BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2011-2012 Regular Session B 2 3 8 AB 2383 (Ammiano) 3 As Amended May 14, 2012 Hearing date: June 12, 2012 Vehicle Code MK:dl VEHICLES: PUBLIC RECORDS: ACCESS BY CERTAIN OFFICIALS HISTORY Source: City and County of San Francisco Prior Legislation: None Support: Unknown Opposition:None known Assembly Floor Vote: Ayes 75 - Noes 0 KEY ISSUE SHOULD THE CITY ATTORNEY OF SAN FRANCISCO BE PERMITTED TO OBTAIN COPIES OF FULL-FACE ENGRAVED PICTURES OR PHOTOGRAPHS OF INDIVIDUALS DIRECTLY FROM THE DEPARTMENT OF MOTOR VEHICLES FOR THE PURPOSES OF PERFORMING FUNCTIONS RELATED TO CITY AND COUNTY OPERATIONS? (More) AB 2383 (Ammiano) Page 2 PURPOSE The purpose of this bill is to allow the City Attorney of San Francisco to obtain copies of full-face engraved pictures or photographs of individuals directly from DMV for the purposes of performing functions related to city and county operations. Existing law provides except where a specific provision of law prohibits the disclosure of records or information or provides for confidentiality, all records of the Department of Motor Vehicles (DMV) relating to the registration of vehicles, other information contained on an application for a driver's license, abstracts of convictions, and abstracts of accident reports required to be sent to DMV in Sacramento, except for abstracts of accidents where, in the opinion of a reporting officer, another individual was at fault, shall be open to public inspection during office hours. All abstracts of accident reports shall be available to law enforcement agencies and courts of competent jurisdiction. (Vehicle Code §1808) Under existing law the residential addresses of certain public employees and their families are confidential. (Vehicle Code § §1808.4 and 1808.6 - began in 1977.) Existing law states that all residence addresses in any record of the DMV are confidential and shall not be disclosed to any person, except a court, law enforcement agency, or other governmental agency, or as authorized in section 1808.22 of the Vehicle Code. (Vehicle Code §§ 1808.21 - added in 1989.) Existing law states that any person may seek suppression of any DMV registration or driver's license record if he or she can show that he or she is the subject of stalking or a threat of death or great bodily injury. The suppression will be for a period of one year renewable for two more one year periods. (Vehicle Code § 1808.21(d).) Existing law provides that the release of such confidential information, for all other persons specified, is a misdemeanor (More) AB 2383 (Ammiano) Page 3 and punishable by a fine of up to $5,000 and/or by up to one year in a county jail. (Vehicle Code § 1808.45.) Existing law provides that a record of DMV containing a confidential home address shall be open to public inspection as provided in Vehicle Code Section 1808 if the address is completely obliterated or otherwise removed from the record. The home address shall be withheld from public inspection for three years following the termination of office or employment except with respect to a retired peace officer, his or her home address shall be withheld from public inspection permanently upon request of confidentiality at the time the information would otherwise be opened. (Vehicle Code §1808.4 (e).) Existing law provides that the Attorney General, district attorneys, law enforcement agencies, city attorneys prosecuting misdemeanors, public defenders and public defender investigators shall have access, including, but not limited to, telephone access, to DMV records. (Vehicle Code § 1810.5) Existing law provides that a license shall bear a full-face engraved picture or photograph of the licensee. The DMV shall not, unless requested by the licensee distribute or sell the licensee's picture or photograph or any information pertaining to the licensee's picture or physical characteristics to any private individual, other than the licensee, or to any firm, co-partnership, association, or corporation. (Vehicle Code § 12800.5) Existing law provides that all DMV records relating to the physical or mental condition of any person, and convictions of any offense involving the use or possession of controlled substance not arising from circumstances involving a motor vehicle, are confidential and not open to public inspection. (Vehicle Code § 1808.5) Existing law provides that the Department of Real Estate, as a department individually, or through its staff, may obtain copies of fullface engraved pictures or photographs of individuals (More) AB 2383 (Ammiano) Page 4 directly form DMV for the purposes of enforcing the Real Estate Law or the Subdivided Lands Law. (Vehicle Code § 1808.51) This bill provides that the city attorney of a city and county and his or her investigators for the purposes of performing functions related to city and county operations may also obtain copies of fullface engraved pictures or photographs of individuals directly from DMV. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA") In response to the unresolved prison capacity crisis, since early 2007 it has been the policy of the chair of the Senate Committee on Public Safety and the Senate President pro Tem to hold legislative proposals which could further aggravate prison overcrowding through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/Overcrowding Crisis Aggravation"), the Committee has held measures which create a new felony, expand the scope or penalty of an existing felony, or otherwise increase the application of a felony in a manner which could exacerbate the prison overcrowding crisis by expanding the availability or length of prison terms (such as extending the statute of limitations for felonies or constricting statutory parole standards). In addition, proposed expansions to the classification of felonies enacted last year by AB 109 (the 2011 Public Safety Realignment) which may be punishable in jail and not prison (Penal Code section 1170(h)) would be subject to ROCA because an offender's criminal record could make the offender ineligible for jail and therefore subject to state prison. Under these principles, ROCA has been applied as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress towards reducing prison overcrowding by passing legislation which could increase the prison population. ROCA will continue until prison overcrowding is resolved. (More) AB 2383 (Ammiano) Page 5 For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation. On June 30, 2005, in a class action lawsuit filed four years earlier, the United States District Court for the Northern District of California established a Receivership to take control of the delivery of medical services to all California state prisoners confined by the California Department of Corrections and Rehabilitation ("CDCR"). In December of 2006, plaintiffs in two federal lawsuits against CDCR sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a three-judge federal panel issued an order requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years. The court stayed implementation of its ruling pending the state's appeal to the U.S. Supreme Court. On May 23, 2011, the United States Supreme Court upheld the decision of the three-judge panel in its entirety, giving California two years from the date of its ruling to reduce its prison population to 137.5 percent of design capacity, subject to the right of the state to seek modifications in appropriate circumstances. Design capacity is the number of inmates a prison can house based on one inmate per cell, single-level bunks in dormitories, and no beds in places not designed for housing. Current design capacity in CDCR's 33 institutions is 79,650. On January 6, 2012, CDCR announced that California had cut prison overcrowding by more than 11,000 inmates over the last six months, a reduction largely accomplished by the passage of Assembly Bill 109. Under the prisoner-reduction order, the inmate population in California's 33 prisons must be no more than the following: 167 percent of design capacity by December 27, 2011 (133,016 inmates); 155 percent by June 27, 2012; 147 percent by December 27, 2012; and (More) AB 2383 (Ammiano) Page 6 137.5 percent by June 27, 2013. This bill does not aggravate the prison overcrowding crisis described above under ROCA. COMMENTS 1. Need for This Bill According to the author: The San Francisco City Attorney's Office had been classified by the DMV to have full access to records at the law enforcement level. This level of access was in effect since 1990 without incident or challenge. The City Attorney's Office operated with this level of access for twenty-one years and strictly complied with all DMV security protocols. In 2011, the DMV reclassified the City Attorney's Office access to an access level limited to address and phone data. Prior to 2011, the San Francisco City Attorney's office utilized DMV records in a number of ways to fulfill their role as legal counsel for all city departments and agencies. The San Francisco City Attorney's Office serves as legal counsel for all city departments and agencies, including those that operate with county functions. In the course of executing duties in its unique role, the City Attorney's Office accesses DMV records to more effectively personally serve parents in child dependency cases as required by state law (see Welfare and Institutions Code sec. 300 et.seq.) for the County Human Services Agency, establish security protocols for threatened employees, and identify individuals in fraud cases. AB 2383 restores the San Francisco City Attorney's access to DMV records. This bill will authorize the San Francisco City Attorney's (More) AB 2383 (Ammiano) Page 7 Office to have the same access to DMB records as the Department of Real Estate. (More) 2. Access to DMV Photos Existing law generally prohibits access to DMV records; however, statute excepts from this prohibition law enforcement officials, which statute identifies as the Attorney General, district attorneys, law enforcement agencies and city attorneys prosecuting misdemeanor violations of state law upon authorization of a district attorney and makes exception for public defenders and public defender investigators. There is also an exemption for the Department of Real Estate to obtain copies of fullface photographs of people from DMV. The San Francisco City Attorney previously had access to DMV files. However, last year, following an internal audit, DMV determined the access, which the city attorney used for purposes other than prosecution of criminal actions, was not appropriate and revoked the city attorney's access. DMV notes that the city attorney can still access DMV records by going through the city's law enforcement agencies. This bill would allow the San Francisco City Attorney to get photographs from DMV. According the background from the author, the San Francisco City Attorney uses DMV photographs in the following circumstances: To serve the legal process for the Human Services Agency. The City Attorney's office often serves parents with notice of dependency hearings, which are often contentious hearings. The DMV license photos are particularly useful in serving parents who may be trying to evade the process. To establish a security protocol for a threatened employee. DMV license photos are heavily relied upon to create an effective DO NOT ADMIT notice to protect the safety of an employee at the workplace while litigators apply for restraining orders. To conduct surveillance on individuals whose activities are under investigation. When investigating an employee or private individuals for wrongdoing of all kinds, the DMV (More) AB 2383 (Ammiano) Page 9 license photos identify the appearance of the person who is not known. Many surveillance assignments pertain to workers compensation fraud and a multitude of personal injury claimants and plaintiffs who falsely claim injury or a degree of injury. Surveillance is the only tool to establish the falsehood of their representation. DMV license photos are critical in performing surveillance in these cases. To investigate facts and allegations pertinent to litigation filed against city and county departments, employees, public officials, and agencies. In this capacity, DMV license photos are used to investigate the conduct and commercial activities of private businesses and individuals in determining whether they have harmed the city and county or broken the laws, and therefore made themselves subject to penalties in litigation or other enforcement proceedings. ***************