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SB-1318 Public records: confidentiality.(1999-2000)

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SB1318:v91#DOCUMENT

Senate Bill No. 1318
CHAPTER 562

An act to amend Section 2166.5 of the Elections Code, and to amend Sections 6205, 6205.5, 6206, 6206.5, 6206.7, 6207, 6208.5, and 6209.7 of, to amend the heading of Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of, and to repeal Section 6209.5 of, the Government Code, relating to public records.

[ Filed with Secretary of State  September 20, 2000. Approved by Governor  September 18, 2000. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 1318, Alpert. Public records: confidentiality.
(1) Existing law establishes a program until January 1, 2005, known as “Address Confidentiality for Victims of Domestic Violence” which authorizes specified persons to complete an application containing specified information in person at a community-based victims’ assistance program to be approved by the Secretary of State for the purpose of enabling state and local agencies to respond to requests for public records without disclosing a program participant’s residence address contained in any public record, including the program participant’s voter registration, and requires the Secretary of State to act as that person’s agent for service of process and to designate a substitute mailing address for program participants pursuant to specified procedures that state and local agencies are required to use at the request of a program participant. Under existing law, any person who makes a false statement in an application is guilty of a misdemeanor and any person who is granted confidentiality pursuant to these provisions may file a new affidavit of voter registration or reregistration and be considered an absent voter for subsequent elections until the county elections official is notified otherwise by the Secretary of State or the voter.
This bill would rename the program as “Address Confidentiality for Victims of Domestic Violence and Stalking” and would add victims of stalking to its provisions. The bill would prescribe additional supporting information for victims of domestic violence that may be included in an application and additional supporting information for victims of stalking that must be included in an application. By including victims of stalking, the bill would impose new duties on local public officials and expand the scope of an existing crime, thereby creating a state-mandated local program.
(2) Existing law also requires the Secretary of State to notify certain persons where there are specified court orders or court actions under these provisions and provides that a program participant who obtains a name change loses his or her certification as a program participant. Existing law also prohibits the county clerk, upon notification, from making available for inspection or copying the name and address of a program participant contained in marriage applications and records filed under these provisions.
This bill would revise the notification procedures and would provide instead that a program participant’s certification may be terminated if he or she does not notify the Secretary of State of a name change within 7 days. The bill would also repeal the prohibition relating to the county clerk.
(3) This bill would incorporate additional changes in Section 2166.5 of the Elections Code or Sections 6205 and 6206.5 of the Government Code proposed by AB 2214 or AB 205, that would become operative only if either or both of those bills and this bill are enacted and become effective on or before January 1, 2001, and this bill is enacted last. (4) 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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000.
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.

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


SECTION 1.

 Section 2166.5 of the Elections Code is amended to read:

2166.5.
 (a) Any person filing with the county elections official a new affidavit of registration or reregistration may have the information relating to his or her residence address and telephone number appearing on the affidavit, or any list or roster or index prepared therefrom, declared confidential upon presentation of certification that the person is a participant in the Address Confidentiality for Victims of Domestic Violence and Stalking program pursuant to Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code.
(b) Any person granted confidentiality under subdivision (a) shall:
(1) Be considered an absent voter for all subsequent elections or until the county elections official is notified otherwise by the Secretary of State or in writing by the voter. A voter requesting termination of absent voter status thereby consents to placement of his or her residence address and telephone number in the roster of voters.
(2) In addition to the required residence address, provide a valid mailing address to be used in place of the residence address for election, scholarly, or political research, and government purposes. The elections official, in producing any list, roster, or index may, at his or her choice, use the valid mailing address or the word “confidential” or some similar designation in place of the residence address.
(c) No action in negligence may be maintained against any government entity or officer or employee thereof as a result of disclosure of the information that is the subject of this section unless by a showing of gross negligence or willfulness.
(d) Subdivisions (a) and (b) shall not apply to any person granted confidentiality upon receipt by the county elections official of a written notice by the address confidentiality program manager of the withdrawal, invalidation, expiration, or termination of the program participant’s certification.
(e) This section shall remain in effect only until January 1, 2005, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2005, deletes or extends that date.

SEC. 1.5.

 Section 2166.5 of the Elections Code is amended to read:

2166.5.
 (a) Any person filing with the county elections official a new affidavit of registration or reregistration may have the information relating to his or her residence address, telephone number, and E-mail address appearing on the affidavit, or any list or roster or index prepared therefrom, declared confidential upon presentation of certification that the person is a participant in the Address Confidentiality for Victims of Domestic Violence and Stalking program pursuant to Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code.
(b) Any person granted confidentiality under subdivision (a) shall:
(1) Be considered an absent voter for all subsequent elections or until the county elections official is notified otherwise by the Secretary of State or in writing by the voter. A voter requesting termination of absent voter status thereby consents to placement of his or her residence address, telephone number, and E-mail address in the roster of voters.
(2) In addition to the required residence address, provide a valid mailing address to be used in place of the residence address for election, scholarly, or political research, and government purposes. The elections official, in producing any list, roster, or index may, at his or her choice, use the valid mailing address or the word “confidential” or some similar designation in place of the residence address.
(c) No action in negligence may be maintained against any government entity or officer or employee thereof as a result of disclosure of the information that is the subject of this section unless by a showing of gross negligence or willfulness.
(d) Subdivisions (a) and (b) shall not apply to any person granted confidentiality upon receipt by the county elections official of a written notice by the address confidentiality program manager of the withdrawal, invalidation, expiration, or termination of the program participant’s certification.
(e) This section shall remain in effect only until January 1, 2005, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2005, deletes or extends that date.

SEC. 2.

 The heading of Chapter 3.1 (commencing with Section 6205) of Division 7 of Title 1 of the Government Code is amended to read:
CHAPTER  3.1. Address Confidentiality for Victims of Domestic Violence and Stalking

SEC. 3.

 Section 6205 of the Government Code is amended to read:

6205.
 The Legislature finds that persons attempting to escape from actual or threatened domestic violence or stalking frequently establish new addresses in order to prevent their assailants or probable assailants from finding them. The purpose of this chapter is to enable state and local agencies to respond to requests for public records without disclosing the location of a victim of domestic violence or stalking, to enable interagency cooperation with the Secretary of State in providing address confidentiality for victims of domestic violence or stalking, and to enable state and local agencies to accept a program participant’s use of an address designated by the Secretary of State as a substitute mailing address.

SEC. 3.5.

 Section 6205 of the Government Code is amended to read:

6205.
 The Legislature finds that persons attempting to escape from actual or threatened domestic violence or stalking frequently establish new names or addresses in order to prevent their assailants or probable assailants from finding them. The purpose of this chapter is to enable state and local agencies to respond to requests for public records without disclosing the changed name or location of a victim of domestic violence or stalking, to enable interagency cooperation with the Secretary of State in providing name and address confidentiality for victims of domestic violence or stalking, and to enable state and local agencies to accept a program participant’s use of an address designated by the Secretary of State as a substitute mailing address.

SEC. 4.

 Section 6205.5 of the Government Code is amended to read:

6205.5.
 Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
(a) “Address” means a residential street address, school address, or work address of an individual, as specified on the individual’s application to be a program participant under this chapter.
(b) “Domestic violence” means an act as defined in Section 6211 of the Family Code.
(c) “Stalking” means an act as defined in Section 646.9 of the Penal Code.
(d) “Program participant” means a person certified as a program participant under Section 6206.

SEC. 5.

 Section 6206 of the Government Code is amended to read:

6206.
 (a) An adult person, a parent or guardian acting on behalf of a minor, or a guardian acting on behalf of an incapacitated person may apply to the Secretary of State to have an address designated by the Secretary of State serve as the person’s address or the address of the minor or incapacitated person. An application shall be completed in person at a community-based victims’ assistance program. The application process shall include a requirement that the applicant shall meet with a victims’ assistance counselor and receive orientation information about the program. The Secretary of State shall approve an application if it is filed in the manner and on the form prescribed by the Secretary of State and if it contains all of the following:
(1) A sworn statement by the applicant that the applicant has good reason to believe both of the following:
(A) That the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence or stalking.
(B) That the applicant fears for his or her safety or his or her children’s safety, or the safety of the minor or incapacitated person on whose behalf the application is made.
(2) If the applicant alleges that the basis for the application is that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of domestic violence, the application may be accompanied by evidence including, but not limited to, any of the following:
(A) Police, court, or other government agency records or files.
(B) Documentation from a domestic violence program if the person is alleged to be a victim of domestic violence.
(C) Documentation from a legal, clerical, medical, or other professional from whom the applicant or person on whose behalf the application is made has sought assistance in dealing with the alleged domestic violence.
(D) Any other evidence that supports the sworn statement, such as a statement from any other individual with knowledge of the circumstances that provides the basis for the claim, or physical evidence of the act or acts of domestic violence.
(3) If the applicant alleges that the basis for the application is that the applicant, or the minor or incapacitated person on whose behalf the application is made, is a victim of stalking, the application shall be accompanied by evidence including, but not limited to, any of the following:
(A) Police, court, or other government agency records or files.
(B) Legal, clerical, medical, or other professional from whom the applicant or person on whose behalf the application is made has sought assistance in dealing with the alleged stalking.
(C) Any other evidence that supports the sworn statement, such as a sworn statement from any other individual with knowledge of the circumstances that provide the basis for the claim, or physical evidence of the act or acts of stalking.
(4) A statement of whether there are any existing court orders involving the applicant for child support, child custody, or child visitation, and whether there are any active court actions involving the applicant for child support, child custody, or child visitation, the name and address of legal counsel of record, and the last known address of the other parent or parents involved in those court orders or court actions.
(5) A designation of the Secretary of State as agent for purposes of service of process and for the purpose of receipt of mail.
(A) Service on the Secretary of State of any summons, writ, notice, demand, or process shall be made by delivering to the address confidentiality program personnel of the Office of the Secretary of State two copies of the summons, writ, notice, demand, or process.
(B) If a summons, writ, notice, demand, or process is served on the Secretary of State, the Secretary of State shall immediately cause a copy to be forwarded to the program participant at the address shown on the records of the address confidentiality program so that the summons, writ, notice, demand, or process is received by the program participant within three days of the Secretary of State’s having received it.
(C) The Secretary of State shall keep a record of all summonses, writs, notices, demands, and processes served upon the Secretary of State under this section and shall record the time of that service and the Secretary of State’s action.
(D) The office of the Secretary of State and any agent or person employed by the Secretary of State shall be held harmless from any liability in any action brought by any person injured or harmed as a result of the handling of first-class mail on behalf of program participants.
(6) The mailing address where the applicant can be contacted by the Secretary of State, and the phone number or numbers where the applicant can be called by the Secretary of State.
(7) The address or addresses that the applicant requests not be disclosed for the reason that disclosure will increase the risk of domestic violence or stalking.
(8) The signature of the applicant and of any individual or representative of any office designated in writing under Section 6208.5 who assisted in the preparation of the application, and the date on which the applicant signed the application.
(b) Applications shall be filed with the office of the Secretary of State.
(c) Upon filing a properly completed application, the Secretary of State shall certify the applicant as a program participant. Applicants shall be certified for four years following the date of filing unless the certification is withdrawn or invalidated before that date. The Secretary of State shall by rule establish a renewal procedure.
(d) Upon certification, in any case where there are court orders or court actions identified in paragraph (4) of subdivision (a) of Section 6206 and there is no other or superseding court order dictating the specific terms of communication between the parties, the Secretary of State shall, within 10 days, notify the other parent or parents of the address designated by the Secretary of State for the program participant and the designation of the Secretary of State as agent for purposes of service of process. The notice shall be given by mail, return receipt requested, postage prepaid, to the last known address of the other parent to be notified. A copy shall also be sent to that parent’s counsel of record.
(e) A person who falsely attests in an application that disclosure of the applicant’s address would endanger the applicant’s safety or the safety of the applicant’s children or the minor or incapacitated person on whose behalf the application is made, or who knowingly provides false or incorrect information upon making an application, is guilty of a misdemeanor. A notice shall be printed in bold type and in a conspicuous location on the face of the application informing the applicant of the penalties under this subdivision.

SEC. 6.

 Section 6206.5 of the Government Code is amended to read:

6206.5.
 (a) The Secretary of State may cancel a program participant’s certification if there is a change in the residential address from the one listed on the application, unless the program participant provides the Secretary of State with at least seven days’ prior notice of the change of address.
(b) The Secretary of State may cancel certification of a program participant if mail forwarded by the secretary to the program participant’s address is returned as nondeliverable.
(c) The Secretary of State shall cancel certification of a program participant who applies using false information.
(d) Any records or documents pertaining to a program participant shall be retained and held confidential for a period of three years after termination of certification and then destroyed.

SEC. 6.5.

 Section 6206.5 of the Government Code is amended to read:

6206.5.
 (a) The Secretary of State may cancel program participant’s certification if there is a change in the residential address from the one listed on the application, unless the program participant provides the Secretary of State with at least seven days’ prior notice of the change of address.
(b) The Secretary of State may cancel a program participant’s certification if the program participant changes his or her name from the one listed in the application and fails to notify the Secretary of State of the name change within seven days of the change.
(c) The Secretary of State may cancel certification of a program participant if mail forwarded by the secretary to the program participant’s address is returned as nondeliverable.
(d) The Secretary of State shall cancel certification of a program participant who applies using false information.
(e) Any records or documents pertaining to a program participant shall be retained and held confidential for a period of three years after termination of certification and then destroyed.

SEC. 7.

 Section 6206.7 of the Government Code is amended to read:

6206.7.
 (a) A program participant may withdraw from program participation by submitting to the address confidentiality program manager written notification of withdrawal and his or her current identification card. Certification shall be terminated on the date of receipt of this notification.
(b) The address confidentiality program manager may terminate a program participant’s certification and invalidate his or her authorization card for any of the following reasons:
(1) The program participant’s certification term has expired and certification renewal has not been completed.
(2) The address confidentiality program manager has determined that false information was used in the application process or that participation in the program is being used as a subterfuge to avoid detection of illegal or criminal activity or apprehension by law enforcement.
(3) The program participant no longer resides at the residential address listed on the application, and has not provided at least seven days’ prior notice in writing of a change in address.
(4) A service of process document or mail forwarded to the program participant by the address confidentiality program manager is returned as nondeliverable.
(5) The program participant obtains a legal name change and fails to notify the Secretary of State within seven days.
(c) If termination is a result of paragraph (1), (3), (4), or (5) of subdivision (b), the address confidentiality program manager shall send written notification of the intended termination to the program participant. The program participant shall have five business days in which to appeal the termination under procedures developed by the Secretary of State.
(d) The address confidentiality program manager shall notify in writing the county elections official and authorized personnel of the appropriate county clerk’s office, county recording office, and department of health of the program participant’s certification withdrawal, invalidation, expiration, or termination.
(e) Upon receipt of this termination notification, authorized personnel shall transmit to the address confidentiality program manager all appropriate administrative records pertaining to the program participant and the record transmitting agency is no longer responsible for maintaining the confidentiality of a terminated program participant’s record.
(f) Following termination of program participant certification as a result of subdivision (b), the address confidentiality program manager may disclose information contained in the participant’s application.

SEC. 8.

 Section 6207 of the Government Code is amended to read:

6207.
 (a) A program participant may request that state and local agencies use the address designated by the Secretary of State as his or her address. When creating a public record, state and local agencies shall accept the address designated by the Secretary of State as a program participant’s substitute address, unless the Secretary of State has determined both of the following:
(1) The agency has a bona fide statutory or administrative requirement for the use of the address which would otherwise be confidential under this chapter.
(2) This address will be used only for those statutory and administrative purposes and shall not be publicly disseminated.
(b) A program participant may request that state and local agencies use the address designated by the Secretary of State as his or her address. When modifying or maintaining a public record, excluding the record of any birth, fetal death, death, or marriage registered under Division 102 (commencing with Section 102100) of the Health and Safety Code, state and local agencies shall accept the address designated by the Secretary of State as a program participant’s substitute address, unless the Secretary of State has determined both of the following:
(1) The agency has a bona fide statutory or administrative requirement for the use of the address which would otherwise be confidential under this chapter.
(2) This address will be used only for those statutory and administrative purposes and shall not be publicly disseminated.
(c) A program participant may use the address designated by the Secretary of State as his or her work address.
(d) The office of the Secretary of State shall forward all first-class mail and all mail sent by a governmental agency to the appropriate program participants. The office of the Secretary of State shall not handle or forward packages regardless of size or type of mailing.
(e) Notwithstanding subdivisions (a) and (b), program participants shall comply with the provisions specified in subdivision (d) of Section 1808.21 of the Vehicle Code if requesting suppression of the records maintained by the Department of Motor Vehicles. Program participants shall also comply with all other provisions of the Vehicle Code relating to providing current address information to the department.

SEC. 9.

 Section 6208.5 of the Government Code is amended to read:

6208.5.
 The Secretary of State shall designate state and local agencies and nonprofit agencies that provide counseling and shelter services to victims of domestic violence or stalking to assist persons applying to be program participants. Any assistance and counseling rendered by the office of the Secretary of State or its designees to applicants shall in no way be construed as legal advice.

SEC. 10.

 Section 6209.5 of the Government Code is repealed.

SEC. 11.

 Section 6209.7 of the Government Code is amended to read:

6209.7.
 (a) Nothing in this chapter, nor participation in this program, affects custody or visitation orders in effect prior to or during program participation. A program participant who falsifies his or her location in order to unlawfully avoid custody or visitation orders is subject to immediate termination from the program and is guilty of a misdemeanor.
(b) Participation in the program does not constitute evidence of domestic violence or stalking for purposes of making custody or visitation orders.

SEC. 12.

 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, notwithstanding Section 17610 of the Government Code, 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. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.

SEC. 13.

 Section 1.5 of this bill incorporates amendments to Section 2166.5 of the Elections Code proposed by both this bill and AB 2214. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2001, (2) each bill amends Section 2166.5 of the Election Code, and (3) this bill is enacted after AB 2214, in which case Section 1 of this bill shall not become operative.

SEC. 14.

 Section 3.5 of this bill incorporates amendments to Section 6205 of the Government Code proposed by both this bill and AB 205. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2001, (2) each bill amends Section 6205 of the Government Code, and (3) this bill is enacted after AB 205, in which case Section 3 of this bill shall not become operative.

SEC. 15.

 Section 6.5 of this bill incorporates amendments to Section 6206.5 of the Government Code proposed by both this bill and AB 205. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2001, (2) each bill amends Section 6206.5 of the Government Code, and (3) this bill is enacted after AB 205, in which case Section 6 of this bill shall not become operative.