act (FVPSA), or the McKinney-Vento Homeless
Assistance Act from disclosing, or posting on specified
databases, the personally identifying information of people
seeking victim services from those entities. The National
Network to End Domestic Violence asserts that Congress has,
through these amendments, "clarifie[d] and affirm[ed]
(more)
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existing confidentiality practices that protect the safety
and privacy of victims of domestic violence, dating
violence, sexual assault, and stalking."
Although the above laws clearly restrict the disclosure of
personally identifying information by entities that are
funded by federal grants, the author asserts that
California law is silent on the question of what
restrictions apply to similar entities that are funded by
state and local grants. According to the bill's sponsor,
the Los Angeles City Attorney's Office: "funders throughout
the state are requiring victim service providers to release
birthdates, social security numbers and other personally
identifying information of their clients to receive
funding." According to the author, victim service
providers in Los Angeles, Orange, Santa Cruz, San
Francisco, and San Bernardino Counties have been asked to
provide personally identifying information for clients as a
condition of receiving funding, primarily CalWORKS funding.
Those providers were informed that their failure to
provide the requested information would result in a loss of
funding and, in some instances, funding was withheld until
the information was released. The author states that these
demands for information included the following: (1) demands
for provision of two of three pieces of client information:
CalWORKS number, full name, or full social security
number; (2) demands for a date of birth; and (3) demands
for sign-in and sign-out sheets containing client names,
location of sessions, and the content of the sessions.
This bill is intended to clarify that those entities which
provide local and state funding for victim support services
cannot request or require, in the course of awarding grants
or other financial assistance, that a victim service
provider disclose the personally identifying information of
a person who sought services from the provider.
CHANGES TO EXISTING LAW
Existing federal law prohibits entities who receive federal
grant funds under VAWA or FVPSA ("grantees") from: (1)
disclosing any personally identifying information or
individual information collected in connection with
services requested, utilized, or denied through the
grantees' programs; or (2) revealing individual client
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information without the informed, written, and reasonably
time-limited consent of the person about whom the
information is sought. [42 U.S.C. 13925(b)(2)(B).]
Existing federal law provides, in cases where a statutory
or court mandate compels the release of the above
information, that the grantee: (1) make reasonable
attempts to notify victims affected by the disclosure of
the information; and (2) take steps necessary to protect
the privacy and safety of the persons affected by the
release of the information. [42 U.S.C. 13925(b)(2)(C).]
Existing federal law permits grantees to share: (1)
nonpersonally identifying data in the aggregate regarding
services provided to clients and nonpersonally identifying
demographic information in order to comply with specified
reporting requirements; (2) court-generated information and
law-enforcement generated information contained in secure,
governmental registries for protection order enforcement
purposes; and (3) law enforcement- and
prosecution-generated information necessary for law
enforcement and prosecution purposes. [42 U.S.C.
13925(b)(2)(D).]
Existing federal law requires that "victim service
providers" who receive specified grant funds be instructed
not to disclose personally identifying information about
any client for purposes of a Homeless Management
Information System. Existing federal law permits providers
to be asked for non-personally identifying data that has
been de-identified, encrypted, or otherwise encoded for
purposes of a Homeless Management Information System,
following public notice and comment. [42 U.S.C.
11383(a)(8)(A).]
Existing federal law defines "personally identifying
information" as individually identifying information for or
about an individual including information likely to
disclose the location of a victim of domestic violence,
dating violence, sexual assault, or stalking, including:
A. a first and last name;
B. a home or other physical address;
C. contact information (including a postal, e-mail or
Internet protocol address, or telephone or facsimile
number);
SB 1491 (Kuehl)
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D. a social security number; and
E. any other information, including the date of birth,
racial or ethnic background, or religious affiliation,
that, in combination with any other non-personally
identifying information would serve to identify the
individual.
[42 U.S.C. 11383(a)(8)(B)(i); 42 U.S.C.
13925(a)(18).]
Existing federal law defines a "victim service provider" as
a nonprofit, nongovernmental organization including rape
crisis centers, battered women's shelters, domestic
violence transitional housing programs, and other programs
whose primary mission is to provide services to victims of
domestic violence, dating violence, sexual assault, or
stalking. [42 U.S.C. 11383(a)(8)(B)(ii).]
This bill would make it unlawful for a person or entity -
in the course of awarding grants or providing financial
support or assistance "for the purpose of providing
shelter, programs, or services at low cost, no cost, or on
a sliding scale to victims of domestic violence, dating
violence, sexual assault, or stalking, or their children"
to a victim service provider - to require or request that
the provider disclose personally identifying information
regarding any person for whom it is providing, is
considering providing, has provided, or has considered
providing services.
This bill would make it unlawful for a person or entity -
in the course of awarding grants or providing financial
support or assistance "for the purpose of providing
shelter, programs, or services at low cost, no cost, or on
a sliding scale to victims of domestic violence, dating
violence, sexual assault, or stalking, or their children"
to a victim service provider - to require or request that
the provider use any computer software, computer program,
computer protocol, or other computer system that requires
disclosure of personally identifying information regarding
any person for whom it is providing, is considering
providing, has provided, or has considered providing
services.
This bill would define "personally identifying information"
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as:
A. First and last name or last name only.
B. Home or other physical address, including, but not
limited to, a street name or zip code, other than an
address obtained pursuant to the California Safe At Home
program or a business mailing address for the victim
service provider.
C. Electronic mail address or other online contact
information, such as instant messaging user identifier
or a screen name that reveals an individual's electronic
mail address.
D. Telephone number, other than a business telephone number
for the victim service provider.
E. Social security number.
F. Date of birth, with the exception of the year of birth.
G. Internet Protocol address or host name that identifies
an individual.
H. Any other information, including, but not limited to,
the first and last names of children or relatives,
racial or ethnic background, or religious affiliation,
that, in combination with any other nonpersonally
identifying information, would serve to identify any
individual.
This bill would define "victim service provider" as a
nongovernmental organization or entity that provides
shelter, programs, or services at low cost, no cost, or on
a sliding scale to victims of domestic violence, dating
violence, sexual assault, stalking, or their children,
either directly or through contractual arrangements,
including rape crisis centers, domestic violence shelters,
domestic violence transitional housing programs, and other
programs with the primary mission to provide services to
victims of domestic violence, dating violence, sexual
assault, or stalking, or their children, whether or not the
program exists in an agency that provides additional
services.
This bill would permit a victim service provider that is
aggrieved by a violation of this title to obtain injunctive
relief. This bill would also entitle a prevailing
plaintiff to court costs and reasonable attorney's fees if
the plaintiff provided notice of this section and the
asserted violation to the defendant, and the defendant
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failed to cease the violation within five business days of
receiving notice.
COMMENT
1. Stated need for the bill
The Los Angeles City Attorney's Office states that it
sponsored the bill "because of the critical need to
protect the privacy and safety of victims who seek
shelter and other services from ? victim service
providers." The author states that this bill will make
it clear that those entities which provide local and
state funding for victim services in California may not
require a victim service provider to release a client's
personally identifying information as a condition of
receiving funding. In the absence of clear state law,
the author states that a number of funding entities
have required victim service providers to provide
clients' personally identifying information as a
condition of providing funding. Supporters argue that
these demands put service providers in the difficult
position of either forgoing necessary funding or
violating the trust - and possibly endangering the
physical safety - of their clients.
Supporter Privacy Rights Clearinghouse states that
victim service providers already struggle to earn
clients' trust, and will suffer in this struggle if
they are required to disclose sensitive client
information. Supporter Calegislation adds that victims
in protected address programs and battered women
shelters are already hesitant to seek services funded
by CalWorks because of the possibility that their
personally identifying information may be disclosed.
Supporter American Association of University Women also
notes that any potential for the disclosure of battered
women's personally identifying information "will only
enhance their fears and hesitation to seek assistance."
Supporter California Coalition Against Sexual Assault
states: "Passing this legislation will help to assure
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victims and survivors that they are safe entrusting us
with this type of information."
Supporters universally contend that victims' fears
about the possible disclosure of their personally
identifying information are well-founded. The author
notes that batterers, stalkers, and other assailants
"often engage in increasingly violent conduct when
their victims attempt to seek help," and "are often
relentless in their attempts to locate their victims."
The author also points out that a recent disclosure of
personally identifying information to a funding entity
in Los Angeles County - and the subsequent release of
that information by the entity - helped a batterer to
locate his victim while she was housed at a
confidential shelter location. Indeed, the author
states that studies show individuals can often be
located through "the release of limited information,
including gender and place and date of birth."
Supporter Calegislation adds that even including
victims' personal information in a database can place
victims at a heightened risk of re-victimization
because the database may be subject to computer hacking
or a record breach.
2. Reaching a proper balance between needs of funding
entities and victims
The bill would restrict the information that entities
may seek in deciding whether to award a grant or other
funding to a victim service provider. Although the
bill's supporters concede that it is important for
grant providers to take steps to ensure that funding is
used appropriately, supporters like Privacy Rights
Clearinghouse argue that the bill's restrictions are
appropriate because "special considerations need to be
acknowledged and accounted for when providing services
to domestic violence victims."
It must therefore be considered whether the bill
strikes an appropriate balance between a funding
entity's need to ensure proper use of its funding and a
domestic violence and sexual assault victim's need for
reassurance, security, and protection from potential
re-victimization. In considering this balance, it may
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be helpful in some areas to compare the bill's terms to
the terms of the balance struck in similar provisions
of federal law.
A. Whether personal information is needed to
properly vet applications
Since a number of entities have insisted on receiving
personal information as a condition of granting or
providing funding, the question arises: Is personal
information necessary to the vetting process that
funding agencies go through, in order to ensure that
funding goes to entities that are providing actual
services and that the services are provided to the
people that the funding is intended to assist?
The author states that personally identifying
information is not necessary to this vetting process,
since grant providers can look at other information
that includes: (1) aggregate data, excluding
information that would serve to identify a specific
individual; (2) the track record of the entity; (3)
other grants or state/federal funding awarded to the
entity; (4) the entity's membership in various state
coalitions; and (5) the tax-exempt status of the
entity. The author also notes that certain state
grant providers - as well as all federal grant
providers who are subject to new federal protections
- have been successful in vetting the programs of
service providers who seek funding without requiring
the disclosure of personally identifying information.
B. Specifications regarding restricted and
unrestricted information
Personally identifying information that would be
protected under this bill is largely identical to
information already protected from disclosure by
federally funded entities under federal law. Like
federal law, the bill would restrict the disclosure
of: (1) a first and last name; (2) a home or other
physical address; (3) contact information such as an
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email address, IP address, or telephone number; (4) a
social security number; or (5) other information,
such as racial or ethnic background or religious
affiliation, that "in combination with any other
nonpersonally identifying information, would serve to
identify any individual."
However, unlike federal law, this bill would restrict
the disclosure of information such as a last name or
a date of birth. This bill would also identify "the
first and last names of children and relatives" as
information that may be restricted when combined with
other nonpersonally identifying information that
would serve to identify any individual. The author
states that these expansions are appropriate in light
of studies showing that victims can be located by
information as limited as "gender and place and date
of birth." The author also recently amended the bill
to clarify that restrictions on the disclosure of a
date of birth do not extend to the disclosure of a
"year of birth." This amendment should allow a
funding entity to consider aggregate data that
includes the age of a person receiving services
without endangering the identity of the person
receiving the services by recording that person's
birthdate.
As a counterpoint to the types of information that
the bill explicitly protects as "personally
identifying information," the bill also provides that
it will not "prevent the collection of information
for statistical purposes that are necessary for the
proper administration of the grant, program, or
financial assistance, provided that collection does
not require the disclosure of information that would
serve to identify any specific individual."
C. Scope of funding actions restricted under the
bill
In the interest of ensuring that state and local
grant providers clearly understand which grant or
funding applications fall within the bill's
restrictions, the bill would only prohibit funding
entities from requesting clients' personally
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identifying information when entities are considering
funding requests from a victim support provider "for
the purpose of providing shelter, programs, or
services at low cost, no cost, or on a sliding scale
to victims of domestic violence, dating violence,
sexual assault, or stalking, or their children."
This limitation would restrict the scope of the
bill's restrictions to those funding applications
that clearly relate to services designed for victims
of domestic violence, dating violence, sexual
assault, or stalking, or their children. This could
help to eliminate some confusion for funding entities
that must also juggle large numbers of grant and
funding applications that would not fall under the
scope of this bill.
In addition to prohibiting a funding entity from
requesting or requiring the specified personal
information as part of a funding decision, the bill
would also prohibit (in the same limited scope as
above) a funding entity from requesting or requiring
a victim service provider to use computer software, a
computer program, a computer protocol, or another
computer system that requires the disclosure of
clients' personally identifying information.
D. Whether "victim service provider" definition is
narrowly tailored
In keeping with the narrowly defined violations
above, the bill would apply its prohibitions on
requests for personal information only to "victim
service providers," which are defined as
nongovernmental entities that provide shelter,
programs, or services at low cost, no cost, or on a
sliding scale to victims of domestic violence, dating
violence, sexual assault, or stalking, or their
children, and other programs with the primary mission
to provide services to victims of domestic violence,
dating violence, sexual assault, or stalking, or
their children.
While the bill uses terms similar to federal statutes
when defining the service providers to be protected
from required disclosure of clients' personally
identifying information, certain differences should
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be noted. First, the bill's definition would include
entities that are both for-profit and nonprofit,
while victim service providers under federal law are
exclusively defined as nonprofit entities. The
author explains that this expansion is to recognize
that some valuable victim services are offered
through hospitals or hosted by corporate
organizations. The author states that victims served
by those programs should be equally protected from
disclosure requests. The author also notes that any
expansion to for-profit entities is tempered by the
bill's additional requirement that a victim service
provider must be an entity that provides specified
services at low cost, no cost, or on a sliding scale.
The author also notes that a violation can only
established when the provider is applying for funding
to provide those specified services.
Another distinction from federal law is the bill's
specification that an entity may be defined as a
victim service provider when it provides specified
victim services "either directly or through
contractual arrangements." This language is intended
to address situations where a sub-contractor provides
a service to a victim and is reimbursed at full cost
by another entity, to ensure that the entity is not
prevented from seeking designation as a victim
service provider for that service, since its payment
of the sub-contractor's fee permitted the service to
be provided to victim at no cost.
Another distinction from the federal law is the
bill's statement that an entity may be a victim
service provider even if "the program exists in an
agency that provides additional services." This
language is intended to make it clear that an entity
seeking funding for, and providing, specified victim
support services is covered by the terms of this bill
even if it is part of a larger organization that is
not oriented specifically to victim services.
The final distinction from federal law is the fact
that an entity may be defined as a victim service
provider under this bill even if the services it
provides are for the children of a domestic violence,
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dating violence, sexual assault, or stalking victim.
The author states this expansion is appropriate
because the personal information collected through
such programs may cause equal damage in exposing the
identity or location of a victim. Likewise, victims
who fear the exposure of their own identities and
locations could have similar fears relating to the
exposure of their children's identities and
locations.
3. Attorney's fees provision
The bill would permit a victim service provider
aggrieved by a violation of this section to seek
injunctive relief. If the court awards relief, the
bill would also require the court to award costs and
reasonable attorney's fees when a "notice" requirement
is met. Specifically, the bill would entitle a
provider to fees and costs upon a showing that it
provided notice of this section and the asserted
violation of this section to the defendant, and the
defendant did not cease the violation within five
business days of receiving notice.
The general rule governing attorney's fees in the
United States is that each party must bear the cost of
his or her own attorney's fees, regardless of who
prevails in litigation. [See Trope v. Katz (1995) 11
Cal. 4th 274, 278.] Although the shifting of
attorney's fees can be specifically required by
statute, fee shifting statutes are enacted in cases
where society seeks to encourage vigorous, good faith
private enforcement of a statutory or constitutional
right. [See Choate v. County of Orange (2000) 86 Cal.
App. 4th 312, 322-23; Code Civ. Proc. 1021.]
In this case, the value of enforcing the protection of
victims' personally identifying information is clear.
However, it is generally an extreme measure to require
a court to award fees, rather than simply granting the
court discretion to award fees. The author states that
a requirement is appropriate here because of the value
of the information protected and because of the severe
impact that a funding entity's refusal or delay of
funding can have on the continued operation of a victim
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services program. In order to offset the extreme
nature of a mandatory award of fees, the author has
amended the bill to require notice to the defendant and
a five day opportunity to cease the violation before
attorney's fees may be awarded. This solution should
provide leeway for a funding entity to ensure that it
is not held liable for attorney's fees, while
continuing to emphasize the importance of an entity's
speedy reaction to a notice of violation.
4. Technical amendment
On page 3, lines 8-9, strike "shelter programs or
services, at low cost, no cost, or on a sliding scale,
to" and insert:
shelter, programs, or services at low cost, no cost, or
on a sliding scale to
Support: American Association of University Women,
California; Calegislation; California Coalition
Against Sexual Assault; California Partnership to
End Domestic Violence; Privacy Rights Clearinghouse
Opposition: None Known
HISTORY
Source: Los Angeles City Attorney's Office
Related Pending Legislation: None Known
Prior Legislation: None Known
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