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AB-409 Crimes: public records: disclosure of information.(2021-2022)

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Date Published: 04/08/2021 09:00 PM
AB409:v98#DOCUMENT

Amended  IN  Assembly  April 08, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 409

Introduced by Assembly Member Seyarto
(Coauthors: Assembly Members Cunningham and Lackey)

February 03, 2021

An act to add Section 186.37 to the Penal Code, relating to crimes.


LEGISLATIVE COUNSEL'S DIGEST


AB 409, as amended, Seyarto. Crimes: public records: disclosure of information.
The California Public Records Act requires state and local agencies to make public records available for inspection by the public, subject to specified criteria and with specified exceptions. Existing law exempts from disclosure any investigatory or security file 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. Existing law requires, however, that state and local law enforcement agencies make public specified information, including names of victims, relating to the circumstances surrounding all complaints or requests for assistance, among other things, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in the investigation. Existing law allows victims of specified crimes to request that their names be withheld from any public records request, and upon that request prohibits law enforcement agencies from disclosing those names except under specified circumstances. Existing law additionally prohibits law enforcement agencies from disclosing the addresses of victims of specified crimes.
This bill would require law enforcement to inform a victim or witness of certain gang-related offenses that their name will be disclosed unless a law enforcement agency determines disclosure would endanger their safety, and that they may provide evidence to the law enforcement agency that disclosure of the person’s name would endanger the person’s safety, and would authorize a law enforcement agency to consider that when making the determination. By imposing new duties on law enforcement agencies, the bill would impose a state-mandated local program.
Existing constitutional provisions require 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.
This bill would make legislative findings to that effect.
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, if the Commission on State Mandates determines that the bill contains costs 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   Local Program: YES  

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


SECTION 1.

 Section 186.37 is added to the Penal Code, to read:

186.37.
 (a) An employee of a law enforcement agency who personally receives a report alleging the commission of an offense defined in subdivision (a) or (d) of Section 186.22, shall inform the victim and any witnesses of the following:
(1) That the victim’s or witness’s name will become a matter of public record unless the law enforcement agency determines that release of the victim’s or witness’s name would endanger the victim’s or witness’s safety pursuant to subdivision (f) of Section 6254 of the Government Code.
(2) The victim or witness may provide the agency with evidence that an articulable threat exists that supports a conclusion that the disclosure of their name would endanger their safety.
(b) A written report of an offense defined in subdivision (a) or (d) of Section 186.22 shall indicate the alleged victim and any witnesses have been properly informed pursuant to informed of the information in paragraphs (1) and (2) of subdivision (a), and shall memorialize their responses.
(c) If a victim or witness provides evidence pursuant to described in paragraph (2) of subdivision (a), the agency shall consider this evidence in making its determination, pursuant to subdivision (f) of Section 6254 of the Government Code, of whether that disclosure of the victim’s or witness’s name would endanger the safety of the victim or witness.
(d) Except as provided in subdivision (e), a law enforcement agency shall not disclose to a person, except disclose the name of a person alleged to be a victim of or witness to an offense described in subdivision (a) or (d) of Section 186.22 only to the prosecutor, parole officers of the Department of Corrections and Rehabilitation, hearing officers of the parole authority, probation officers of county probation departments, or other persons or public agencies where authorized or required by law, the name of a person who alleges to be the victim of, or who is reported as a witness to, an offense described in subdivision (a) or (d) of Section 186.22 including, but not limited to, Section 1054.1, when the law enforcement agency has determined, pursuant to subdivision (f) of Section 6254 of the Government Code, that disclosure of the victim’s or witness’s name would endanger the victim or witness.
(e) Parole officers of the Department of Corrections and Rehabilitation, hearing officers of the parole authority, and probation officers of county probation departments shall be entitled to receive information pursuant to subdivision (d) only if the person to whom the information pertains alleges that they are the victim of, or the person is reported as a witness to, an offense described in subdivision (a) or (d) of Section 186.22, if the alleged perpetrator of which is a parolee who is alleged to have committed the offense while on parole, or in the case of a county probation officer, the person who is alleged to have committed the offense is a probationer, is otherwise subject to supervision or the jurisdiction of a county probation department, or is under investigation by a county probation department.

SEC. 2.

  The Legislature finds and declares that Section 1 of this act, which adds Section 186.37 to the Penal Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect the safety of certain victims of, and witnesses to, crimes, including specified gang-related offenses, it is necessary to permit those victims and witnesses to provide evidence that an articulable threat exists that supports a conclusion that the disclosure of their name would endanger their safety.

SEC. 3.

  If the Commission on State Mandates determines that this act contains 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.