BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1660 (Alejo)
As Amended April 24, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Driver's Licenses: Nondiscrimination
DESCRIPTION
Existing law requires the Department of Motor Vehicles to issue
a driver's license to a person who signs an affidavit attesting
that he or she is ineligible for a social security account
number and unable to submit proof that his or her presence in
the United States is authorized under federal law. Existing law
also prohibits discrimination under the Unruh Civil Rights Act
against an individual because he or she holds or presents a
driver's license issued under these provisions. This bill would
also prohibit this discrimination under the Fair Employment and
Housing Act, prohibit a governmental authority from
discriminating against that individual, and clarify that the
person's affidavit is exempt from disclosure under the
California Public Records Act.
BACKGROUND
In response to the federal 9/11 Commission's recommendation that
federal standards be established for issuing driver's licenses
and other sources of identification, the federal REAL ID Act of
2005 was enacted to provide minimum security standards for the
issuance of sources of identification, including enhanced
security features on a driver's license or identification card
and a requirement for applicants to provide their social
security number, birth certificate, and proof of legal presence
in the United States. The REAL ID Act prohibits federal
agencies from accepting documents for official purposes (i.e.,
boarding an airplane or entering a federal building) unless the
(more)
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United States Department of Homeland Security (DHS) has
determined that the state meets the minimum standards. As of
December 20, 2013, 21 states and U.S. territories have met the
minimum standards required under the REAL ID Act, and 20 states,
including California, and territories have been granted an
extension for reaching full compliance. Twelve states and
territories are noncompliant.
Last year, AB 60 (Alejo, Ch. 524, Stats. 2013) authorized the
Department of Motor Vehicles (DMV) to issue an original driver's
license to a person who is unable to submit satisfactory proof
that the applicant's presence in the United States is authorized
under federal law if he or she meets all other qualifications
for licensure and provides satisfactory proof to DMV, of his or
her identity and California residency. In addition, AB 60
prohibited, pursuant to the Unruh Civil Rights Act,
discrimination against an individual who holds or presents that
driver's license and provided that the affidavit used to obtain
that driver's license is not a disclosable public record.
This bill would clarify that a person who holds or presents that
driver's license is also protected from employment and housing
discrimination under the Fair Employment and Housing Act and
from discrimination by a state or local government agency, and
that the affidavit submitted to obtain that driver's license is
exempt from public disclosure under the California Public
Records Act.
CHANGES TO EXISTING LAW
1. Existing law requires an application for a California
driver's license to contain the applicant's social security
account number and any other number or identifier determined
to be appropriate by the Department of Motor Vehicles (DMV).
(Veh. Code Sec. 12801(a).)
Existing law provides that an applicant who provides
satisfactory proof that his or her presence in the United
States is authorized under federal law, but who is not
eligible for a social security account number, is eligible to
receive an original driver's license if he or she meets all
other qualifications for licensure. (Veh. Code Sec.
12801(b).)
Existing law further provides that an applicant who is unable
to provide satisfactory proof that his or her presence in the
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United States is authorized under federal law may sign an
affidavit attesting that he or she is both ineligible for a
social security account number and unable to submit
satisfactory proof that his or her presence in the United
States is authorized under federal law. The submission of
this affidavit shall be accepted by the DMV in lieu of a
social security number, and this affidavit is not a public
record. (Veh. Code Sec. 12801(c).)
Existing law , the California Constitution, declares the
people's right to transparency in government. ("The people
have the right of access to information concerning the conduct
of the people's business, and therefore, the meetings of
public bodies and the writings of public officials and
agencies shall be open to public scrutiny....") (Cal. Const.,
art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA),
governs the disclosure of information collected and maintained
by public agencies. (Gov. Code Sec. 6250 et seq.) Generally,
all public records are accessible to the public upon request,
unless the record requested is exempt from public disclosure.
(Gov. Code Sec. 6254.) There are 30 general categories of
documents or information that are exempt from disclosure,
essentially due to the character of the information, and
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 with custody of the information.
Existing law provides that except with respect to public
records exempt from disclosure by express provisions of law,
each state or local agency, upon a request for a copy of
records that reasonably describes an identifiable record or
records, is required to make the records promptly available to
any person upon payment of fees covering direct costs of
duplication, or a statutory fee if applicable. (Gov. Code
Sec. 6253(b).)
This bill would clarify that the driver's license applicant's
affidavit submitted in lieu of a social security number is
private and confidential, and is exempt from disclosure under
the California Public Records Act (CPRA). Further, this bill
would prohibit disclosure of the affidavit by the DMV and
provide that the affidavit shall be used only for the purpose
of processing a driver's license application.
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2. Existing law requires the DMV to issue an original driver's
license to a person who is unable to submit satisfactory proof
that the applicant's presence in the United States is
authorized under federal law if he or she meets all other
qualifications for licensure and provides satisfactory proof
to the DMV of his or her identity and California residency.
The DMV is required to accept various types of documentation
for this purpose, as specified. (Veh. Code Sec. 12801.9(a).)
Existing law provides that discrimination against an
individual, who is unable to submit satisfactory proof that
the applicant's presence in the United States is authorized
under federal law but who has qualified for licensure and has
received a license issued by the DMV, because he or she holds
or presents that driver's license shall be a violation of law,
including, but not limited to, a violation of the Unruh Civil
Rights Act. (Veh. Code Sec. 12801.9(h).)
Existing law provides that information collected by the DMV in
connection with the driver's license described above is not a
public record and shall not be disclosed by the DMV except as
required by law. (Veh. Code Sec. 12801.9(i).)
Existing law prohibits the use of a driver's license to
consider an individual's citizenship or immigration status as
a basis for a criminal investigation, arrest, or detention.
(Veh. Code Sec. 12801.9(j).)
This bill would clarify that it shall be a violation of the
Unruh Civil Rights Act for a business establishment to
discriminate against that person.
This bill would also make it a violation of the California
Fair Employment and Housing Act (FEHA) for an employer or
other covered person or entity to discriminate against a
person because he or she holds or presents the above driver's
license.
This bill would clarify that these provisions do not alter an
employer's rights or obligations under federal law regarding
obtaining documentation evidencing identity and authorization
for employment, and an action taken by an employer that is
required under federal immigration law is not a violation.
This bill would specify that driver's license information
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obtained by an employer shall be treated as private and
confidential, is exempt from disclosure under the CPRA, and
shall not be disclosed to any unauthorized person or used for
any purpose other than to establish identity and authorization
to drive.
This bill would make it a violation for a state or local
governmental authority, agent, or person acting on behalf of a
state or local governmental authority, or a program or
activity that is funded directly or receives financial
assistance from the state to discriminate against an
individual because he or she holds or presents the above
driver's license.
This bill would clarify that information collected by the DMV
for issuance of the above-described driver's license is
private and confidential, and is exempt from disclosure under
the CPRA, and shall not be disclosed by the DMV or used for
any purpose other than processing a driver's license
application, except as required for the issuance or renewal of
a driver's license.
This bill would also clarify that the above-described driver's
license shall not be used as evidence of the holder's or
presenter's citizenship or immigration status, and shall not
be used as a basis for a criminal investigation, arrest, or
detention in circumstances where a person whose driver's
license was not issued using the alternative documentation
described above would not be criminally investigated,
arrested, or detained.
COMMENT
1. Stated need for the bill
The author writes:
This bill clarifies several aspects of AB 60 and adds language
to protect information collected during the AB 60 application
process.
AB 60 [(Alejo, Ch. 524, Stats. 2013)] allows non-citizens to
apply for a California driver's license. In order to comply
with federal law, under the Federal Real ID Act of 2005, AB 60
specifies that a driver's license issued to a non-citizen
applicant must have certain recognizable features. In order
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to prevent and penalize discrimination, certain provisions
were added to AB 60 to make clear that discrimination based on
the recognizable feature is a violation of the Unruh Civil
Rights Act and other provisions of state law. Because the
Unruh Civil Rights Act only applies to private sector
discrimination, it is unclear whether the provisions of the
bill extend to discrimination by a public actor. AB 1660
clarifies that it does.
In addition, AB 1660 clarifies that a business who is in
compliance with federal law is not violating state
discrimination laws, and that information collected by the
[California Department of Motor Vehicles (DMV)] pursuant to
the application process is exempt from the California Public
Records Act and can only be used for the purposes of
processing a driver's license.
2. Clarifying prohibition of discrimination
In order to conform to the requirements of the federal REAL ID
Act of 2005, AB 60 requires the DMV to include a recognizable
feature on the front of a driver's license obtained through the
affidavit process, as well as the statement: "This card is not
acceptable for official federal purposes. This license is
issued only as a license to drive a motor vehicle. It does not
establish eligibility for employment, voter registration, or
public benefits." Accordingly, a person holding or presenting
this driver's license will presumably make any person reading
the license aware that the license holder is ineligible to
receive a social security account and unable to provide proof
that the license holder is legally present in the United States.
Notably, driver's licenses are frequently requested when an
individual must prove he or she is of legal age to obtain goods
or services and to establish his or her identity.
Accordingly, AB 60 prohibited discrimination pursuant to the
Unruh Civil Rights Act and discrimination by a governmental
authority against a person holding or presenting a driver's
license obtained through the affidavit process. The Unruh Civil
Rights Act (Act) provides that all persons in California are
free and equal, and regardless of a person's sex, race, color,
religion, ancestry, national origin, disability, medical
condition, genetic information, marital status, or sexual
orientation, everyone is entitled to the full and equal
accommodations, advantages, facilities, privileges, or services
in all business establishments. (Civ. Code Sec. 51.) Arguably,
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AB 60 was intended to prohibit all discrimination against a
person holding or presenting a driver's license obtained through
the affidavit process, not just in business establishments.
Accordingly, this bill would clarify that discrimination of that
person is also prohibited under the Fair Employment and Housing
Act, which prohibits discrimination in hiring and employment
practices, as well as in rental housing and home ownership
practices. (Gov. Code Sec. 12900 et seq.) This bill would also
clarify that an individual presenting or holding that driver's
license is protected from discrimination by a local or state
governmental authority or a program or activity that is funded
directly or receives financial assistance from the state. These
clarifications are necessary to ensure that individuals who
qualify for the driver's license provided under existing law are
treated equally when he or she presents that driver's license to
obtain employment, housing, government services, or services at
any business in California.
As noted by a coalition of agricultural employment groups in
support, this bill provides an appropriate balance between
individual rights and employer obligations under federal law and
removes unnecessary duplication and ambiguity in the law. This
bill would provide that it would not alter an employer's rights
or obligations under federal law regarding obtaining
documentation evidencing identity and authorization for
employment, and any action taken by an employer required under
the federal Immigration and Nationality Act would not be a
violation.
3. Clarification of information exempt from public disclosure
Existing law provides that the affidavit, which is submitted and
signed by an individual attesting that he or she is in
ineligible for a social security account and unable to submit
satisfactory proof that his or her presence in the United States
is authorized under federal law, is not a public record. This
bill would clarify that the affidavit is private, confidential,
and exempt from disclosure otherwise required by the California
Public Records Act (CPRA). This bill would also specify that
the affidavit shall not be disclosed by the DMV and shall be
used only for the purpose of processing a driver's license
application.
The author asserts that this bill is clarifying in nature and is
intended to preempt a potential problem that could occur if the
applicant's information collected by the DMV is subsequently
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released for purposes not associated with the driver's license
application. Indeed, the language of AB 60 may provide a
loophole for the release of the applicant's information because,
although it provides that the applicant's affidavit is not a
public record, it does not specify that the information
collected shall not be disclosed by the DMV or shall only be
used for the purpose of processing a driver's license. As such,
the applicant's information could be disclosed to any local,
state, or federal agency for purposes not intended by the
Legislature. To address this problem, this bill will
specifically exempt from public disclosure under the CPRA the
applicant's affidavit, and prohibit the release of the affidavit
by the DMV to any public or private requestor.
4. Concerns raised regarding affidavit requirement
The American Civil Liberties Union of California (ACLU), in
support if amended, argues that "[a]s written, AB 60 requires
applicants to declare that they are both ineligible for a Social
Security Number (SSN) and that they are unable to submit proof
of authorized presence in the U.S. The affidavit requirement in
AB 60 is inaccurate because some undocumented individuals
actually have a valid SSN. We are concerned that the affidavit,
as currently written, could lead to attempts to use AB 60
licenses against individuals in immigration proceedings." The
author states that he is working with the ACLU and the DMV to
craft an appropriate driver's license application form that does
not require the applicant to indicate the method of
documentation used by the applicant. In this way, the
applicant, who qualifies for the AB 60 driver's license but does
not have written authorization for his or her presence in the
United States, would be protected from an attempt by state or
federal law enforcement to use the driver's license application
maintained by the DMV in connection with subsequent immigration
proceedings.
Support : Agricultural Council of California; California
Association of Nurseries and Garden Centers; California
Association of Winegrape Growers; California Chamber of
Commerce; California Cotton Ginners Association; California
Cotton Growers Association; California Grain and Feed
Association; California Grape and Tree Fruit League; California
Landscape Contractors Association; California Seed Association;
California State Floral Association; California Dry Bean
Association; California Pear Growers Association; California
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Farm Bureau Federation; Coalition for Humane Immigrant Rights of
Los Angeles; Pacific Egg and Poultry Association; San Jose
Silicon Valley Chamber of Commerce; Ventura County Agricultural
Association; Western Agricultural Processors Association;
Western Growers Association
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 60 (Alejo, Ch. 524, Stats. 2013) See
Background; Comments 1, 2, 3, and 4.
Prior Vote :
Assembly Floor (Ayes 50, Noes 17)
Assembly Committee on Judiciary (Ayes 7, Noes 3)
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