BILL ANALYSIS �
AB 2299
Page 1
Date of Hearing: May 2, 2012
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 2299 (Feuer) - As Amended: April 9, 2012
SUBJECT : Local government: public safety officials:
confidentiality.
SUMMARY : Authorizes the board of supervisors of a county to
establish a program whereby the names of certain public safety
officials may be redacted upon request from any property record
of principal residence that is disclosed to the public by that
county, except as specified. Specifically, this bill :
1)Authorizes the board of supervisors of a county to establish a
program that requires the name of a public safety official to
be redacted upon request from any property record that is
disclosed to the public by that county.
2)Exempts from the provisions of the Public Records Act the
disclosure of the name of any public safety official contained
in any property record of a county that is disclosed to the
public, if the public safety official has requested
confidentiality of that information pursuant to this measure,
and the county maintains a program that redacts that
information from property records.
3)Permits counties to use or maintain records internally that
include the name of a public safety official who has requested
redaction under the program.
4)Authorizes the county to charge a reasonable fee for
participation in the program, provided the fee covers only the
costs of the program.
5)Requires counties that establish a public safety official
confidentiality program pursuant to this measure and that sell
aggregate data to require that the names of program
participants remain confidential and not be posted on any
Internet Web site or solicited, sold, or traded.
6)Allows a public safety official whose name is made public as a
result of a violation of this measure to bring an action
seeking injunctive or declarative relief in any court of
AB 2299
Page 2
competent jurisdiction. If a court finds that a violation has
occurred, it may grant injunctive or declarative relief and
shall award the official court costs and reasonable attorney's
fees.
A fine not exceeding one thousand dollars ($1,000) may be
imposed for a violation of the court's order for an injunction
or declarative relief obtained pursuant to this paragraph.
7)Allows a public safety official whose name is solicited, sold,
or traded in violation of this measure to bring an action in
any court of competent jurisdiction. If a jury or court finds
that a violation has occurred, it shall award damages to that
public safety official in an amount up to a maximum of three
times the actual damages but in no case less than four
thousand dollars ($4,000).
8)Provides that a county that exercises reasonable care shall
not be held civilly liable for the unintentional disclosure of
the name of a public safety official.
9)Provides that the name of a public safety official shall be
released upon request of the public safety official.
10)Defines the term "post" to mean to intentionally communicate
or otherwise make available to the general public.
11)Defines the term "property record" to mean a property record
that contains the address of principal residence of the public
safety official.
12)Defines the term "public safety official" to mean a person
listed in Section 27279.7 who is eligible for, or participates
in, the program.
13)Provides that the name of any of the following public safety
officials, whether active or retired, shall be redacted from a
property record if the public safety official requests the
confidentiality of that information:
a) An employee of a federal, state, or local law
enforcement agency, not under suspension or otherwise
lacking in good standing, except an employee whose
principal duties are clerical or who is not engaged in law
enforcement operations;
AB 2299
Page 3
b) A judge, federal magistrate, court commissioner, or
referee who has statutory authority to preside in criminal
proceedings;
c) An attorney of a federal, state, or local prosecutorial
or defense agency who represents that office in criminal
matters;
d) An employee of a federal, state, or local prosecutorial
or defense agency whose responsibilities routinely place
that employee in personal contact with persons under
investigation for, charged with, or convicted of,
committing criminal acts; or,
e) An employee of a federal, state, or local agency who
supervises inmates or is required to have a prisoner in his
or her care or custody, or a probation officer or parole
agent.
14)Provides that the provisions of this bill shall not apply to
an elected official in an elected office, or to a person who
has been appointed on a temporary basis to fill a vacancy in
an elected office, when that elected office is the attorney
general, district attorney, sheriff, public defender, or city
attorney or prosecutor.
15)Provides that the name of a public safety official shall not
be disclosed under this measure, except to any of the
following:
a) A court;
b) A law enforcement agency;
c) The State Board of Equalization;
d) An attorney in a civil or criminal action that
demonstrates to a court the need for the name, if the
disclosure is made pursuant to a subpoena; or
e) A governmental agency to which, under any law,
information is required to be furnished from records
maintained by the county.
16)Declares that the Legislature's intent in enacting this
AB 2299
Page 4
measure is to authorize the board of supervisors of any county
to establish a county program to redact the name of a public
safety official from a property record that contains the
address of the principal residence of the public safety
official.
17)Finds and declares that this measure imposes a limitation on
the public's right of access to the meetings of public bodies
or the writings of public officials and agencies, and that
this measure is necessary to prevent crimes against public
safety officials and their families.
EXISTING LAW :
1)Sets forth the duties and powers of the board of supervisors
of a county and the county recorder and county assessor of
each county.
2)Requires the county recorder to, upon payment of proper fees
and taxes, accept for recordation, any instrument, paper, or
notice that is authorized or required by statute or court
order to be recorded, as specified.
3)Allows any instrument or judgment affecting the title to, or
possession of, real property to be recorded.
4)Requires a document that effects or evidences a transfer or
encumbrance of an interest in real property to include the
name or names in which the interest appears of record.
5)Requires the county recorder of each county to establish a
social security truncation program for the redaction of social
security numbers to create a public record version of official
records.
6)Requires, pursuant to the Public Records Act, state and local
agencies to make public records available upon receipt of a
request that reasonably describes an identifiable record not
otherwise exempt from disclosure, and upon payment of fees
covering direct costs of duplication. There are 30 general
categories of documents or information that are exempt from
disclosure based on the character of the information. Unless
it is shown that the public's interest in disclosure outweighs
the public's interest in non-disclosure of the information,
the exempt information may be withheld by the public agency
AB 2299
Page 5
that has custody of the information.
7)Require, pursuant to the state Constitution, that a statute
that limits the right of access to the meetings of public
bodies or the writings of public officials and agencies be
adopted with findings demonstrating the interest protected by
the limitation and the need for protecting that interest.
FISCAL EFFECT : None
COMMENTS :
1)This bill would authorize the creation of voluntary
confidentiality programs at the county level to redact the
names of public safety officials from publicly available
property records as a means to better protect those officials
from threats and intimidation. This measure is
author-sponsored.
2)According to the author, "�t]his legislation would permit (but
not require) a county board of supervisors to initiate a
confidential records program for public safety officials'
primary home address. Currently, for example, a police
officer's home address is contained on property records that
are generally open to the public at the offices of a county
assessor and/or recorder, and much of the same information is
released to data purchasers. AB 2299 provides counties with
the authority to implement a program to protect public safety
officials by ensuring that county records are not used to
locate their home address and potentially endanger them and
their families."
3)In practice, this bill would permit individual counties to
create their own property record confidentiality programs for
certain active and retired public safety officials. Such a
program would require that the name of eligible officials be,
upon request, redacted from the publicly available property
records (including data sets available for sale) managed by
the county. The county would retain the flexibility to set a
cost-recovery fee for the service. Counties' own internal
records would not be affected, nor would specified
governmental agencies be precluded from accessing the records
in unredacted form.
The public safety officials eligible for the protections of
this bill are: a) employees of federal, state or local law
AB 2299
Page 6
enforcement agencies (except clerical and non-operational
staff), b) judges, magistrates, court commissioners and
referees, c) criminal attorneys with a federal, state, or
local prosecutorial or defense agency, d) employees of a
federal, state, or local prosecutorial or defense agency
routinely in contact with suspects, and e) employees of a
federal, state, or local agency responsible for inmates, or
those acting as a custodian, probation or parole officer.
Elected officials are explicitly excluded from the program.
The bill gives covered officials the right to seek injunctive
or declarative relief in the case of a violation, along with
court costs, attorneys' fees, and a fine not to exceed $1,000
if a court-ordered injunction is violated. The official may
also seek treble damages of at least $4,000 if their
confidential information is traded or sold. Counties
exercising reasonable care may not be held civilly liable for
an unintentional disclosure.
4)According to supporters, the need for this bill lies in the
increased danger to law enforcement officials because the
accessibility of personal information about that official
might allow a dangerous person to find and target them.
According to the Los Angeles City Attorney, "between 2003 and
2008, federal prosecutors and judges experienced an over 50%
increase in the number of threats and harassing
communications. Just last December, an anonymous internet
group publicized the home addresses of more than one dozen
members of the Los Angeles Police Department's command staff.
Prosecutors, judges, law enforcement, and others place their
own safety at risk to protect our local communities, yet,
everyday, their personal home addresses remain accessible to
anyone."
There is also some precedent for legislative action to protect
the personal information of public safety officials. As the
Los Angeles Police Protective League (LAPPL) points out,
"California law allows certain officials to have their
Department of Motor Vehicles records shielded from public
disclosure. Current law also provides recourse if a public
safety official's address is posted on the internet."
Opponents also point to the online availability of some county
real estate data as further evidence of the danger. LAPPL
AB 2299
Page 7
states that "as this data is sold by assessors and recorders,
the name and home addresses of public safety officials
frequently can be found posted on the internet and made
available to the general public. This has the potential to
endanger public safety officials and their families."
5)This bill applies to public property records, and therefore
would affect public records kept by both county recorders and
county assessors.
A county recorder's office records or files many different kinds
of authorized documents, certificates and maps. Once
recorded, those documents become part of the public records of
the county recorder and are made available for examination by
members of the public. Such documents are recorded to provide
the public with notice of chain of title or other interest in
real property.
The documents maintained by the recorder are indexed.
Generally speaking, index searches are limited to the identity
of the grantor and grantee. Most counties will have one
single index, and a search for a particular name would bring
up a list of documents (grant deeds, liens, etc.) and their
location (recorder book number and page number). Once
identified, a clerk would often need to physically locate each
document in order to view or copy it.
Some county recorders compile and sell aggregated electronic
data based on the recorder public documents. For example, the
Santa Clara County Clerk-Recorder's office sells data related
to real property, such as deeds, abstracts of judgments,
liens, maps, etc. Copies of documents are generally sold as
TIF images, which do not include searchable text data. The
county's locator index (also for sale) contains a record for
the name of each party to a document along with the document
number, date of recording, and document type. Data is sold in
packages based on document type and time period requested,
although custom requests can be made at a cost of $131 per
hour.
A county assessor's office keeps the assessment roll, which
contains the annual assessed valuation of all real and
AB 2299
Page 8
business personal property in the county, and is the basis
upon which property taxes are levied. The roll is regularly
used by title companies, realtors, the media and prospective
buyers and sellers of property. According to the California
Assessors' Association, the roll is also "used for legitimate
business and government purposes such as liens and debt
collection, locating people that may be involved in criminal
activity, including tracking down deadbeat dads and locating
slum landlords."
6)Opponents of this bill argue that there are several different
problems and issues arising from this bill in its current
form:
a) Current systems are not designed to permit wholesale
redaction . According to the California Land Title
Association (CLTA), "�t]he sponsors of AB 2299 have an
inaccurate understanding of how county recorder records are
held, maintained, and shared with interested parties.
Unlike traditional 'databases' held by many governmental
and private companies and individuals, county recorders do
NOT hold scanned documents in a pure data format that can
be queried, sorted, cloaked, and manipulated any number of
ways within the database program. Thus, AB 2299 is
difficult, if not impossible, to implement?
Because documents will often contain information that is NOT
discoverable through a query of the indexing process, often
it takes a manual search performed by a human being to
discover if the document has information of interest?"
The Santa Clara County Assessor estimates that the cost to
develop a system to comply with this bill would range from
$150,000 to more than $500,000.
b) Practical problems with implementation may compromise
public access . Furthermore, CLTA contends that the
disruption caused by the exhaustive search they believe
would be required by this bill may mean an end to public
access of property records. "While such a situation may
seem far-fetched, fairly recent examples of this type of
problem occurred in Texas when social security numbers were
supposed to be cloaked overnight by statute. Because the
county recorders in Texas did not have the technical
ability to find all of the documents containing social
AB 2299
Page 9
security numbers in order to comply with the law, Texas
faced a likely shutdown of ALL county recorder records.
It was only the intervention of the Texas State Attorney
General and an emergency regulatory decree that allowed
county recorders to continue to provide information until
Texas could develop a 'redaction' approach similar to
California's. Slowly, over time, the Texas county
recorders were able to slowly find and redact social
security numbers as the statute required. Thus, if they
cannot find all of the needles in the haystack, the county
recorders may very well have no choice other than cutting
off access to the hay." �emphasis removed]
c) Potential negative impacts on constructive notice .
Another issue is the impact of redaction on the legal
doctrine of 'constructive notice', which is an integral
part of California's real property law regime. According
to the County Recorders' Association of California, "County
records throughout the State uphold the public's right to
access and view land records?�T]he established legal
doctrine of 'constructive notice' ensur�es] that everyone
knows about and has access to the records we maintain
related to real estate transactions?AB 2299 would establish
a class of individuals who could hide their interest in
real property. By hiding their information individuals
will be able to conduct business outside of the public's
view resulting in different classes of property owners and
the demise of California's constructive notice property
rights system. Recorder's offices make complete, accurate
and permanent records. Every document recorded is indexed
in a manner which allows them to be found and provide
constructive notice. AB 2299 will eliminate the ability to
find documents in out records."
d) Potential increase in real estate transaction costs and
delays . CLTA contends that this measure would complicate
real estate transactions involving covered officials.
"�I]t is likely that all real estate transactions relating
to 'public safety officials' will now require lengthy and
costly manual title searches in order to provide the public
safety official seeking to buy, sell, transfer, or
refinance real property. For example, if a public safety
official seeks to refinance his or her real property, we
can quickly search title records to ascertain if they
AB 2299
Page 10
indeed own the real property and if outstanding liens exist
that must be extinguished in escrow before a new loan is
recorded?
However, if all county recorder records are cloaked so that
this public safety official information disappears, we as
an industry will now have to manually and painstakingly
recreate all of the public records related to the public
safety official, as well as manually check with the
Franchise Tax Board and California Child Support Collection
Agency to make sure that they do not owe money to any
parties.
In essence, by removing the public safety official from
public records that are designed to both protect them and
force them to make good on obligations they owe to
creditors, we will have dramatically increased the time and
money each of these public safety officials must expend
just to do the ordinary real estate transactions they
currently take for granted. In addition, if county
recorders are unable to maintain county recorder records as
they currently do, this may have a negative impact on ALL
consumers who use county recorder records to conduct
ordinary real estate transactions."
e) Potential for fraud and negative impacts on enforcement
of liens and child support obligations . According to the
California Escrow Association, if this bill were passed,
"it is likely that all real estate transactions relating to
'public safety officials' would require lengthy and costly
additional closing procedures for transactions involving a
public safety official seeking to buy, sell, transfer, or
refinance real property?�I]f a public safety official seeks
to refinance his or her real property?�any outstanding
liens would not be] associated with a particular property,
but are instead tied directly to the name of the property
owner, and this would be particularly susceptible to being
entirely unaccounted for, that is, neither collected nor
paid in the escrow process as a direct result of the
cloaking effect of redaction." The same issue could be
said of child support obligations and judgment liens as
well.
Furthermore, the California Newspaper Publishers
Association expressed concerns about how a confidentiality
AB 2299
Page 11
program might be used to perpetrate fraud. "AB 2299 would
bar journalists and the public from investigating the
situation unfolding in Los Angeles where the assessor is
accused of collecting campaign contributions from property
owners in exchange for lowered property assessments. The
bill would completely insulate and protect any public
safety official who might be involved in this type of
scheme and would eradicate any public scrutiny, oversight
or accountability.
1)Given the concerns raised by this bill, the Committee may wish
to consider the follow issues and potential amendments to the
bill:
a) In order to prevent fraudulent use of the proposed
program, the Committee may wish to consider whether or not
the bill should contain a requirement that the recorder's
or assessor's office require photo identification and proof
of eligibility/good standing before processing a request.
b) In order to simplify the process of determining
eligibility, the Committee may wish to consider whether or
not the bill should contain a requirement that a
participating county compile a list of eligible persons or
positions, perhaps based on agency and job classification.
That way, a clerk with the recorder's or assessor's office
would only need to check the list to determine a person's
eligibility to participate.
c) The eligibility criteria provided in the current form of
the bill are somewhat vague and inconsistent. For example,
the bill provides eligibility for retired officials
regardless of length of time since separation, but not for
individuals who may have left the position recently for
another job. Furthermore, it is not clear what the term
"good standing" would mean in practice, although it might
be wise to treat some criminal convictions (such as those
for fraud) or court orders (for non-payment of child
support) as disqualifying. As such, the Committee may wish
to consider whether or not the bill's eligibility criteria
should be simplified to apply only to active officials and
those who have separated from an eligible position in the
last five years.
d) While the extent of the records search required to be
AB 2299
Page 12
undertaken to find and redact a name is not explicit in
this bill, more specific terms might make this bill more
easily implemented. The Committee may wish to consider
whether or not the bill should be amended to specify that
the only redaction required would be for those documents
that show up under a direct grantor/grantee name search -
there would be no legal obligation to check other records
for the individual's name.
1)The following are examples of recent legislation closely
related to information privacy and public officials:
a) AB 1813 (Lieu), Chapter 194, Statutes of 2010, included
the information provided to cellular phone applications in
the information that a public official may ask to be
removed from the internet and to expand the definition of
peace officer within the definition of public official.
b) AB 32 (Lieu), Chapter 403, Statutes of 2009, expanded
current law relative to the personal information of an
elected or appointed official by allowing an agent of the
public official to make the written demand for the removal
of the Internet posting of the official's home address or
telephone number.
c) AB 1595 (Evans), Chapter 343, Statutes of 2005, allowed
for specified elected or appointed officials to obtain an
injunction against any person or entity that publicly posts
on the Internet the home address or telephone number of
that official, and allows for damages if this disclosure
was made with intent to cause bodily harm.
d) AB 2238 (Dickerson), Chapter 621, Statutes of 2002,
provided for, among other things, an advisory task force to
analyze ways to protect a public safety official's home
information, and required the task force to submit a report
to the Legislature by September 1, 2003. That report was
released to the Legislature in January 2004, and contained
detailed findings and recommendations, a summary of recent
incidents involving threats or violence, and proposals for
legislative action.
1)Support arguments : According to the Los Angeles City
Attorney, "�e]xisting privacy protections fail to keep
property records of police officers, judges, and prosecutors
AB 2299
Page 13
confidential. AB 2299 will close this loophole by enabling
counties to prevent the release of these property records.
Most importantly, AB 2299 will provide prosecutors and other
officials with an added safeguard against personal
intimidation, threats, and dangers arising from the release of
their home addresses."
Opposition arguments : According to the Santa Clara County
Assessor, "?the proposed legislation would be cost prohibitive
to implement and a nightmare to administer?.�P]ublic
accessibility of assessment roll data ?�are] used for
legitimate business and government purposes such as liens and
debt collection?tracking down deadbeat dads and locating slum
lords?.It is likely this law would be abused to evade child
support payments and other financial responsibilities."
REGISTERED SUPPORT / OPPOSITION :
Support
Association for Los Angeles Deputy Sheriffs
Association of Orange County Deputy Sheriffs
California Correctional Peace Officers Association
California Fraternal Order of Police
California Police Chiefs Association
California State Sheriffs' Association
Chief Probation Officers of California
City of Los Angeles
Long Beach Police Officers Association
Los Angeles City Attorney's Office
Los Angeles County Professional Peace Officers Association
Los Angeles County Sheriff's Department
Los Angeles Police Protective League
Hon. James R. Brandlin, Los Angeles Superior Court
Peace Officers Research Association of California
Sacramento County Deputy Sheriffs Association
Sacramento County Sheriff's Department
Santa Ana Police Officers Association
Opposition
California Assessors' Association
California Escrow Association
California Land Title Association
California Newspaper Publishers Association
AB 2299
Page 14
County Recorders Association of California
Office of the Assessor, County of Santa Clara
Analysis Prepared by : Hank Dempsey / L. GOV. / (916) 319-3958