By Jim Ewert and Nikki Moore
When Kirk Gibson hit his memorable home run, leading the Dodgers to victory in the first game of the 1988 World Series, legendary Dodger broadcaster Vin Scully said succinctly, “In a year that has been so improbable, the impossible has happened.”
Scully’s summary best describes the achievements of the 2018 California legislative session in two areas of public policy that have frustrated California journalists and open government advocates for decades: improved access to police personnel and investigatory records.
The legislature, however, was not as kind to newspapers on the business side of things, passing sweeping new privacy laws under the threat of a ballot initiative and refusing to correct a Supreme Court decision that jeopardizes the use of independent contractors by all businesses. The legislature also added new laws regulating online political advertising and marijuana ads.
In response to the #MeToo movement, legislators passed new laws that further regulate workplace issues in this area, including expanding requirements for sexual harassment training to businesses with more than five employees, expanding employer obligations to stop harassment, and prohibiting defendants from secretly secretly sexual assault and harassment litigation.
Following is a list of the new laws that staff has identified as having a potential impact on newspapers that will take effect on Jan. 1, 2019, unless otherwise noted.
FREEDOM OF INFORMATION
SB 1421 (Skinner) Police Records
Reversing 40 years of secrecy, SB 1421 grants access to police officer personnel records and the investigations conducted by law enforcement agencies into their employees. The bill requires three categories of disclosure: in cases where a police officer discharges a firearm or causes a person great bodily injury, or when there has been a substantiated charge against an officer of sexual assault or a serious case of dishonesty, like perjury.
The legislation lists records that will be subject to disclosure upon request, and sets forth timing for disclosures. The rules allow an agency to delay access to protect an active investigation and active criminal trial. However, at some point, the agency must disclose responsive records. The bill is retroactive.
AB 748 (Ting) Audio and video footage, Police records
This new law amends California Government Code Section 6254(f) (the investigatory records exemption) to require the disclosure of video or audio footage related to “critical incidents,” defined as an officer’s use of a firearm, or an incident where an individual is seriously injured or dies. The bill will require disclosure of dash camera and body camera footage, along with 911 calls, videos collected by an agency like surveillance footage, and any other audio or video record related to a critical incident. The bill applies retroactively.
The new law presumes the right to access footage after 45 days from the date of the incident, and sets high standards to continue delaying access based on a legitimate investigatory reason to deny access. After one year, the agency can only withhold the record if there is clear and convincing evidence that disclosure would be harmful to an important public interest. The bill has a delayed implementation date, becoming effective July 1, 2019.
SB 1244 (Wieckowski) Public Records Act: attorney fees
This new law changes the term “plaintiff” in the California Public Records Act mandatory fee-shifting provision to “requester.” The new law also declares that nothing in the fee-shifting provision shall be construed to limit a requester’s right to obtain fees and costs pursuant to subdivision (d) or pursuant to any other law. Together, these changes to the CPRA protect requesters who defend the public’s right to know, regardless of the requester’s technical title in litigation.
SB 1087 (Roth) PACE program: program administrators
SB 1087 by Sen. Richard Roth (D-Riverside) overturns a law that became effective Jan. 1, 2018, and which created a bar to disclosure of enforcement orders by the Department of Business Oversight (DBO). The change to the law provides access to public orders when the DBO prohibits a PACE solicitor or agent from continuing to operate in California. It also requires the DBO to post online a list of solicitors and agents in good standing with the state.
AB 2185 (Chui) Civil actions: appointment of guardian ad litem
A new law will permit an individual filing in a guardian ad litem cases to pursue the claim using a pseudonym. The new law comports with the analysis for closing court proceedings established in NBC Subsidiary v. Superior Court to determine whether a plaintiff’s petition for anonymity should be granted.
SB 1036 (Wilk) Local educational agencies: minutes of meetings of governing bodies
A new law prohibits an agency from publishing in the agency’s minutes the home address of an individual who speaks at a school board meeting. The law specifically provides that it will have no effect on the public’s right of access, preserving the right of access to directory information.
AB 2958 (Quirk) State bodies: meetings: teleconference
A new law will allow advisory committees covered by the Bagley-Keene Open Meetings Act to provide shorter notice of specific teleconference meetings. Instead of requiring the location to be identified on the meeting agenda, the new law requires the advisory committee to provide separate notice at least 24 hours before the meeting in which members would be participating remotely. The new standard can only be used when at least a quorum of the members of the advisory committee participate live in a physical location accessible by members of the public and that location would be required to be listed on the agenda. Moreover, agencies will be required to inform members of the public how they can participate in the teleconference via a web site or a call-in number.
SB 978 (Bradford) Law enforcement agencies: public records
A new law requires police agencies to post all of their current standards, policies, practices, operating procedures, and education and training materials that would otherwise be available to the public if a request was made pursuant to the California Public Records Act.
SB 820 (Leyva) Settlement agreements: confidentiality
A new law bans settlement agreements that require an individual to suppress facts about sexual assault, harassment or discrimination. Employers who settle cases will not be able to demand confidentiality from an employee. However, as a protection for an individual who wishes to remain anonymous, a claimant can require confidentiality. This subdivision does not apply if a government agency or public official is a party to the settlement agreement. The measure is effective Jan. 1, 2019, and is only applicable to settlement agreements entered into after that date.
SB 1343 (Mitchell) Employers: sexual harassment training: requirements
This new law reduces the employment threshold for sexual harassment training from 50 employees to five employees, and all employees must required to be trained for at least one hour, two for supervisorial employees, within six months of the employee being hired and once every two years. The bill requires that all employers must provide the sexual harassment training by January 1, 2020, but does not need to be provided again if the sexual harassment training was provided after January 1, 2019, to an employee.
SB 826 (Jackson) Corporations: boards of directors
A new law requires each publicly held corporation whose principal executive offices are located in California to have a minimum number of women on its board of directors. It allows the Secretary of State to review and issue reports regarding corporations’ compliance with the bill’s provisions and to impose fines for violations of the bill. The bill imposes liability as of January 1, 2020.
AB 3109 (Stone) Contracts: waiver of right of petition or free speech
A new law makes a non-disclosure agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. The law becomes effective on January 1, 2019 and applies only to a provision in a contract or settlement agreement entered into on or after that date.
AB 2899 (Rubio) Cannabis: advertisements
A new law prohibits a suspended licensee from publishing or disseminating advertisements or marketing of cannabis and cannabis products while the licensee’s license is suspended.
AB 2188 (Mullin) Political Reform Act of 1974: campaign disclosures: advertisements
Starting in 2020, there will be new duties on “online platforms” that display political advertisements. The law defines “online platform” and requires qualifying platforms to maintain, and make available for online public inspection, a record of any advertisement disseminated on the online platform by a committee that purchased five hundred dollars ($500) or more in advertisements on the online platform during the preceding 12 months.
The online platform is required to retain all of the following: (A) A digital copy of the advertisement; (B) The approximate number of impressions generated from the advertisement and the date and time that the advertisement was first displayed and last displayed; (C) Information regarding the range charged or the total amount spent on the advertisement; (D) The name of the candidate to which the advertisement refers and the office to which the candidate is seeking election or number or letter of the ballot measure and the jurisdiction to which the advertisement refers; (E) The name and identification number of the committee that paid for the advertisement.
AB 375 (Chau) Privacy: personal information: businesses (The California Consumer Privacy Act of 2018)
The CCPA empowers consumers with the right to be informed about what kinds of personal data companies have collected and why it was collected. Among other protections, the law requires that consumers have the right to request from a business what data the business collects about them, request the deletion of that personal information, opt out of the sale of that personal information, and access the personal information in a “readily useable format” that enables its transfer to third parties without hindrance.
The law establishes a broad definition of “personal information,” drawing in categories of data including a consumer’s personal identifiers, geolocation, biometric data, internet browsing history, psychometric data, and inferences a company might make about the consumer. The protections over this data are to be enforced by the Attorney General, though consumers maintain a private right of action should companies fail to maintain reasonable security practices, resulting in unauthorized access to the personal data.
SB 1100 (Dodd) Amended California Consumer Privacy Act of 2018
In response to several defects identified in the recently enacted California Consumer Privacy Act (CCPA) the law has be amended to clarify that there is an exemption for news gathering activities of a newspaper or broadcaster.
The measure removes the requirement that a consumer bringing an action pursuant to the Act must first notify the Attorney General. It would also remove certain duties placed upon the Attorney General.
The bill also extends the date by which the Attorney General is required to adopt regulations from January 1, 2020, to July 1, 2020 and restrict the AG from bringing an enforcement action until six months after publication of final regulations or July 1, 2020, whichever is sooner.
It will go into effect on Jan. 1 2020.