BILL ANALYSIS �
AB 2221
Page 1
Date of Hearing: April 10, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2221 (Block) - As Amended: March 28, 2012
SUMMARY : Adds prosecutors and public defenders to the list of
professionals whose firearm licenses and license applications
are not fully required to be disclosed as public records under
the California Public Records Act (PRA). Specifically, this
bill :
1)Adds confidential information or records pertaining to crime
victims, as provided in the Victims' Bill of Rights Act of
2008: Marsy's Law, Section 28 of Article I of the California
Constitution, to the list of information not required to be
disclosed as public records under the PRA.
2)Makes other technical, non-substantive changes.
EXISTING LAW:
1)States 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 Section 6253(a).]
2)Declares legislative intent to assist members of the public
and state and local agencies in identifying exemptions to the
California PRA. It is the intent of the Legislature that,
after January 1, 1999, each addition or amendment to a statute
that exempts from disclosure any information contained in a
public record shall be listed and described in this article
pursuant to a bill authorized by a standing committee of the
Legislature to be introduced during the first year of each
session of the Legislature. The statutes listed in this
article may operate to exempt certain records, or portions
thereof, from disclosure. The statutes listed and described
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may not be inclusive of all exemptions. The listing of a
statute in this article does not itself create an exemption.
Requesters of public records and public agencies are cautioned
to review the applicable statute to determine the extent to
which the statute, in light of the circumstances surrounding
the request, exempts public records from disclosure.
(Government Code Section 6275.)
3)Exempts from the disclosure requirements under the PRA records
that are exempted or prohibited pursuant to federal or state
law, including, but not limited to, provisions of the Evidence
Code relating to privilege. �Government Code Section
6254(k).]
4)Exempts from the disclosure requirements under the PRA
information contained in applications for licenses to carry
firearms issued by the sheriff of a county or the chief or
other head of a municipal police department that indicates
when or where the applicant is vulnerable to attack or that
concerns the applicant's medical or psychological history or
that of members of his or her family. �Government Code
Section 6254(u)(1).]
5)Exempts from the disclosure requirements under the PRA the
home address and telephone number of peace officers, judges,
court commissioners, and magistrates that are set forth in
applications for licenses to carry firearms issued by the
sheriff of a county or the chief or other head of a municipal
police department. �Government Code Section 6254(u)(2).]
6)Exempts from the disclosure requirements under the PRA the
home address and telephone number of peace officers, judges,
court commissioners, and magistrates that are set forth in
licenses to carry firearms issued by the sheriff of a county
or the chief or other head of a municipal police department.
�Government Code Section 6254(u)(3).]
7)Forbids a state or local agency from posting the home address
or telephone number of any elected or appointed official, as
defined, on the Internet without first obtaining the written
permission of that individual. �Government Code Section
6254.21(a).]
8)Prohibits any person from knowingly posting the home address
or telephone number of any elected or appointed official, or
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of the official's residing spouse or child, on the Internet
knowing that person is an elected or appointed official and
intending to cause imminent great bodily harm that is likely
to occur or threatening to cause imminent great bodily harm to
that individual. A violation of this subdivision is a
misdemeanor. A violation of this subdivision that leads to
the bodily injury of the official, or his or her residing
spouse or child, is a misdemeanor or a felony. �Government
Code Section 6254.21(b).]
9)Defines "elected or appointed official" to include district
attorneys, city attorneys, public defenders, and other public
safety officials. �Government Code Section 6254.21(f).]
10)Requires in each county, the district attorney and the
courts, in consultation with any local law enforcement
agencies that may desire to provide information or other
assistance, to establish a mutually agreeable procedure to
protect confidential personal information regarding any
witness or victim contained in a police report, arrest report,
or investigative report if one of these reports is submitted
to a court by a prosecutor in support of a criminal complaint,
indictment, or information, or by a prosecutor or law
enforcement officer in support of a search warrant or an
arrest warrant. �Penal Code Section 964(a).]
11)Defines "confidential personal information" includes, but is
not limited to, an address, telephone number, driver's license
or California Identification Card number, Social Security
number, date of birth, place of employment, employee
identification number, mother's maiden name, demand deposit
account number, savings or checking account number, or credit
card number. �Penal Code Section 964(b).]
12)Prohibits law enforcement officers or employees of a law
enforcement agency from disclosing to any arrested person, or
to any person who may be a defendant in a criminal action, the
address or telephone number of any person who is a victim or
witness in the alleged offense. �Penal Code Section
841.5(a).]
13)Forbids an attorney from disclosing or permitting to be
disclosed to a defendant, members of the defendant's family,
or anyone else, the address or telephone number of a victim or
witness whose name is disclosed to the attorney as part of the
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discovery process, unless specifically permitted to do so by
the court after a hearing and a showing of good cause. �Penal
Code Section 1054.2(a)(1).]
14)Requires state and local law enforcement agencies, subject to
restrictions provided in other provisions of law, to make
public the current address of every individual arrested by the
agency and the current address of the victim of a crime, where
the requester declares under penalty of perjury that the
request is made for a scholarly, journalistic, political, or
governmental purpose, or that the request is made for
investigation purposes by a licensed private investigator.
However, the address of the victim of the following crimes
shall remain confidential: assault with the intent to commit
mayhem, rape, sodomy, or oral copulation, human trafficking,
rape, unlawful sexual intercourse with a person under 18 years
of age, rape of a spouse, penetration or rape by a foreign
object, abduction for marriage or defilement, inveiglement or
enticement of an unmarried minor female under 18 for
prostitution, abduction or procurement by fraudulent
inducement for prostitution, abduction to live in illicit
relation, unlawful sexual intercourse where consent is
procured by fear, sale of a person for immoral purpose,
procurement of child under age 16 for lewd or lascivious acts,
abduction of person under age 18 for prostitution, aggravated
sexual assault of a child, willful harm or injury to a child,
corporal punishment or injury of child, willful infliction of
corporal injury, incest, sodomy, lewd or lascivious acts, oral
copulation, harmful matter sent with intent to seduce minor,
contact of minor with intent to commit sexual offense,
continual sexual abuse of a child, sexual intercourse or
sodomy with a child 10 years of age or younger, forcible acts
of sexual penetration, interference with the exercise of civil
rights because of actual or perceived characteristics of the
victim, hate crime, stalking, or annoying or molesting a child
under 18. Address information obtained pursuant to this
paragraph may not be used directly or indirectly, or furnished
to another, to sell a product or service to any individual or
group of individuals, and the requester shall execute a
declaration to that effect under penalty of perjury. Nothing
in this paragraph shall be construed to prohibit or limit a
scholarly, journalistic, political, or government use of
address information obtained pursuant to this paragraph.
�Government Code Section 6254(f)(3).]
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15)States that a victim has the right to prevent the disclosure
of confidential information or records to the defendant, the
defendant's attorney, or any other person acting on behalf of
the defendant, which could be used to locate or harass the
victim or the victim's family or which disclose confidential
communications made in the course of medical or counseling
treatment, or which are otherwise privileged or confidential
by law. �Cal. Const. Art. I, Sec. 28(b)(4).]
16)Defines a "victim" as a person who suffers direct or
threatened physical, psychological, or financial harm as a
result of the commission or attempted commission of a crime or
delinquent act. The term "victim" also includes the person's
spouse, parents, children, siblings, or guardian, and includes
a lawful representative of a crime victim who is deceased, a
minor, or physically or psychologically incapacitated. The
term "victim" does not include a person in custody for an
offense, the accused, or a person whom the court finds would
not act in the best interests of a minor victim. �Cal. Const.
Art. I, Sec. 28(e).]
17)States that a statute, court rule, or other authority that
limits the right of access to information that concerns the
conduct of the people's business shall be narrowly construed
to demonstrate the interest protected by the limitation and
the need for protecting that interest. �Cal. Const. Art. I,
Sec. 3(b)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Victims of
crime deserve the utmost of protections from defendants or
their cohorts who want to annoy, harass, intimidate or
threaten victims. No one should be able to revictimize
someone because of confusion in the law. AB 2221 will conform
the PRA to our state constitutional protections that
recognizes the special protections afforded crime victims.
"Additionally, our prosecutors and public defenders, which are
in the trenches every day of our criminal justice system
deserve privacy protections as well when applying for a
firearm license. No person with nefarious intentions should
be able to obtain the identifying information, of prosecutors
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and public defenders, subjecting them and their families to
unnecessary potential harm, just because they filled out an
application for a firearm license. AB 2221 will extend the
same protections that judges and police officers enjoy now to
prosecutors and public defenders."
2)Background : According to the background information provided
by the author, "Currently, the California Public Records Act
(PRA) requires law enforcement agencies to disclose certain
information relating to investigative, arrest and incident
reports in response to requests for information. This
material may under certain circumstances include crime
victims' confidential information prohibited from being
disclosed to defendants, defendant's attorneys or anyone
working on behalf of defendants under the California
Constitution, Article I, Section 28(b)(4). However, it is
unclear whether the PRA recognizes the state constitutional
protections. As a result, uncertainty exists as to who may be
entitled to information relating to crime victims. AB 2221
incorporates the constitutional protections into the PRA to
bring clarity to questions of disclosure.
"This bill also protects prosecutors and public defenders from
disclosure of personal identifying information when they fill
out an application for a firearm license. This would provide
them with the same protections currently extended to judges
and law enforcement officers against disclosure of addresses
and phone numbers associated with firearm applications. The
release of personal identifying information of prosecutors and
public defenders, which may be used to locate them, creates an
unreasonable risk of harm for them and their families solely
because of their involvement in the criminal justice system."
3)Necessity of this Bill ? Current California law provides
protection of victims' personal information by prohibiting
attorneys from disclosing or permitting to be disclosed to a
defendant, members of the defendant's family, or any other
person the address or telephone number of a victim or witness
whose name is disclosed to the attorney as part of the
discovery process. If an attorney discloses this information,
he or she may be subject to criminal prosecution. The PRA
prevents the addresses of victims of specified crimes,
including rape, molestation, incest, assault, and abduction
from disclosure. The PRA also references the restrictions
placed on victim information disclosure found in Penal Code
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Section 841.5, which prohibits law enforcement officers or
employees from disclosing to any arrested person, or to any
person who may be a defendant in a criminal action, the
address or telephone number of any person who is a victim or
witness in the alleged offense. As a catch-all provision, the
PRA also notes that records exempt from disclosure under any
state or federal law are also exempt from disclosure under the
PRA.
This bill adds to the list of information not required to be
disclosed under the PRA victims' confidential information as
provided in the California Constitution, in Section 28 of
Article I. Specifically, this section provides that a victim
has the right to prevent the disclosure of confidential
information or records to the defendant, the defendant's
attorney, or any other person acting on behalf of the
defendant which could be used to locate or harass the victim
or the victim's family. The PRA already references existing
law that prevents law enforcement from disclosing a victim's
address and telephone information to any defendants, and
references more broadly any exemptions under state or federal
law. This bill will not afford any more protections to
victims than what is already provided in existing law, nor
will this bill provide more clarity to what may be disclosed
as a public record.
4)Argument in Support : According to the San Diego County
District Attorney's Office , "Under Government Code Section
6254 law enforcement agencies are required to release certain
information relating to criminal cases in response to requests
for information, which includes victim information. However,
under Marsy's Law, set forth in Article I, section 28,
subdivision (b) of the California Constitution, if a victim
requests confidentiality, disclosure of personal identifying
information to certain individuals is prohibited. AB 2221
adds a cross reference to Marsy's Law in the Public Records
Act where statutory cross references currently exist, so that
agencies responding to Public Records Acts are aware of the
relevant constitutional prohibitions.
"In a related issue, Government Code Section 6254 currently
prohibits the release of home addresses and telephone numbers
of peace officers, judges, court commissioners and magistrates
set forth in code sections governing the applications for
licenses to carry firearms and the actual licenses themselves.
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Conspicuously absent from the list of protected officials are
prosecutors and public defenders. . . In this instance, public
servants who deal with the same dangerous criminals are not
being given the same protection afforded their brethren."
5)Related Legislation :
a) AB 2251 (Feuer) authorizes prosecutors to send
victim-contact information to the California Department of
Corrections (CDCR) without the victim's consent for
purposes of recouping restitution. AB 2251 will be heard
by this Committee today.
b) AB 2299 (Feuer) authorizes a board of supervisors to
establish a program that requires the name of a public
safety official to be redacted from any property record
disclosed to the public. AB 2299 is currently pending
hearing by the Assembly Committee on Local Government.
6)Previous Legislation :
a) AB 1682 (Torres), of the 2009-10 Legislative Session,
would have allowed a board of supervisors or a city council
to authorize the sheriff or the chief of police to
establish a procedure to protect confidential personal
information contained in police report arrest report, or
investigative report regarding a victim or alleged victim,
and said victim or alleged victim has requested the
information to be kept confidential. AB 1682 failed
passage in this Committee.
b) SB 1239 (Hollingsworth), Chapter 52, Statutes of 2006,
requires a dealer, in a private-party firearms transaction,
to provide copies of paperwork completed in connection with
said transaction to both the buyer and the seller and to
redact from those documents the purchaser's personal
information from the seller's copy and the seller's
personal information from the purchaser's copy.
c) SB 58 (Johnson), Chapter 507, Statutes of 2004, requires
county district attorneys, the courts, and law enforcement
to establish a mutually agreeable procedure to protect
personal confidential information regarding a victim or
witness contained in a police report submitted to a court.
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REGISTERED SUPPORT / OPPOSITION :
Support
San Diego County District Attorney's Office (Sponsor)
California District Attorneys Association
Crime Victims Action Alliance
Crime Victims United of California
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744