BILL ANALYSIS �
AB 2222
Page 1
Date of Hearing: April 10, 2012
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2222 (Block) - As Amended: March 27, 2012
SUMMARY : Provides that a public prosecutor is not prohibited
from accessing and obtaining information from the public
prosecutor's case management database to respond to a request
for publicly disclosable information pursuant to the California
Public Records Act (PRA).
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)Exempts from the disclosure requirements under the PRA any
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 California Emergency Management Agency, and any
state or local police agency, or any investigatory or security
files compiled by any other state or local police agency, or
any investigatory or security files compiled by any other
state or local agency for correctional, law enforcement, or
licensing purposes. However, state and local law enforcement
agencies shall disclose the names and addresses of persons
involved in, or witnesses other than confidential informants
to, the incident, the description of any property involved,
the date, time, and location of the incident, all diagrams,
statements of the parties involved in the incident, the
statements of all witnesses, other than confidential
informants, to the victims of an incident, or an authorized
representative thereof, an insurance carrier against which a
claim has been or might be made, and any person suffering
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bodily injury or property damage or loss, as the result of the
incident caused by arson, burglary, fire, explosion, larceny,
robbery, carjacking, vandalism, vehicle theft, or a crime as
defined, unless the disclosure would endanger the safety of a
witness or other person involved in the investigation, or
unless disclosure would endanger the successful completion of
the investigation or a related investigation. However, nothing
in this division shall require the disclosure of that portion
of those investigative files that reflects the analysis or
conclusions of the investigating officer. �Government Code
Section 6254(f).]
3)Exempts from disclosure the 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)Defines "local summary criminal history information" as the
master record of information compiled by any local criminal
justice agency pertaining to the identification and criminal
history of any person, including name, date of birth, physical
description, dates of arrests, arresting agencies and booking
numbers, charges, dispositions and similar data about the
person. �Penal Code Section 13300(a)(1).]
5)Requires a local agency to furnish local summary criminal
history information to any of the following, when needed in
the course of their duties, provided that when information is
furnished to assist an agency, officer, or official of state
or local government, a public utility, or any entity, in
fulfilling employment, certification, or licensing duties,
Chapter 1321, Statutes of 1974, and Labor Code Section 432.7
shall apply �Penal Code Section 13300(b)]:
a) The courts of California.
b) Peace officers of California, as defined
c) District attorneys of California.
d) Prosecuting city attorneys of any city within
California.
e) City attorneys pursuing civil gang injunctions.
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f) Probation officers of California.
g) Parole officers of California.
h) A public defender or attorney of record when
representing a person in proceedings upon a petition for a
certificate of rehabilitation and pardon.
i) A public defender or attorney of record when
representing a person in a criminal case if authorized
access by statutory or decisional law.
j) Any agency, officer, or official of California if the
criminal history information is required to implement a
statute or regulation that expressly refers to specific
criminal conduct applicable to the subject person of the
local summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon
that specified criminal conduct.
aa) Any city or county, city and county, district, or any
officer or official thereof when access is needed in order
to assist that agency, officer, or official in fulfilling
employment, certification, or licensing duties, and if the
access is specifically authorized by the city council,
board of supervisors, or governing board of the city,
county, or district if the local criminal history
information is required to implement a statute, ordinance,
or regulation that expressly refers to specific criminal
conduct applicable to the subject person of the local
summary criminal history information, and contains
requirements or exclusions, or both, expressly based upon
that specified criminal conduct.
bb) The subject of the local summary criminal history
information.
cc) Any person or entity when access is expressly authorized
by statute if the local criminal history information is
required to implement a statute or regulation that
expressly refers to specific criminal conduct applicable to
the subject person of the local summary criminal history
information, and contains requirements or exclusions, or
both, expressly based upon that specified criminal conduct.
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dd) Any managing or supervising correctional officer of a
county jail or other county correctional facility.
ee) Local child support agencies when a local child support
agency closes a support enforcement case containing summary
criminal history information, the agency shall delete or
purge from the file and destroy any documents or
information concerning or arising from offenses for or of
which the parent has been arrested, charged, or convicted,
other than for offenses related to the parent's having
failed to provide support for minor children.
ff) County child welfare agency personnel who have been
delegated the authority of county probation officers to
access state summary criminal history information pursuant
to the Welfare and Institutions Code (WIC) for the purposes
of investigating child abuse, locating a parent, or
assessing the appropriateness and safety of a child's
placement.
gg) A humane officer for the purposes of performing his or
her duties. A local agency may charge a reasonable fee
sufficient to cover the costs of providing information
under this paragraph.
6)States that a local agency may furnish local summary criminal
history information upon a showing of a compelling need to
specified individuals and organizations, provided that when
information is furnished to assist an agency, officer, or
official of state or local government, a public utility, or
any entity, in fulfilling employment, certification, or
licensing duties, Chapter 1321, Statutes of 1974, and Labor
Code Section 432.7 shall apply. �Penal Code Section
13300(c).]
7)Provides that a prosecutor may, in response to a written
request made pursuant to the PRA, provide information form a
local summary criminal history, if release of the information
would enhance public safety, the interest of justice, or the
public's understanding of the justice system and the person
making the request declares that the request is made for a
scholarly or journalistic purpose. �Penal Code Section
13300(j).]
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8)States that a local criminal justice agency shall not release
information under the following circumstances �Penal Code
Section 13300(n)]:
a) Information concerning an arrest for which diversion or
deferred entry of judgment program has been ordered without
attempting to determine whether diversion or a deferred
entry of judgment program has been successfully completed;
b) Information concerning an arrest or detention followed
by a dismissal or release without attempting to determine
whether the individual was exonerated; and
c) Information concerning an arrest without a disposition
without attempting to determine whether diversion has been
successfully completed or the individual has been
exonerated.
9)Provides that any employee of the local criminal justice
agency who knowingly furnishes a record or information
obtained from a record to a person who is not authorized by
law to receive the record or information is guilty of a
misdemeanor. (Penal Code Section 13302.)
10)States that no employer, whether a public agency or private
individual or corporation, shall ask an applicant for
employment to disclose, through any written form or verbally,
information concerning an arrest or detention that did not
result in conviction, or information concerning a referral to,
and participation in, any pretrial or post-trial diversion
program, nor shall any employer seek from any source
whatsoever, or utilize, as a factor in determining any
condition of employment including hiring, promotion,
termination, or any apprenticeship training program or any
other training program leading to employment, any record of
arrest or detention that did not result in conviction, or any
record regarding a referral to, and participation in, any
pretrial or post-trial diversion program. As used in this
section, a conviction shall include a plea, verdict, or
finding of guilt regardless of whether sentence is imposed by
the court. Nothing in this section shall prevent an employer
from asking an employee or applicant for employment about an
arrest for which the employee or applicant is out on bail or
on his or her own recognizance pending trial. �Labor Code
Section 432.7(a).]
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11)States that no person authorized by law to receive criminal
offender record information maintained by a local law
enforcement criminal justice agency shall knowingly disclose
any information received therefrom pertaining to an arrest or
detention or proceeding that did not result in a conviction,
including information pertaining to a referral to, and
participation in, any pretrial or post-trial diversion
program, to any person not authorized by law to receive that
information. �Labor Code Section 432.7(g)(2).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2222
reinforces the legislature's commitment to transparency by
allowing prosecutors to effectively use electronic data to
respond to the public's request for information. The bill
updates the law to reflect the rapid changes in technology
while continuing to provide transparency to government
information more efficiently and effectively."
2)Background : According to the background provided by the
author, "The San Diego District Attorney and other district
attorney offices are converting to paperless case files and
paperless record keeping. The repository for these records is
the district attorney's internal case management system.
Although the California Public Records Act (PRA) requires
disclosure of records held in electronic format, it is unclear
whether the district attorney can utilize information that is
contained in its case management data base without being
criminally liable under Penal Code Section 13302. This bill
clarifies that a public prosecutor can comply with its duties
under the PRA without the threat of misdemeanor liability."
3)Attorney General's Opinion : This bill does not expand a local
criminal agency's authority to disclose information not
otherwise authorized by existing law. Due to the contrasting
statutory schemes of the PRA, which makes most records of
state and local public agencies subject to public disclosure
with specified exemptions, and Penal Code Sections 13300 to
13305, which prohibits the disclosure of "local summary
criminal history information" except to certain specified
persons and entities, the Los Angeles County District Attorney
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requested an opinion to resolve when a prosecutor may produce
records from a computerized database in response to a public
records request. In response, the Attorney General Bill
Lockyer issued an opinion providing the following as a guide:
a) "Whether a recently charged or soon-to-be charged
defendant is on probation or parole, and details of his or
her prior offenses. The details of a person's prior
offenses are part of that person's local summary criminal
history information; hence, that information may not be
disclosed by a local criminal justice agency except to
authorized recipients. (Citation.) If the person has been
arrested by the district attorney's office, however, and if
the request is for current information (citation), the
office must 'make public,' among other information, any
'parole or probation holds' upon which 'the individual is
being held.' (Citation.) If these conditions are not met,
the district attorney's office may not disclose the
requested information. In any event, an arresting agency
may disclose only those probation or parole cases in which
a hold has been issued; the arrest reports themselves are
exempt from disclosure. (Citation.)
b) "An individual's criminal history in the county,
including all arrests and case dispositions. This is
protected rap sheet information. Neither these historical
records nor any information derived from them may be
disclosed by a local criminal justice agency except to
authorized recipients. (Citation.) Further, the agency is
also prohibited from facilitating any circumvention of
these protections by providing the same information, or
information leading to it, derived from other sources.
(Citation.)
c) "The disposition of matters referred to the district
attorney for filing of criminal charges. With respect to
current matters, a local law enforcement agency is required
to 'make public,' under section 6254, subdivision (f)(2),
certain limited information derived from its investigatory
files, including 'the time, substance, and location of all
complaints or requests for assistance received by the
agency and the time and nature of the response thereto,'
but the records themselves are exempt from disclosure.
This provision does not require the agency to make public
any information concerning previous complaints or requests
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for assistance. (Citation.) We believe that, for a
district attorney, such 'requests for assistance' would
include matters referred to him or her for the filing of
criminal charges, and the phrase 'nature of the response
thereto' would include the disposition of such referrals,
except that disclosures need not include any information
reflecting the analyses or conclusions of investigating
officers. (Citation.)
d) "Criminal histories associated with a requested list of
cases in which a specified witness has testified. This
type of request is similar to the discovery request made in
Craig v. Municipal Court �1979] 100 Cal.App.3d 69, where a
defendant sought "production of the names and addresses of
all persons arrested by the officers for similar charges
during the preceding two years." (Citation.) As in Craig,
the request posited here would compromise the privacy
interests of the persons who are the subject of such
records. (Citation.) For rap sheets as well as for the
arrest records discussed in Craig, the Legislature has
'developed a detailed statutory scheme for limiting access
to and disclosure of such records, and that scheme serves
as a safeguard against improper dissemination and use of
the records.' (Citation.) Thus, the production of the
requested records or disclosure of their contents would be
prohibited by the terms of Penal Code sections 13300-13305.
e) "Numerous criminal histories associated with a request
for the names and identities of defendants charged with
particular specified criminal conduct over a period of
years. Such a request, though its purpose may be to survey
an agency's administrative practices over time, seeks
historical information of the kind contained in local
summary criminal history information, including identifying
details about persons charged with particular crimes in the
past. Hence, that information may not be produced or
disclosed by a local criminal justice agency except to
authorized recipients. (Citation.) The request also seeks
a large body of data covering a substantial period of time,
and is thus similar to the request for court records made
in Westbrook v. County of Los Angeles �1994] 27 Cal.App.4th
157. We note, however, that where requests are limited to
supporting statistical analyses and do not seek identifying
information about the persons involved, Penal Code section
13300, subdivision (h), states: 'It is not a violation of
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this article to disseminate statistical or research
information obtained from a record, provided that the
identity of the subject of the record is not disclosed.' "
�89 Ops.Cal.Atty.Gen. 204, 214-216 (2006).]
4)Argument in Support : According to the American Federation of
State, County and Municipal Employees (AFSCME) , "The San Diego
District Attorney and other district attorney offices are
converting to paperless case files and paperless record
keeping. The repository for these records is the district
attorney's internal case management system. Although the PRA
requires disclosure of records held in electronic format, it
is unclear whether the district attorney can utilize
information that is contained in its case management data base
without being criminally liable under Penal Code Section
13302.
"AB 2222 clarifies this issue by stating that a public
prosecutor can comply with its duties under the PRA without
the threat of misdemeanor liability. This bill reinforces the
legislature's commitment to transparency by allowing
prosecutors to effectively use electronic data to respond to
the public's request for information under the PRA. In
addition, this bill updates the law to reflect the rapid
changes in technology while continuing to provide transparency
in regards to government information."
5)Related Legislation : AB 2221 (Block) 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. AB 2221 will be heard by this
Committee today.
6)Previous Legislation :
a) AB 104 (Solorio), Chapter 104, Statutes of 2007,
requires local criminal justice agencies to provide local
criminal history information to city attorneys pursuing
civil gang injunctions, or drug abatement actions, as
specified.
b) SB 2161 (Schiff), Chapter 421, Statutes of 2000,
requires the department and local criminal justice agencies
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to furnish the state summary criminal history information
to county child welfare agency personnel who have been
delegated the authority of county probation officers
pursuant to these provisions.
REGISTERED SUPPORT / OPPOSITION :
Support
San Diego District Attorney's Office (Sponsor)
American Federation of State, County and Municipal Employees
California District Attorneys Association
Opposition
None
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744