BILL ANALYSIS Ó AB 1154 Page 1 Date of Hearing: April 21, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 1154 (Gray) - As Introduced February 27, 2015 SUBJECT: THE CALIFORNIA PUBLIC RECORDS ACT: APPLICATIONS FOR LICENSES AND LICENSES TO CARRY CONCEALED FIREARMS KEY ISSUE: SHOULD THE HOME ADDRESSES AND TELEPHONE NUMBERS OF ALL APPLICANTS AND LICENSEES FOR LICENSES TO CARRY CONCEALED WEAPONS (CCW), RATHER THAN JUST CERTAIN PUBLIC OFFICIALS, BE EXEMPT FROM PUBLIC DISCLOSURE IN RESPONSE TO A REQUEST FOR PUBLIC RECORDS MADE PURSUANT TO THE CALIFORNIA PUBLIC RECORDS ACT, DESPITE THE FACT THAT INFORMATION ABOUT APPLICANTS AND LICENSEES IS PRESUMED TO BE PUBLIC? SYNOPSIS Under this bill, co-sponsored by two gun rights organizations, the National Rifle Association (NRA) and the California Rifle and Pistol Association, the home addresses, and telephone numbers of those who apply for a license, as well as those who are granted a license, to carry a concealed firearm (CCW) would no longer be open to public scrutiny. (The names of CCW licensees and applicants, including those of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates are subject to public disclosure under current law, which this bill does not seek to change for either those officials, or for all CCW licensees and applicants.) The author and supporters, including law enforcement organizations AB 1154 Page 2 including the California Police Chiefs Association and the California State Sheriffs Association, argue that the bill is justified by preventing the risk of harm to CCW licensees and applicants. They cite a recent incident in which a New York paper published the names of licensed CCW licensees, saying "such action place lawful concealed carry holders at risk to criminals who may target their home to steal firearms." Opponents, the California Newspaper Publishers and the California Broadcasters Association point out that there are many reasons why information about CCW licensees is helpful to the media, public, and researchers, including to ensure that government officials are abiding by the law and not favoring friends and contributors when granting or denying CCW applications. They assert that AB 1154 provides only a highly speculative benefit to CCW applicants and licensees while significantly impairing public oversight of a key agency of government. SUMMARY: Exempts certain information contained in applications and licenses to carry concealed weapons from public records laws. Specifically, this bill exempts from the California Public Records Act the home addresses and telephone numbers of licensees and applicants set forth in documents regarding licenses to carry firearms. EXISTING LAW: 1)It is a crime for a person to carry a firearm concealed on his person or in his vehicle without a permit. (Penal Code Section 25400.) 2)Authorizes a county sheriff or a city police chief to issue a permit to carry a concealed weapon (CCW) to a county or city resident if the person is of good moral character, there is good cause for the issuance, and the applicant has completed a firearm safety course. (Penal Code Sections 26150, 26155, 26170, and 26215.) AB 1154 Page 3 3)Requires a record of the CCW to be maintained in the office of the issuing authority and with the Department of Justice. (Penal Code Sections 26220 and 26220.) 4)Requires applications for CCWs to include name, occupation, residence and business address, the licensee's age, height, weight, color of eyes and hair, and the reason for desiring a CCW, as well as a description of the weapon for which the permit is sought. (Penal Code Section 26175.) 5)Provides pursuant to the California Public Records Act that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt. (Government Code Sections 6250 et seq. All further statutory references are to the Government Code, unless otherwise indicated.) 6)Defines "public records" to include any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. (Section 6252(e).) The records of weapons permit holders maintained by the sheriff are public records. (62 Ops. Cal. Atty. Gen. 402.) 7)Information in license applications which indicates when or where applicants are vulnerable to attack or concerns applicants' medical or psychological histories or family members is exempt from disclosure under the California's Public Records Act. (Section 6254(u)(1).) 8)The home address and telephone number of prosecutors, public AB 1154 Page 4 defenders, peace officers, judges, court commissioners, and magistrates that are set forth in applications for licenses or in licenses to carry firearms are specifically exempt from disclosure under the California Public Records Act. (Section 6254(u)(2)and (3).) FISCAL EFFECT: As currently in print this bill is keyed fiscal. COMMENTS: The author states the reason for the bill as follows: When it comes to concealed carry permits, an individual must apply for the permit with his/her County Sheriff or local police department. While individuals must comply with all firearm laws when apply for the permit, including a background check and the 10 day waiting period, their application information, including home address and phone number, is public record unless they are a judge, peace officer, district attorney, public defender, or other protected public official. This discrepancy creates significant privacy concerns for law abiding concealed carry permit holders who are put at risk of being targeted by criminals for home invasion and gun theft. Crime victims who may choose to own a firearm for the purpose of safety and protection also risk having their private information obtained or disseminated making it easier for an offender to locate them to inflict further harm. AB 1154 would protect the homes addresses and phone numbers of permit holders without restricting access to law enforcement, courts, district attorneys, and public defenders. The bill would extend the same protections that public officials receive to all concealed carry permit holders. This issue is especially pertinent given a recent case in AB 1154 Page 5 New York where a newspaper published the names and addresses of 44,000 gun permit holders in the form of an interactive online map. The public availability of this information caused significant safety and privacy concerns. California's concealed carry permit holders are currently exposed to the same risk. AB 1154 strikes a balance between government transparency and personal privacy. It ensures the issuance of concealed carry permits can be monitored by citizens and stakeholders without providing a one-stop-shop for offenders to collect sensitive location and contact data. This bill is co-sponsored by two gun rights organizations, the National Rifle Association (NRA) and the California Rifle and Pistol Association. In support of the bill, the NRA states: An individual exercising his or her Second Amendment rights should not be put at risk of being a victim of gun theft by the public exposure of their private information and enactment of this concealed handgun license holders [sic.] protection legislation would prevent such abuse. The privacy of carry permit holders in 43 states is now protected by laws similar to AB 1154. The California State Sheriffs Association, representing sheriffs who are authorized to issue (or deny) CCWs, supports the bill "if amended" to remove paragraph four of subdivision (u) of Section 6254, providing that "This section shall not be construed as prohibiting the disclosure of public records relating to the reason an application for a license to carry a firearm pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code was granted or denied." However, given that records of weapon permit holders maintained by the sheriff are public records (62 Ops. Cal. Atty. Gen. 402), such an amendment seems inconsistent with existing law. "While some of the holders of AB 1154 Page 6 concealed weapon licenses may prefer anonymity, it is doubtful that such preferences outweigh the "fundamental and necessary" right of the public to examine the bases upon which such licenses are issued. It is a privilege to carry a concealed weapon." (CBS, Inc. v. Block (1986) 42 Cal.3d 646, 654.) Current Law Empowers Specified Law Enforcement Officials To Make Decisions Regarding The Issuance of Concealed Weapons Permits, Which Are Treated As Public Records Similar To Other Governmental Licenses. It is a crime for a person to carry a firearm concealed on his person or in his vehicle without a permit. (Penal Code Section 25400.) A small number of local government officials (county sheriffs and city police chiefs) are the only officials authorized to issue a permit to carry a concealed weapon. (Penal Code Sections 26150, 26155, 26170, and 26215.) This decision involves the exercise of official discretion involving a determination of whether the person is of good moral character and there is good cause for the issuance of the license. The county sheriff and police chiefs have "extremely broad discretion concerning the issuance of concealed weapons licenses." (Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801, 805.) The issuing official is required to maintain a record of these applications and licenses, and records regarding these official actions are considered public records like other decisions to grant or deny a governmental permit. This Bill Would Exempt CCW Records From Public Disclosure. Under this bill, the home addresses, and telephone numbers of those who apply for a license, as well as those granted a license, to carry a concealed firearm would no longer be open to public scrutiny. (The names of CCW licensees and applicants, including those of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates are subject to public disclosure under current law, which this bill does not seek to change for either those officials, or for all CCW licensees and applicants.) It would therefore no longer be AB 1154 Page 7 known how the local officials entrusted with licensing authority have exercised this responsibility, including whether the volume of permits issued was unusually high or low, or how applicants fared in their efforts to obtain a license. This information may be important because applicants may only apply in the county in which they live, the authority to grant permits is tightly restricted to a few officials, and because the discretion of these government officials is so broad. The Principle of The Public Records Act That Governmental Transparency Is Fundamental To Democracy. Our democratic process relies on the notion that government should be accountable for its actions. "In order to verify accountability, individuals must have access to government files. Such access permits checks against the arbitrary exercise of official power and secrecy in the political process." (CBS, Inc. v. Block, supra, at. p. 651.) Enacted in 1968, the Public Records Act was an attempt to minimize the secrecy in government. It was passed for the explicit purpose of "increasing freedom of information by giving the public access to information in possession of public agencies." (Ibid.) The issues raised by this bill were addressed by the California Supreme Court more than 25 years ago in CBS, Inc. v. Block. In that case, the Los Angeles County Sheriff refused to provide information regarding concealed weapons permits to CBS, which had requested the records in connection with an investigation of possible abuses. At that time, the Orange County Sheriff had issued over 400 licenses, while only 35 licenses had been issued in Los Angeles County. (CBS, Inc. v. Block, supra, at. p. 654.) The Court determined that "while some of the holders of concealed weapon licenses may prefer anonymity, it is doubtful that such preferences outweigh the 'fundamental and necessary' right of the public to examine the bases upon which such licenses are issued." (Ibid.) Without the information contained in those applications and licenses, the Court found AB 1154 Page 8 that there was "no method by which the people can ever ascertain whether the law is being fairly and impartially applied." (Ibid.) Might This Bill Inadvertently Prevent Public Oversight Of Public Officials Who Wrongly Deny Concealed Weapons License Applications? As the Block case demonstrates, transparency in official decision making may deter or reveal inappropriate or questionable denial of concealed weapons permits. It is worth noting that home address information about CCW licensees and applicants can be crucial to holding government officials accountable for their actions. For example, a sheriff of a county may only issue a CCW to an applicant who is "a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business." (Penal Code Section 26150 (a).) Without the information about where a CCW holder or applicant lives, the public cannot determine whether the CCW was lawfully issued. On this point, the California Newspaper Publishers Association argues as follows: An example of the importance of this information as a check on potential abuse by officials can be found in the case of former Orange County Sheriff, Brad Gates. In the late 1980's, Gates was accused of improperly issuing concealed weapons permits to his cronies and political supporters. The sheriff's own records showed he issued 101 permits to members of the Balboa Bay Club, the Lincoln Club and various other supporters all of whom were contributors to his political campaigns. Gates, however, also denied permits to those he considered unfriendly even though the AB 1154 Page 9 stated reasons for the permits by the unfriendly applicants were the same as those given by his campaign contributors. Gates ultimately lost a civil rights suit filed against him by two private investigators who challenged Gates denial of their concealed weapon application seven times. The taxpayers of Orange County ended up footing the bill to pay the federal jury's award to the investigators and the legal costs to defend Gates. By exempting from public access the very same information that revealed the widespread abuse of authority that occurred in Orange County, AB 1154 would not only embolden corruption but it would also serve to protect dishonest officials from public scrutiny by eliminating one of the only tools to ferret out misconduct. The California Broadcasters Association adds succinctly, "This data is currently public for a legitimate reason: oversight of those we have entrusted with the authority to issue these highly-prized documents. The permits are often not easy to acquire as they empower the holder with rights others do not have. This value can be, and has been a corruptive influence." These concerns are not merely theoretical; they have recently been the subject of media reports regarding controversies that the Sheriffs of Los Angeles, Monterey and Stanislaus counties have made decisions about gun permit applications on the basis of political or other considerations that may be inappropriate, according to critics. (See Sheriff Lee Baca and the Gun-Gift Connection, LA Weekly, Feb, 14, 2013 (available at http://www.laweekly.com/2013-02-14/news/sheriff-lee-baca-conceale d-weapons-permit/full/); Scrutiny For Gun Permits Gets Tighter, San Jose Mercury News, Feb 25, 2102 (available at http://www.mercurynews.com AB 1154 Page 10 /breaking-news/ci_20033908); Hard To Know If Stanislaus County Sheriff Oks More Concealed Weapon Permits, Modesto Bee, May 24, 2010 (available at http://www.modbee.com /2010/05/24/1179400/ hard-to-know-if-stanislaus-county.html#storylink=cpy).) The Committee may wish to consider whether exempting information about the home addresses and telephone numbers of CCW licensees from disclosure to the public in response to a request for records pursuant to the PRA will interfere with the right of Californians to ascertain if their government is functioning properly. As is clear from the examples above, individuals and organizations use the information that AB 1154 would exempt from disclosure to determine if agencies that issue licenses to carry handguns are violating the people's Constitutional right to Equal Protection under the law. Furthermore, there is a substantial body of evidence that CCW licensees may pose a risk to public safety because, all too often, these private citizens use their concealed handguns to take lives, not to save them. Concealed Carry Killers is a resource maintained by the Violence Policy Center which includes hundreds of examples of non-self-defense killings by private citizens with permits to carry concealed weapons, including homicides, suicides, mass shootings, murder-suicides, lethal attacks on law enforcement, and unintentional deaths. ( http://concealed carrykillers.org/) The public nature of CCW information, including information about the home addresses where CCW licensees live, is helpful to the public as a warning that the home may be dangerous. Likewise, the public nature of CCW information is helpful to reporters and researchers investigating trends in crime and connections between CCW licensure and gun violence. According to the Reporters' Committee for Freedom of the Press, such information allowed Mark Alesia, a reporter with The Indianapolis Star, to compare information about CCW licensees AB 1154 Page 11 with crime data in two Indiana counties. (See more at: http://www.rcfp.org/browse-media-law-resources/news-media-law/new s-media-and-law-winter-2013/reporting-gun-permit-data# sthash.VPWWmgQk.dpuf ) Localized research (i.e. figuring out whether county crime rates correlate with CCW issuance rates) is not possible if the public does not have information about where CCW licensees live. Is There Evidence Of Harm To Outweigh The Public Interests In Transparency, Oversight, And Warning? The author and supporters argue that the bill is justified by preventing the risk of harm to CCW licensees and applicants. For example, the San Bernardino County Sheriff-Coroner states: In recent years, a New York paper published the names of licensed CCW holders. Such action place lawful concealed carry holders at risk to criminals who may target their home to steal firearms. An individual exercising his or her Second Amendment rights should not be put at risk of being a victim of gun theft by the public exposure of their private information, and enactment of this concealed handgun license holders [sic.] protection legislation would prevent such abuse." It should be noted, as explained above, that this bill does not attempt to shield the names of CCW licensees or applicants. But to what extent does the public nature of information about the home addresses of CCW licensees and applicants endanger the safety of gun owners and their property, as the author and supporters assert? The author and supporters all cite one incident in New York in which a New York newspaper posted an interactive map showing the homes of CCW licensees on its website. The author states that he believes the posting of that map directly led to the burglary of the home of one CCW holder. As evidence, the author cites this report: http://www.theblaze.com/stories/2013/01/13/house-identified-on-ny AB 1154 Page 12 -papers-gun-map-burglarized -and-the-robbers-went-straight-for-the-guns/ However, mere correlation between one burglary and one CCW holder does not equate to proof of causation of even that particular burglary, let alone burglaries in general. It would be more helpful to know whether there was a statistically significant increase in the rate of residential burglaries of the homes of the CCW licensees whose addresses were publically disclosed on the newspaper's website. Such a study would certainly be possible, unless the information about the home addresses of CCW licensees were no longer public, as proposed by this bill. However, no such statistical data appears to be available, or at least has not been produced by the author in support of this proposal. Nevertheless, despite the absence of any data showing a link between crime and public access to the home addresses of CCW licensees and applicants, the author and supporters of this bill assert that it is important to prevent an incident like the one in New York from ever happening in California. According to the author, "this bill would serve as a prophylactic in preventing an incident such as occurred in New York." What danger, exactly, is this bill trying to protect against: a media organization posting CCW information on its website, or criminals using home address information about CCW licensees and applicants to target those homes? Regarding the first perceived danger --of a media outlet posting CCW information online--it apparently happened only once, in the State of New York, and lasted for a brief period, after which the newspaper removed the information because of a backlash from the public. ( http://www.cnn. com/2012/12/25/us/new-york-gun-permit-map/ ) While it is true that something like this could theoretically happen in California, there is no evidence that it has happened or will happen here. If anything, the reaction in New York will have a chilling effect on other media organizations making similar disclosures in the future. AB 1154 Page 13 On the other hand, if the perceived danger is that information about the names and home addresses of CCW licensees and applicants which is now open to the public in California and has been public for years, it may make sense to ascertain whether there is any evidence that criminals have made public records act requests for concealed weapons license licensees, or whether the license licensees have consequently been subject to greater harm than non-license holders. The author has presented no such data to the Committee. In response to a similar contention in the Block case, the court dismissed as "conjectural at best," the assertion by the sheriff that releasing this information would allow would-be attackers to more carefully plan their crime against licensees and would deter those who need a license from making an application. "The prospect that somehow this information in the hands of the press will increase the danger to some licensees cannot alone support a finding in favor of non-disclosure as to all. A mere assertion of possible endangerment does not "clearly outweigh" the public interest in access to these records." (42 Cal.3d 646, 652.) As the California Newspaper Publishers observe, "AB 1154 provides only a highly speculative benefit to CCW applicants and licensees while significantly impairing public oversight of a key agency of government." REGISTERED SUPPORT / OPPOSITION: Support California Rifle and Pistol Association (co-sponsor) AB 1154 Page 14 National Rifle Association (co-sponsor) California Peace Officers Association California Police Chiefs Association California State Sheriffs Association (if amended) Crime Victims United of California San Bernardino County Sheriff John McMahon Opposition California Broadcasters Association California Newspaper Publishers Association Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334 AB 1154 Page 15