Judges: BILL LOCKYER, Attorney General
Filed Date: 5/19/2006
Status: Precedential
Modified Date: 7/5/2016
BILL LOCKYER Attorney General SUSAN DUNCAN LEE Deputy Attorney General
THE HONORABLE JAY LA SUER, MEMBER OF THE STATE ASSEMBLY, has requested an opinion on the following questions:
1. With respect to a request for the address of an individual arrested by a law enforcement agency, where the requester declares under penalty of perjury that the request is made for a journalistic purpose, may the agency require that the requester present subscriber lists, distribution lists, copies of past publications, or proof of membership in a press trade association; display a press identification permit issued by a California law enforcement agency; or qualify as a journalist in a judicial action?
2. Does the requirement that address information not be used directly or indirectly, or furnished to another, to sell a product or service, require the requester to monitor subscribers or readers and prohibit them from using the information for commercial purposes?
2. The requirement that address information not be used directly or indirectly, or furnished to another, to sell a product or service does not require the requester to monitor subscribers or readers and prohibit them from using the information for commercial purposes.
The Act provides that "every person has a right to inspect any public record, except as hereafter provided." (§
"Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, and any state or local police agency, or any investigatory or security files 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, except that state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident. . . .
". . . . . . . . . . . . . . . . . . . . . . . . . .
"Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.
"Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
"(1) The full name and occupation of every individual arrested by the agency, the individual's physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
"(2) Subject to the restrictions imposed by Section
841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. . . ."(3) Subject to the restrictions of Section
841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator. . . . Address information obtained pursuant to this paragraph may not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. Nothing in this paragraph shall be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph."2
Accordingly, in lieu of granting public access to criminal investigative files, the Act requires law enforcement agencies to disclose specified information derived from these files, generally including information about arrests, arrestees, witnesses, and crime victims.
The particular statutory provision at issue here is section
1. Verification of Journalistic Purpose
The first question to be resolved is whether a law enforcement agency may require certain forms of evidence to support a requester's declaration that his or her request is made for journalistic purposes. We conclude that an agency may not require such evidence in support of a declaration.
As a preliminary matter, we note that the forms of evidence suggested by the question appear to focus primarily on commercial news media. It is doubtful, however, that the field of journalism may be so limited. For example, courts have recently pointed out the widespread use of the Internet for the dissemination of information to the public. (See In re Stevens (2004)
Looking, then, at the language of section
Moreover, in construing the Act's provisions, we are constrained by the following mandate of article
"(b)(1) The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to scrutiny.
"A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. . . ."
Since subdivision (f)(3) of section
Bearing these rules in mind, we observe that section
A review of the legislative history of section
Subdivision (f)(3) was thereafter amended in 2004 (Stats. 2004, ch. 937, § 2) in response to reports that "some individuals are obtaining address records for an ostensibly legitimate purpose and then sharing it with other individuals (for money or other consideration) who then use it for marketing purposes." (Sen. Judiciary Com., Com. on Assem. Bill No. 1933 (2003-2004 Reg. Sess.) as amended June 22, 2004, pp. 2-3.) Significantly, however, the requirement of a sworn declaration was not changed. "`[F]ailure to make changes in a given statute in a particular respect when the subject is before the Legislature, and changes are made in other respects, is indicative of an intention to leave the law unchanged in that respect.'" (Bishop v. City ofSan Jose (1969)
Finally, we note that subdivision (f) of section
In answer to the first question, we conclude that, with respect to a request for the address of an individual arrested by a law enforcement agency, where the requester declares under penalty of perjury that the request is made for a journalistic purpose, the agency may not require that the requester present subscriber lists, distribution lists, copies of past publications, or proof of membership in a press trade association; display a press identification permit issued by a California law enforcement agency; or qualify as a journalist in a judicial action.
2. Monitoring Commercial Purposes
The second question to be resolved is whether a requester who obtains address information for a journalistic purpose is required to monitor subscribers or readers and prohibit them from using the information for commercial purposes. It has been suggested that, absent a duty to monitor, the statute would fail to achieve its objective: would-be commercial users could circumvent the rule simply by waiting for a qualified person to obtain and publish the address information and then use the published information to make solicitations. Supporting this argument is a rule of statutory construction stating that the Legislature is presumed not to engage in idle acts. (See Civ. Code, §
Again, however, we note that in construing a statute, our primary purpose is to ascertain and effectuate the legislative intent. (Hassan v. Mercy American River Hospital, supra,
31 Cal.4th at p. 715; People v. Gardeley, supra, 14 Cal.4th at p. 621.) "`Where the words of a statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.'" (Inre Jennings (2004)
Here, the last sentence of subdivision (f)(3) of section
To the extent that there is any ambiguity whether journalistic "use" of information is intended to include publication, the legislative history demonstrates that it is. The last sentence of subdivision (f)(3) was added to the statute in 2004. (Stats. 2004, ch. 228, § 2.) A Senate Judiciary Committee report on the proposed amendment stated in part:
"The bill currently provides that the prohibition on marketing does not extend to journalistic products or services. This language was requested by representatives of news organizations, who were concerned that as media outlets who sell products containing the information in question, they would be covered by the bill's prohibition on furnishing information to another. For example, many newspapers publish community crime logs which are obtained through public request. By selling a paper containing address information, they might be construed to be `furnishing' the information to sell a product (their newspaper). The author agreed to their requested exemption." (Sen. Judiciary Com., Com. on Assem. Bill No. 1933 (2003-2004 Reg. Sess.) as amended June 22, 2004, pp. 3-4.)
The bill was later amended to expand the exemption to scholarly, political, and governmental uses. (Assem. Com. on Governmental Organization, analysis of Assem. Bill No. 1933 (2003-2004 Reg. Sess.), as amended Aug. 11, 2004, p. 1 ["Clarifies that this prohibition on furnishing addresses to another shall not be construed to apply to the existing exceptions to the rule which are for scholarly, journalistic, political, or governmental use"].)
We recognize that allowing address information to be published for journalistic purposes leaves open the possibility of commercial solicitation by subsequent users who are unrelated to the journalistic requester. That possibility, however, does not negate the statute's purpose of protecting a person's privacy. The statute as it stands substantially protects privacy interests by limiting the initial distribution of address information to those who do not intend to use it directly or indirectly for commercial purposes. The statute permits that limitation to be enforced by prosecution for perjury. It is not fatal to the statute that these means do not entirely foreclose the possibility of an invasion of someone's privacy. The Legislature may rationally "enact reform measures `one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.' [Citation.]" (Brown v. SuperiorCourt (1971)
Furthermore, we are required to construe statutes to avoid possible constitutional infirmities. (United States v. SecurityIndustrial Bank (1982)
The tension between freedom of speech and the right of privacy is readily apparent in cases where the government seeks to hold a journalist liable, either civilly or criminally, for publishing information that is true and that is a matter of public record, but that causes embarrassment or pain to the individual subject. (See Cox Broadcasting Corp. v. Cohn (1975)
We note that subdivision (f)(3) of section
Finally, we believe that the Legislature did not intend such a result. As previously indicated, subdivision (f)(3) was amended in 2004, well after the United States Supreme Court's decision inUnited Reporting, and the Legislature made no attempt to amend the statute to curtail subsequent uses of address information. In amending legislation, the Legislature is presumed to know of existing judicial decisions and to act in light of them. (Estateof Banerjee (1978)
Accordingly, we conclude in answer to the second question that the requirement that address information not be used directly or indirectly, or furnished to another, to sell a product or service does not require the requester to monitor subscribers or readers and prohibit them from using the information for commercial purposes.
Clement v. California Department of Corrections , 364 F.3d 1148 ( 2004 )
Mark v. Shoen v. Leonard Samuel Shoen, Edward J. Shoen v. ... , 5 F.3d 1289 ( 1993 )
Burden v. Snowden , 2 Cal. 4th 556 ( 1992 )
Stafford v. Realty Bond Service Corp. , 39 Cal. 2d 797 ( 1952 )
Robert F. Kennedy Medical Center v. Belshe , 13 Cal. 4th 748 ( 1996 )
Delaney v. Superior Court , 50 Cal. 3d 785 ( 1990 )
Myers v. Philip Morris Companies, Inc. , 123 Cal. Rptr. 2d 40 ( 2002 )
Estate of Banerjee , 21 Cal. 3d 527 ( 1978 )
Esberg v. Union Oil Co. , 121 Cal. Rptr. 2d 203 ( 2002 )
Estate of McDill , 14 Cal. 3d 831 ( 1975 )
Smith v. Daily Mail Publishing Co. , 99 S. Ct. 2667 ( 1979 )
Cox Broadcasting Corp. v. Cohn , 95 S. Ct. 1029 ( 1975 )
Florida Star v. B. J. F. , 109 S. Ct. 2603 ( 1989 )
Los Angeles Police Department v. United Reporting ... , 120 S. Ct. 483 ( 2000 )