BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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2
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AB 2222 (Block) 2
As Amended March 27, 2012
Hearing date: June 19, 2012
Penal Code
MK:mc
CRIMINAL HISTORY RECORDS
HISTORY
Source: San Diego District Attorney
Prior Legislation: AB 104 (Solorio) - Chapter 104, Statutes of
2007
SB 2161 (Schiff) - Chapter 421, Statutes of 2000
Support: California District Attorneys Association; AFSCME,
AFL-CIO
Opposition:None known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
SHOULD THE LAW PROVIDE 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?
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PURPOSE
The purpose of this bill is to provide 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 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 � 6253(a).)
Existing law 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 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
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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 � 6254(f).)
Existing law 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 �
6254(k).)
Existing law 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 � 13300(a)(1).)
Existing law 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:
The courts of California.
Peace officers of California, as defined.
District attorneys of California.
Prosecuting city attorneys of any city within
California.
City attorneys pursuing civil gang injunctions.
Probation officers of California.
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Parole officers of California.
A public defender or attorney of record when
representing a person in proceedings upon a petition for a
certificate of rehabilitation and pardon.
A public defender or attorney of record when
representing a person in a criminal case if authorized
access by statutory or decisional law.
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.
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.
The subject of the local summary criminal history
information.
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.
Any managing or supervising correctional officer of a
county jail or other county correctional facility.
Local child support agencies when a local child support
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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.
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.
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. (Penal Code � 13300(b).)
Existing law 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 � 13300(c).)
Existing law provides that a prosecutor may, in response to a
written request made pursuant to the PRA, provide information
from 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 �
13300(j).)
Existing law states that a local criminal justice agency shall
not release information under the following circumstances:
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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;
Information concerning an arrest or detention followed
by a dismissal or release without attempting to determine
whether the individual was exonerated; and
Information concerning an arrest without a disposition
without attempting to determine whether diversion has been
successfully completed or the individual has been
exonerated. (Penal Code � 13300(n).)
Existing law 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 �432.7(a).)
Existing law 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,
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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 � 432.7(g)(2).)
Existing law 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 � 13302.)
This bill provides that Penal Code Section 13302 does not
prohibit a public prosecutor 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.
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
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.
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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.
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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
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:
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
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transparency to government information more efficiently
and effectively. AB 2222 does not make any additional
information disclosable, it just allows a response in
electronic format obtained from the case management
data base system.
2. Background
According to background from the sponsor of this bill:
Our ESI case management database meets the current
technical definition set forth in PC 1330 of "local
criminal history information." It is a master record
of information pertaining to criminal history and
contains such information as name, date of birth,
descriptions, dates of arrest, agencies booking
numbers, charges, dispositions, etc. Thus disclosure
of any information from the ESI database is prohibited
by Section 13302, unless it meets one of the exeptions
set forth in section 13300 or 13305.
More and more, the San Diego District Attorney's Office
and other district attorneys' offices are converting to
paperless case files and paperless record keeping. In
fact, the PRA requires disclosure of records held in
electronic format. In San Diego, our ESI case
management data base may include all case related
information including the case file itself. It may
also include information that is not considered part of
the "investigatory file" for purposes of the PRA or
records that are excepted such as those made pursuant
to PC 6254(f) �information to victim or victims'
representatives; PC 6254 (f)(1) �information on
contemporaneous arrests; press releases, etc.]; PC 6254
(f)(2) � information re complaints and requests for
assistance]; and PC 6254 (f)(3)) �information for
scholarly or journalistic purposes].
Thus, requests under the PRA can involve the
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potentially required disclosure of information that
goes beyond the exceptions currently allowed under PC
13300 subdivisions (h) �statistical information];
(j)�information for scholarly or journalistic
purposes.]
Currently, when there is a request from the public or a
victim under the PRA, a search for the response to the
request, even where authorized or required under the
PRA may require a search and disclosure of information
from our master ESI database. This disclosure of
information then runs afoul of the prohibitions set
forth under PC 1300 even though we have no intention of
releasing a "rap-sheet" like list of arrests and
convictions.
Thus, this bill will clarify the law so that a prosecutor can
comply with the PRA while not violating the prohibition on
furnishing criminal record information.
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