California Legislature—2013–14 Regular Session

Assembly Bill No. 1442

Introduced by Assembly Member Gatto

January 6, 2014

An act to amend Sections 1798.3, 1798.14, 1798.17, 1798.18, 1798.19, and 1798.53 of the Civil Code, relating to the Information Practices Act of 1977.

LEGISLATIVE COUNSEL’S DIGEST

AB 1442, as introduced, Gatto. The Information Practices Act of 1977: local government.

The Information Practices Act of 1977 prescribes requirements on state agencies for the maintenance of personal information, as defined, and restricts a state agency from disclosing personal information contained in its records, as specified. The act requires each agency to maintain in its records only personal information that is relevant and necessary to accomplish a purpose of the agency required or authorized by the California Constitution or statute or mandated by the federal government. The act makes a person who willfully requests or obtains a record from an agency under false pretenses or who intentionally discloses specific information under certain circumstances guilty of a misdemeanor. The act provides that an intentional violation of its provisions by an officer or employee of an agency constitutes cause for discipline, including termination of employment. The act also provides a civil action against an agency for specified failures under the act. The act prohibits an individual’s name and address from being distributed for commercial purposes, as specified, unless specifically authorized by law.

This bill would expand the definition of “agency” to include local governmental entities.

The bill would generally require an agency to destroy personal information maintained in accordance with the act when the agency determines the personal information is no longer relevant and necessary to accomplish its purpose. The bill would establish special provisions for a Kindergarten and grades 1 to 12, inclusive, school district regarding information destruction and parental notification for personal information on students maintained by the district.

By expanding the duties of local officials and expanding the definition of a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.

With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1798.3 of the Civil Code is amended to
read:

1798.3.  

As used in this chapter:

(a) The term “personal information” means 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.

(b) The term “agency” means every state begin insert or local end insert office, officer,
department, division, bureau, board, commission, or other state begin insert or
local end insert agency, except that the term agency shall not include:

(1) The California Legislature.

(2) Any agency established under Article VI of the California
Constitution.

(3) The State Compensation Insurance Fund, except as to any
records which contain personal information about the employees
of the State Compensation Insurance Fund.

begin delete

(4) A local agency, as defined in subdivision (a) of Section 6252
of the Government Code.

end delete

(c) The term “disclose” means to disclose, release, transfer,
disseminate, or otherwise communicate all or any part of any record
orally, in writing, or by electronic or any other means to any person
or entity.

(d) The term “individual” means a natural person.

(e) The term “maintain” includes maintain, acquire, use, or
disclose.

(f) The term “person” means any natural person, corporation,
partnership, limited liability company, firm, or association.

(g) The term “record” means any file or grouping of information
about an individual that is maintained by an agency by reference
to an identifying particular such as the individual’s name,
photograph, finger or voice print, or a number or symbol assigned
to the individual.

(h) The term “system of records” means one or more records,
which pertain to one or more individuals, which is maintained by
any agency, from which information is retrieved by the name of
an individual or by some identifying number, symbol or other
identifying particular assigned to the individual.

(i) The term “governmental entity,” except as used in Section
1798.26, means any branch of the federal government or of the
local government.

(j) The term “commercial purpose” means any purpose which
has financial gain as a major objective. It does not include the
gathering or dissemination of newsworthy facts by a publisher or
broadcaster.

(k) The term “regulatory agency” means the Department of
Business Oversight, the Department of Insurance, the Bureau of
Real Estate, and agencies of the United States or of any other state
responsible for regulating financial institutions.

SEC. 2.  

Section 1798.14 of the Civil Code is amended to read:

1798.14.  

begin insert (a) end insert begin insert   end insert Each agency shall maintain in its records only
personal information begin delete which end delete begin insert that end insert is relevant and necessary to
accomplish a purpose of the agency required or authorized by the
California Constitution begin delete or end delete begin insert , end insert statute begin insert , ordinance, end insert or mandated by the
federal government begin insert , and, except as provided in subdivision (b),
shall destroy the personal information when the agency determines
the personal information is no longer relevant and necessary to
accomplish that purpose end insert .

begin insert

(b) A school district for kindergarten or grades 1 to 12,
inclusive, that gathers and maintains in its records personal
information on a student enrolled in the school district in shall do
the following:

end insert begin insert

(1) Destroy personal information maintained in its records
within one year of a student turning 18 years of age, or within one
year after the student is no longer enrolled in the school district,
whichever is first.

end insert begin insert

(2) Notify each parent or guardian of the student that personal
information is being gathered and that any information maintained
in its records with regard to the student shall be destroyed in
accordance with paragraph (1).

end insert

SEC. 3.  

Section 1798.17 of the Civil Code is amended to read:

1798.17.  

Each agency shall provide on or with any form used
to collect personal information from individuals the notice specified
in this section. When contact with the individual is of a regularly
recurring nature, an initial notice followed by a periodic notice of
not more than one-year intervals shall satisfy this requirement.
This requirement is also satisfied by notification to individuals of
the availability of the notice in annual tax-related pamphlets or
booklets provided for them. The notice shall include all of the
following:

(a) The name of the agency and the division within the agency
that is requesting the information.

(b) The title, business address, and telephone number of the
agency official who is responsible for the system of records and
who shall, upon request, inform an individual regarding the location
of his or her records and the categories of any persons who use
the information in those records.

(c) The authority, whether granted by statute, regulation, begin delete or end delete
executive order begin delete which end delete begin insert , or ordinance that end insert authorizes the
maintenance of the information.

(d) With respect to each item of information, whether submission
of such information is mandatory or voluntary.

(e) The consequences, if any, of not providing all or any part
of the requested information.

(f) The principal purpose or purposes within the agency for
which the information is to be used.

(g) Any known or foreseeable disclosures begin delete which end delete begin insert that end insert may be
made of the information pursuant to subdivision (e) or (f) of
Section 1798.24.

(h) The individual’s right of access to records containing
personal information begin delete which end delete begin insert that end insert are maintained by the agency.

This section does not apply to any enforcement document issued
by an employee of a law enforcement agency in the performance
of his or her duties wherein the violator is provided an exact copy
of the document, or to accident reports whereby the parties of
interest may obtain a copy of the report pursuant to Section 20012
of the Vehicle Code.

The notice required by this section does not apply to agency
requirements for an individual to provide his or her name,
identifying number, photograph, address, or similar identifying
information, if this information is used only for the purpose of
identification and communication with the individual by the
agency, except that requirements for an individual’s social security
number shall conform with the provisions of the begin delete Federal end delete begin insert federal end insert
Privacy Act of 1974 (Public Law 93-579).

SEC. 4.  

Section 1798.18 of the Civil Code is amended to read:

1798.18.  

begin insert (a) end insert begin insert   end insert Each agency shall maintain all records, to the
maximum extent possible, with accuracy, relevance, timeliness,
and completeness.

begin delete

Such

end delete

begin insert (b) end insert begin insert   end insert begin insert That end insert standard need not be met except when begin delete such end delete begin insert those end insert
records are used to make any determination about the individual.
When an agency transfers a record outside of state begin insert or local end insert
government, it shall correct, update, withhold, or delete any portion
of the record that it knows or has reason to believe is inaccurate
or untimely.

SEC. 5.  

Section 1798.19 of the Civil Code is amended to read:

1798.19.  

Each agency begin insert , end insert when it provides by contract for the
operation or maintenance of records containing personal
information to accomplish an agency function, shall cause,
consistent with its authority, the requirements of this chapter to be
applied to those records. For purposes of Article 10 (commencing
with Section 1798.55), any contractor and any employee of the
contractor, if the contract is agreed to on or after July 1, 1978, shall
be considered to be an employee of an agency. begin delete Local government
functions mandated by the state are not deemed agency functions
within the meaning of this section. end delete

SEC. 6.  

Section 1798.53 of the Civil Code is amended to read:

1798.53.  

begin insert (a) end insert begin insert   end insert Any person, other than an employee of the state
or of a local government agency acting solely in his or her official
capacity, who intentionally discloses information, not otherwise
public, which they know or should reasonably know was obtained
from personal information maintained by begin delete a state end delete begin insert an end insert agency or from
“records” within a “system of records” (as these terms are defined
in the begin delete Federal end delete begin insert federal end insert Privacy Act of 1974 begin delete (P. L. 93-579; 5 end delete begin insert (5 end insert
U.S.C. begin insert Sec. end insert 552a)) maintained by a federal government agency,
shall be subject to a civil action, for invasion of privacy, by the
individual to whom the information pertains.

begin delete

In

end delete

begin insert (b) end insert begin insert   end insert begin insert In end insert any successful action brought under this section, the
complainant, in addition to any special or general damages
awarded, shall be awarded a minimum of two thousand five
hundred dollars ($2,500) in exemplary damages as well as
attorney’s fees and other litigation costs reasonably incurred in
the suit.

begin delete

The

end delete

begin insert (c) end insert begin insert   end insert begin insert The end insert right, remedy, and cause of action set forth in this section
shall be nonexclusive and is in addition to all other rights, remedies,
and causes of action for invasion of privacy, inherent in Section
1 of Article I of the California Constitution.

SEC. 7.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for certain
costs that may be incurred by a local agency or school district
because, in that regard, this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.

However, if the Commission on State Mandates determines that
this act contains other costs mandated by the state, reimbursement
to local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.