PUBLIC INFORMATION — A bill that would have eliminated California reporters’ access to names and addresses of most crime victims failed on a 4-2 vote this morning in the Assembly Committee on Public Safety, reports Melissa Cabral for the online news organization Crime Voice. The bill, up for reconsideration in the committee after failing its first hearing two weeks ago, was opposed by the California Newspaper Publishers Association and by Californians Aware, which called the central arguments supporting the measure a myth and a distortion.


CalAware's final opposition letter, copied to committee members, read:


April 27,  2010

 

Assemblymember
Norma Torres

California State
Assembly

State Capitol

PO Box 942849

Sacramento,  CA 95814

RE: AB 1682 as Amended — OPPOSE

Dear Assemblymember
Torres,

Californians Aware continues to
oppose AB 1682 as amended April 14, which would authorize designated local law
enforcement officials to eliminate any access to the addresses of crime victims
in police and sheriff’s records, which are now available only to those with
sworn declarations asserting a scholarly, journalistic, political or
governmental purpose for such access.

 

Please allow me to
respectfully correct two very misleading impressions you and the Los Angeles
Sheriff’s Department lieutenant created in your testimony before the Assembly
Criminal Justice Committee last week.

 

1. Present Law Does
Not Threaten Victims

You led the committee
to believe that without AB 1682, victims are exposed to intimidation or
retaliation by criminal gang members and other ruthless predators, chilling
them from cooperating with investigations or prosecution, because the
California Public Records Act (CPRA) makes the addresses available to
journalists and researchers for scholarly, governmental or political purposes.

 

This representation is
a myth. Neither you nor the bill's sponsor, Los Angeles County Sheriff Lee
Baca, in the three months since the measure was introduced, have been able to
cite a single instance of such access leading to harm to victims.  This lack of any record of harm should
not be surprising.  It’s not new.

 

From 1982, when the
addresses of victims of crime (other than sexual assault and child abuse) were
first added to the CPRA's disclosure list by legislation directed by Governor
Edmund G. Brown, Jr., until 1995, when that access became restricted to the
currently specified purposes, the general public had an unconditional right to
obtain this information, yet even then it was not exploited by those
threatening or punishing victims. 
In other words, for the first 13 years of wide-open access, the harms
that this bill is said to combat never emerged, and since then access has
become much more controlled by law enforcement.

 

Moreover, felons do
not get victims’ addresses from monitoring the news. No contemporary newspaper
or other journalistic enterprise in the state actually publishes victims' home
addresses. Their access to them is not used for inclusion in a story but
rather:

•
to give the public, by reference to a certain block or other general location,
some sense of which neighborhood the crime occurred in; and/or

•
to allow reporters to reach and interview at least willing victims to clear up
factual gaps in the official account released by law enforcement agencies;
and/or

•
to allow the press and public to connect the factual dots of crime information
in a manner embarrassing to influential personages involved.

It is that access that
the sponsor clearly wants to eliminate, for reasons about which we can only
speculate.

 

2. Not Just Anyone
Can Qualify for Access As a Journalist

In his testimony in
support of the bill, a lieutenant from the Los Angeles Sheriff's Department
argued that restriction of access to journalistic purposes was no longer a
secure barrier against criminals masquerading as reporters since "the
courts have ruled that anyone can be a journalist." 

 

(Parenthetically, this
requires one to imagine a criminal entering a police or sheriff’s office,
identifying himself and the news organization he purportedly works for or
contracts with, signing a paper declaration attesting to his journalistic
purposes, and unavoidably leaving fingerprints in the process.)

 

Contrary to the
lieutenant’s statement, no court has ever been confronted with the
"journalistic purpose" issue in the Public Records Act.  The closest approximation to the issue
is an opinion from the California Court of Appeal deciding who is a "journalist"
entitled to protect confidential sources from court-compelled disclosure under
by the state constitution's "shield law."  That case concluded that an Internet website regularly reporting
news of trade interest in the personal computer market was a "periodical
publication" that qualified as a form of journalism warranting the
constitutional shield. O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (6th Dist.
2003).

 

But that conclusion
would have little or no relevance in a lawsuit brought to challenge a police
department's refusal to provide access to an unknown requester for victim's
addresses.  In any event, what
criminal would step into the public spotlight even more profoundly to bring
such a suit?  And if the notion is
that even without a court order, somehow departments would be compelled—against
their better judgment—to give out the information to any stranger walking in
claiming the journalistic access, that idea is nothing short of ludicrous. These departments are not shy at saying no to
strangers, or even recognized requesters, seeking access to far less sensitive
facts.  It is their reflexive
habit.

 

Our 2007 audit of some
216 local law enforcement agencies throughout the state to measure their
compliance with the basics
of public records law in providing rudimentary information on recent crimes
(not victim information) found most departments falling down on the
fundamentals and concluded:

 

    Many if not most California
policing agencies fail the open government obligations that they share with
other public agencies so radically that it is hard to view them as part of the
same public universe. Those obligations are to know the rudiments of the
California Public Records Act and to treat unfamiliar citizens who request
information with at least the same readiness to provide it as is granted to
journalists, without demanding identity and other disclosures that are neither
sanctioned by the law nor explained by innocent need. In this audit the most
common experience was that the requester was required to provide his or her
identification, purpose and/or affiliation, but then left the department or
office empty-handed, and at best waited one or more weeks to learn whether any
information would be forthcoming at all.

 

I invite you to check
the full details of this audit, and of a follow-up audit conducted several
months later, on our website at https://calaware.org/audits/index.php.  You may note, for example, that among
the supporters of your bill,

•
the president of the California District Attorneys Association holds office in
Napa County, whose sheriff’s office told our auditor that unless he was a crime
victim or otherwise mentioned in a crime report,  his request would have to be approved by vote of the Board
of Supervisors;

•
the president of the California Police Chiefs Association is the Chief of
Police of San Mateo, whose department told our auditor that she could not get
crime information older than seven days, and that to do so she would be
required to submit her driver license number and reason for the request;

•
the first vice president of the California Peace Officers Association is Chief
of the Long Beach Police Department, which told our auditor that in order to
get the crime information she would need to query the secretaries of each
detective department assigned to the crimes being researched, all of whom
happened to have left for the afternoon;

•
the sponsor of the bill is Sheriff Lee Baca of Los Angeles County, whose
Headquarters Bureau in Monterey Park told our auditor—recognized as a
reporter—that her request to see information legally available to the public
about reported burglaries, sexual assaults and armed robberies in the prior two
weeks was not specific enough, and that such information was not kept at
headquarters in any event, referring her to the department’s Discovery Unit
elsewhere (although the department’s website describes the Headquarters Unit as
“responsible for maintaining the Department's operational logs and
disseminating information and news to the general public, members of the
Department and the news media”— http://www.lasd.org/divisions/hqtrs/index.html).

 

The Bill’s
Dangerous Rationale

SB 1682 was introduced
at the urging of Sheriff Baca out of the supposed concern that, to quote a
newspaper account, “gang members and crime syndicates can pose as journalists,
scholars or political operatives, to obtain address information of crime
victims. But he acknowledged that this has never happened, though it is ‘only a
matter of time.’” Obviously, it is “only a matter of time” before any item of public information, or any personal liberty in our democracy, or any civil right we enjoy, is exploited in some
criminal fashion. That is the paradox of freedom tested daily by reported
appalling abuses.

 

Only a society in
which the government alone has access to the facts of what is happening— and
the freedoms to speak and act on those facts—can guarantee that gangs and crime
syndicates need not be feared. But then a government with such a monopoly on
information and expression itself tends to become the ultimate crime syndicate,
as our grandparents learned to their dire cost in their encounters with
totalitarian regimes in the last century.

 

The truism that criminal
exploitation of a freedom “is only a matter of time” is never a rational basis
for responsible legislation abridging that freedom. Regarding AB 1682 in
particular, without specific evidence that the extremely limited degree of
public access in the current law is in fact being exploited as the Sheriff
hypothesizes, the bill is a solution looking for a problem.

 

Please reconsider the
balance of undemonstrated need for this bill against the loss to the public of
the press’s watchdog capability, and withdraw AB 1682 from consideration.

 

 

Sincerely,

 

 

Terry
Francke

General Counsel