BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1275 (Torres) 5
As Amended June 11, 2012
Hearing date: June 19, 2012
Government Code
MK:mc
CALIFORNIA PUBLIC RECORDS ACT: EXEMPTION:
EMERGENCY 911 TELEPHONE CALLS
HISTORY
Source: American Federation of State, County and Municipal
Employees Association (AFSCME), Local 3090
Prior Legislation: None
Support: California Statewide Law Enforcement Association;
Association for Los Angeles Deputy Sheriffs; Riverside
Sheriffs' Association; LA County Probation Officers
Union, AFSCME, Local 685; California Chapter of the
National Emergency Number Association
Opposition:California Newspaper Publishers Association;
California Broadcasters Association; Radio Television
Digital News Association; Los Angeles District
Attorney's Office
Assembly Floor Vote: Not applicable
KEY ISSUE
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SHOULD THE LAW PROHIBIT THE RELEASE OF ANY PORTION OF 911
EMERGENCY TELEPHONE CALLS PROVIDING MEDICAL OR PERSONAL
IDENTIFYING INFORMATION EXCEPT TO SPECIFIED PEOPLE?
PURPOSE
The purpose of this bill is to prohibit the release of any
portion of a 911 emergency telephone call providing medical or
personal identifying information except to specified people.
The California Constitution declares 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. (Article I Section 3(b)(1) of the California
Constitution.)
The California Constitution further provides that a statute,
court rule, or other authority, including those in effect on the
effective date of this subdivision, shall be broadly construed
if it furthers the people's right of access, and narrowly
construed if it limits the right of access. A statute, court
rule, or other authority adopted after the effective date of
this subdivision that limits the right of access shall be
adopted with findings demonstrating the interest protected by
the limitation and the need for protecting that interest.
(Article I Section 3(b)(2) of the California Constitution.)
Existing law provides that the Legislature, mindful of the right
of individuals to privacy, finds and declares 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.)
Existing law provides that public records are open to inspection
at all times during the office hours of the state or local
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agency and every person has a right to inspect any public
record, except hereafter provides. Any reasonably segregable
portion of a record shall be available for inspection by any
person requesting the record after deletion of portions that are
exempted by law. (Government Code � 6253.)
Existing law provides that nothing shall be construed to require
disclosure of records that are any of the following: personnel,
medical or similar files, the disclosure of which would
constitute an unwarranted invasion of personal privacy.
(Government Code � 6254(c).)
Existing law provides that it is the intent of the Legislature
that, in order to protect against the risk of identity theft,
local agencies shall redact social security numbers from record
before disclosing them to the public. (Government Code �
6254.29.)
Existing law provides that the agency shall justify withholding
any record by demonstrating that the record in question is
exempt under express provisions of this chapter or that on the
facts of the particular case the public interest is served by
not disclosing the record clearly outweighs the public interest
served by disclosure of the record. (Government Code � 6255.)
Existing law does not allow limitations on access to a public
record based upon the purpose for which the record is being
requested if the record is otherwise subject to disclosure.
(Government Code � 6257.5.)
This bill provides that notwithstanding any other law, a public
agency shall not disclose any portion of a recording of a 911
emergency telephone call providing medical or personal
identifying information.
This bill provides that a public agency shall disclose a 911
emergency telephone call to any of the following:
A court.
A law enforcement agency.
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A district attorney, public defender or appointed or
private counsel representing a defendant in a criminal
action.
An attorney in a civil action that demonstrates to a
court the need for the recording of a 911 emergency
telephone call, if the disclosure is made pursuant to a
subpoena.
An attorney investigating facts related to a potential
civil action that demonstrates to the court the need for
the 911 emergency telephone call, if the disclosure is made
pursuant to a subpoena.
The caller whose voice was recorded on the 911 emergency
call.
This bill defines "personal information" as any information that
is maintained by an agency that identifies or describes and
individual including, but not limited to, his or her name,
social security number, physical description, home address, home
telephone number, education, financial matters and medical or
employment history. It includes statements made by, or
attributed to, the individual.
This bill defines "medical information" as any health
information that is protected from disclosure by the federal
Health Insurance Portability and Accountability Act of 1996
(Public Law 104-191), and any regulations adopted pursuant to
that act.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
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has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
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prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to the author:
Assembly Bill 1275 protects an individual's right to
privacy when calling 911 for emergency assistance. The
bill requires the removal of sensitive medical and
personal information from 911 taped calls before being
released to the media or the public.
2. Open Records
The right of access to public records in California is not only
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codified in the Government Code but also in Article I Section
3(b)(1) of the California Constitution, which was adopted in
November of 2004.
Cal. Const., Art. I, �3(b), adopted by the voters at
the November 2004 general election, guarantees the
public's right of access to public records and
governmental meetings. (See infra, �6.) The
California Public Records Act (Govt.C. 6250 et seq.),
permitting inspection and copying of public records,
governs most local and state agencies. (Govt.C.
6252(a) and (f); see Cook v. Craig (1976) 55 C.A.3d
773, 781, 127 C.R. 712 �general policy of Act favors
disclosure]; 1 Pierce, Admin. Law 4th, Chap. 5; on
Public Records Act generally, see 2 Cal. Evidence
(4th), Witnesses, �278 et seq.; on public access to
electronic trial court records, see 2 Cal. Proc. (5th),
Courts, �40.) "Public records" include "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." (Govt.C. 6252(e); see Govt.C.
11124.1(b), infra, �13 �tape or film record of open
meeting made at state body's direction is subject to
inspection under Public Records Act].) "Writing" is
defined as including every "means of recording upon any
tangible thing any form of communication or
representation, ... and any record thereby created,
regardless of the manner in which the record has been
stored." (Govt.C. 6252(g).) Certain exemptions from
disclosure are provided by the Act (see Govt.C. 6254)
and other statutes (see, e.g., Welf.C. 10850 �welfare
records]). (9 Witkin Cal. Proc. Admin Proc � 5)
However, the access to public records dates before its
codification:
There is a common law right to inspect and copy public
records, including judicial records. It is not
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dependent on a proprietary interest in the document or
on a need for it as evidence; the interest may be a
citizen's desire to observe the workings of public
agencies or a newspaper's intention to publish
information concerning the operation of government.
(Nixon v. Warner Communications (1975) 98 S.Ct. 1311,
55 L.Ed.2d 579.) (2 Witkin Cal. Proc. Courts � 39.)
There are specific exemptions to the Act which allow the
withholding of records or the redacting of records. Most of the
exemptions were enacted prior to the Constitutional Amendment
and thus must be narrowly construed if they limit access. There
is also a "catch all" exemption:
An agency unable to establish a specific exemption
under Govt.C. 6254 et seq. (see supra, � 288 et seq.
and infra, � 297) may nevertheless justify its
withholding of the record by demonstrating that "on
the facts of the particular case the public interest
served by not making the record public clearly
outweighs the public interest served by disclosure of
the record." (Govt.C. 6255; see Govt.C. 6254.8,
supra, �283 �public interest exemption does not apply
to public employment contracts].) (2 Witkin Cal.
Evid. Witnesses � 295.)
This bill creates a new exemption providing that notwithstanding
any other law, a public agency shall not disclose any portion of
a 911 emergency telephone call providing medical or personal
identifying information.
3. Constitutionality
In November of 2004, the voters put into the California
Constitution protections for access to public records that had
been codified in the Government Code. Specifically, the Article
I Section 3(b)(1) of the California Constitution declares "the
people have the right of access to information concerning the
conduct of the people's business, and, therefore, the meetings
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of public bodies and the writings of public officials and
agencies shall be open to public scrutiny." Because exemptions
to the rule that government records are to be public already
existed, the Constitution specifically addressed that providing:
"a statute, court rule, or other authority, including those in
effect on the effective date of this subdivision, shall be
broadly construed if it furthers the people's right of access,
and narrowly construed if it limits the right of access. A
statute, court rule, or other authority adopted after the
effective date of this subdivision that limits the right of
access shall be adopted with findings demonstrating the interest
protected by the limitation and the need for protecting that
interest. "(Article I Section 3(b) (2) of the California
Constitution.)
This bill does not contain any findings "demonstrating the
interest protected by the limitation and the need for protecting
that interest" as required by the Constitution.
The language in this bill is unclear in whether any call which
has medical or personal information may not be disclosed at all
or whether the personal or medical sections could be redacted
and the rest disclosed. Because the Constitution would require
a narrow reading of the provision, it is likely that it would be
interpreted to require the release of some of the information
with the person and medical sections redacted.
SHOULD THIS BILL INCLUDE FINDINGS AS REQUIRED BY THE
CONSTITUTION?
SHOULD THE BILL BE CLARIFIED TO SAY WHETHER NONE OF THE TAPE CAN
BE RELEASED OR JUST THE PORTION DISCLOSING PERSONAL OR MEDICAL
INFORMATION?
4. Expectation of Privacy
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It is unclear that a person would have an expectation of privacy
in calling a government phone line that they know is recorded.
Because of the frequency that 911 tapes show up in the news or
in the paper, it is unlikely anyone expects that the information
they relay is private.
In opposition, the California Broadcasters Association believes
there is no expectation of privacy stating:
There is no expectation of privacy when a person
makes a 911 call. There is an expectation that the
information provided will be recorded and possibly
disclosed to the public. Despite this presumption,
new organizations only make the decision to use these
tapes after carefully considering questions of taste,
privacy, sensitivity and newsworthiness.
Furthermore, at the time the Constitutional Amendment was passed
911 calls were released, and no exemption was made for them at
that time. It is possible because 911 tapes were commonly
released and appeared in the media or on line at that time, a
court would find that if there was an interest in protecting the
privacy of 911 callers, something would have been done at the
time of the Constitutional Amendment.
There have been bills in recent years premised on the fact that
there is no expectation of privacy when calling 911. AB 472
(Ammiano) (2011); AB 2460 (Ammiano) (vetoed, 2010) and AB 1999
(Portantino) (Chapter 245, Statutes of 2010) all addressed the
issue that people might be concerned about calling 911 in a drug
or alcohol overdose situation because of potential police
involvement when they are seeking medical help. The premise is
that a person has no expectation that their medical or personal
information will be kept private from the police and therefore
may not call when they or a friend is in trouble.
IS THERE AN EXPECTATION OF PRIVACY IN A 911 CALL?
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5. Existing Law Provides for Redacting
Under existing law there is an exception to the rule that 911
information can be released. Any agency can withhold or redact
the information providing that the public interest in
withholding or redacting is not outweighed by the public
interest in releasing the information. According to the
California Newspaper Association this is exactly what happened
in the Demi Moore situation referred to by some of the
supporters of this bill: Significant portions of the tape were
redacted before it was released. Is there justification in
having a broad ban contrary to the Constitution when a case by
case judgment can be made when appropriate?
DO THE EXISTING PROVISIONS ALLOWING FOR REDACTING PROVIDE ENOUGH
PROTECTIONS AGAINST MISUSE OF 911 RECORDINGS?
6. Personal Information
This bill defines "personal information" as "any information
that is maintained by an agency that identifies or describes an
individual including, but not limited to, his or her name,
social security number, physical description, home address, home
telephone number, education, financial matters and medical or
employment history. It includes statements made by, or
attributed to, the individual."
It is unclear what "it includes statements made by or attributed
to, the individual" means. Does this mean any statement on the
911 call? Who is "the individual"? Who is the "caller"? What
is the subject of the call, if the caller is not the party in
need of emergency services? Who is the person in the background
of the call?
Are there times where the address may be relevant such as
determining response times? Are there times where the name or
phone number might be relevant, such as interviewing witnesses
to a crime or accident?
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7. Medical Information
This bill defines "medical information" as any health
information that is protected from disclosure by the federal
Health Insurance Portability and Accountability Act of 1996
(Public Law 104-191), and any regulations adopted pursuant to
that act. Is this an appropriate definition of medical
information?
8. Exceptions to the Ban
a. "Shall disclose"
This bill provides that despite the ban on releasing a 911
tape that contains any personal identifying or medical
information, a public agency "shall disclose" a 911 emergency
telephone call to specified entities and persons.
Technically, this language reads as if a public agency is
required to disclose every call to one of the listed entities.
It appears as if the intent is that the calls shall be
disclosed at the request of any of the listed individuals or
entities. The drafting should be clarified.
SHOULD THE LANGUAGE BE CLARIFIED SO THAT THE PUBLIC AGENCY
SHALL DISCLOSE UPON REQUEST OF THE EXEMPTED PARTY?
b. Exempted from ban
The following are those who may receive 911 information under
this bill:
i. A court.
ii. A law enforcement agency. This would not
include a peace officer who works for an agency that
is not a law enforcement agency, such as the
Franchise Tax Board or Department of Insurance.
iii. A district attorney. This does not include
the Attorney General or a city attorney who
prosecutes criminal cases. It should say "a
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prosecutor," not a "district attorney."
iv. A public defender or appointed or private
counsel representing a defendant in a criminal
action. This would not include an investigator who
works for the public defender or a private counsel
and who often would do the initial investigation.
It also is not clear if it would include an attorney
representing a person in a habeas action.
v. An attorney in a civil action that demonstrates
to a court the need for the recording of the 911
emergency telephone call, if the disclosure is made
pursuant to a subpoena. It is not clear why an
attorney should have to demonstrate the need to a
court or to get a subpoena. What motion would bring
the attorney before a judge? Is this a necessary
use of court resources? Usually an affidavit by an
attorney would suffice.
vi. An attorney investigating facts related to a
potential civil action that demonstrates to a court
the need for a 911 emergency telephone call, if the
disclosure is made pursuant to a subpoena. It is
unclear how an attorney would get into court to
demonstrate their need, if an action has not yet
been filed. An affidavit should be sufficient for a
licensed attorney to get information for an
investigation.
vii. The caller whose voice was recorded on the
911 emergency telephone call.
SHOULD THESE EXEMPTIONS TO THE BAN BE AMENDED SO THEY ADEQUATELY
DEFINE THE EXEMPTED PEOPLE OR ENTITIES?
a. Who is not exempted from the ban?
There are a number of individuals or entities who are not
exempted from the ban that may have a legitimate reason to
access 911 information including:
i. The person about whom the call was made. This
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bill allows the person who made the call to get the
tape, but not the person about whom the call was
made if they are on the same person.
ii. The doctor or hospital treating the person
about whom the call was made. There could be a
medical reason that a hospital or doctor may want to
listen to what was said on the call. Arguably, as
drafted, even the paramedics could not be given
relevant information by the 911 operator.
iii. A Grand Jury. While often a prosecutor will
present evidence to a grand jury, the grand jury
itself can also subpoena and request evidence. This
would not be allowed under this bill.
iv. Local governments may want to access 911
information to determine if funds are being spent
appropriately, or to argue for the need for more
funding to support vital services if they find that
certain areas are underserved, or that the response
to calls is not appropriate. Location information
could be key in determining how limited resources
should be spent.
v. The media or other government "watchdog"
organizations. The media have acted as a watchdog
on emergency services responses to 911 tapes. They
can be a check on whether response times vary by
neighborhood; whether government funds are being
spent appropriately; and son whether law enforcement
has acted inappropriately in a given situation. The
media also informs people of crimes that are
occurring within their neighborhood. Locations and
the types of calls are necessary for the media to
play this crucial role in our society. Response
times can only be compared if they can compare the
same type of medical emergency to a similar type of
medical emergency.
ARE THERE OTHER LEGITIMATE REASONS TO ACCESS 911 RECORDINGS?
9. Public Uses for 911 Recordings
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There have been recent examples of where the release of complete
911 tapes have served the public interest. The most recent
example is in the Trayvon Martin tape that was released and
seemed to influence the Attorney General relooking at the case.
In the Trayvon Martin case, the release of the whole tape also
seemed to give a bigger picture as to what occurred in a way
that an initial partial release by the media did not. The 911
tapes from Columbine were released and reviewed to determine if
any changes were necessary to the way law enforcement handled
the situation. (Columbine 911 tapes
http://acolumbinesite.com/911/index.html). The 911 tapes were
used by the 9/11 Commission to evaluate how the 911 operators
responded and what, if anything, could be changed. Families for
the victims sought to have the tapes released, and they were
eventually released with names of the callers audible.
Appearing on NY1's "The Call" Thursday night, attorney
for the families, Norman Siegel, said the release of
the unedited audio recordings could accomplish two
things:
"The tapes will reveal how the 911 system worked, or
did not work. That's very important: our training, how
can we improve that," said Siegel. "Second, the tapes,
if they are not edited, would let family know the last
moments of their loved one's life."
(http://www.ny1.com/content/top_stories/58244/chilling-r
ecordings-of-911-calls-are-made-public)
Another use of 911 tapes may be a historical look at an
emergency. The Virtual Museum of the City of San Francisco has
on its website transcripts of 911 calls from the October 17,
1989, earthquake. Many addresses are included.
(http://www.sfmuseum.net/1989/sf911.html.)
IS THERE VALID PUBLIC INTEREST IN THE BROAD RELEASE OF 911 TAPES
IN SOME CIRCUMSTANCES?
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10. Support
In support, the California Statewide Law Enforcement Association
states:
AB 1275 will facilitate the free flow of information
between a person making an emergency 911 call and the
911 operator. Callers should not be put in the
unfortunate spot of choosing between providing the
operator with complete, accurate information and the
possibility that the information could be made public
under the Public Records Act.
11. Opposition
In opposition, the California Newspaper Publishers Association
state:
Information about crime that precisely identifies the
people involved -- both victims and those accused of
crime -- is accessed from law enforcement agencies
every day by hundreds of newspapers and others to
inform the public of the basic facts associated with
crime. There is no way anyone can safeguard their
person or property if they cannot determine with
certainty the identity of persons arrested or
victimized by crime. Recordings of 911 calls are one
of the best sources for this information.
AB 1275 would create further bad outcomes. By
prohibiting the disclosure of 911 tapes, the bill would
seriously harm the ability of the public to assist law
enforcement agencies to solve crimes and prevent their
future occurrence. Accurate and complete reporting
about crime deputizes the public to assist law
enforcement in solving and preventing crime. When the
public is made aware that an identified individual is
victimized, it creates increased vigilance in the
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community, in the workplace, and the neighborhood, and
gives rise to all kinds of beneficial behavior,
including increased tips and other communications to
law enforcement agencies and the creation of
Neighborhood Watch groups and other collective
programs.
Records associated with crime are gathered at
tremendous taxpayer expense and are the property of the
public. Law enforcement agencies are mere custodians
of the public's records, not paternalistic protectors
that get to decide for their subjects just what
information they think the public needs and what
information it doesn't need, as this bill suggests.
Access to public records is a fundamental right of
every Californian.
In the recent tragedy involving Trayvon Martin, it was
the public disclosure of the 911 tape that shed light
on his death. The disclosure of the tape led several
people to come forward with information which aided the
prosecutor in her decision about whether to file
charges in the case.
The disclosure of these tapes can also provide the
public with a better understanding of emergency
response times. Are responders slower today than they
were a year ago? Are limited resources being used
effectively? Are calls for help being routed from one
agency to another causing unnecessary delay similar to
what occurred in Demi Moore's case? The best source of
information to answer these questions is the 911
recording.
There is no need for the legislature to take action
based on the release of the 911 tape involving Demi
Moore. Current law allows an agency to redact exempt
material like medical information from the tape prior
to disclosure and the 911 tape in the Demi Moore case
was heavily redacted before it was released.
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