Alabama 2022 Regular Session

Alabama Senate Bill SB202 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 SB202
2	2	2 215940-1
3	3	3 By Senator Orr
4	4	4 RFD: Judiciary
5	5	5 First Read: 09-FEB-22
6	6
7	7	Page 0 1 215940-1:n:01/12/2022:LK/tgw LSA2021-2448
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9	9	3
10	10	4
11	11	5
12	12	6
13	13	7
14	14	8 SYNOPSIS: Under existing law, law enforcement
15	15	9 investigative reports and related investigative
16	16	10 materials are privileged communications excepted
17	17	11 from disclosure as public records.
18	18	12 This bill would allow for public access to
19	19	13 law enforcement investigative reports and related
20	20	14 investigative material created before a criminal
21	21	15 investigation begins, or to reports and related
22	22	16 material relating to an investigation into a
23	23	17 criminal matter that is no longer pending.
24	24	18 This bill would also allow for public access
25	25	19 to law enforcement investigative reports and
26	26	20 related investigative materials created by third
27	27	21 parties, disclosed during criminal discovery,
28	28	22 introduced as evidence in criminal or civil
29	29	23 proceedings, or disclosed to third parties, except
30	30	24 when the next of kin or parents of a victim
31	31	25 petition a court to keep audio or visual images of
32	32	26 the incident sealed.
33	33	Page 1 1 Amendment 621 of the Constitution of Alabama
34	34	2 of 1901, as amended by Amendment 890, now appearing
35	35	3 as Section 111.05 of the Official Recompilation of
36	36	4 the Constitution of Alabama of 1901, as amended,
37	37	5 prohibits a general law whose purpose or effect
38	38	6 would be to require a new or increased expenditure
39	39	7 of local funds from becoming effective with regard
40	40	8 to a local governmental entity without enactment by
41	41	9 a 2/3 vote unless: it comes within one of a number
42	42	10 of specified exceptions; it is approved by the
43	43	11 affected entity; or the Legislature appropriates
44	44	12 funds, or provides a local source of revenue, to
45	45	13 the entity for the purpose.
46	46	14 The purpose or effect of this bill would be
47	47	15 to require a new or increased expenditure of local
48	48	16 funds within the meaning of the amendment. If this
49	49	17 bill is not enacted by a 2/3 vote, it will not
50	50	18 become effective with regard to a local entity
51	51	19 unless approved by the local entity or until, and
52	52	20 only as long as, the Legislature appropriates funds
53	53	21 or provides for a local source of revenue.
54	54	22
55	55	23 A BILL
56	56	24 TO BE ENTITLED
57	57	25 AN ACT
58	58	26
59	59	Page 2 1 Relating to public writings and public records; to
60	60	2 amend Section 12-21-3.1, Code of Alabama 1975, relating to the
61	61	3 confidentiality of law enforcement investigative reports and
62	62	4 related investigative material, to further provide for the
63	63	5 confidentiality of law enforcement investigative reports and
64	64	6 related investigative material, and to provide for exceptions
65	65	7 to that confidentiality; and in connection therewith to have
66	66	8 as its purpose or effect the requirement of a new or increased
67	67	9 expenditure of local funds within the meaning of Amendment 621
68	68	10 of the Constitution of Alabama of 1901, as amended by
69	69	11 Amendment 890, now appearing as Section 111.05 of the Official
70	70	12 Recompilation of the Constitution of Alabama of 1901, as
71	71	13 amended.
72	72	14 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
73	73	15 Section 1. Section 12-21-3.1, Code of Alabama 1975,
74	74	16 is amended to read as follows:
75	75	17 "§12-21-3.1.
76	76	18 "(a) Neither law enforcement investigative reports
77	77	19 nor the testimony of a law enforcement officer in a pending
78	78	20 criminal matter may be subject to a civil or administrative
79	79	21 subpoena, except as provided in subsection (c).
80	80	22 "(b) Law enforcement investigative reports and
81	81	23 related investigative material are not created by law
82	82	24 enforcement officers or employees after an investigation
83	83	25 begins shall be public records after a criminal matter is
84	84	26 disposed of as provided in subsection (g).
85	85	Page 3 1 "(c)(1) Law enforcement investigative reports,
86	86	2 records, field notes, witness statements, and other
87	87	3 investigative writings or recordings, any of which are created
88	88	4 by law enforcement officers or employees after an
89	89	5 investigation begins, are privileged communications protected
90	90	6 from disclosure. as public records. This privilege shall be
91	91	7 overcome upon a showing of any of the following:
92	92	8 "a. The requested records were disclosed to a
93	93	9 criminal defendant during discovery relating to that criminal
94	94	10 case.
95	95	11 "b. The requested records were introduced as
96	96	12 evidence in a criminal or civil proceeding.
97	97	13 "c. The requested records were disclosed to a third
98	98	14 party who is not a member of law enforcement.
99	99	15 "(2) Notwithstanding subdivision (1), the
100	100	16 communications shall remain privileged and exempt from
101	101	17 disclosure as public records if law enforcement or next of kin
102	102	18 of the victim shows a specific, material harm will result from
103	103	19 disclosure. Next of kin of a deceased or incapacitated adult
104	104	20 victim or a parent of a minor victim may petition a court
105	105	21 having jurisdiction over the custodian of the records to seal
106	106	22 any audio or visual images or recordings of the victim during
107	107	23 a criminal assault or showing the injuries suffered by the
108	108	24 victim in a way that the court deems to foster humiliation,
109	109	25 degradation, or dehumanization of the victim, or otherwise
110	110	26 violates the human dignity of the victim.
111	111	Page 4 1 "(c) (d) Under no circumstance may a party to a
112	112	2 civil or administrative proceeding discover material which is
113	113	3 not authorized discoverable by a defendant in a criminal
114	114	4 matter. Noncriminal parties may upon proper motion and order
115	115	5 from a court of record: Secure photographs, documents and
116	116	6 tangible evidence for examination and copying only by order of
117	117	7 a court imposing such conditions and qualifications as may be
118	118	8 necessary to protect a chain of custody of evidence; or
119	119	9 protect the prosecutors', law enforcement officers', or
120	120	10 investigators' work product; or to prevent the loss or
121	121	11 destruction of documents, objects, or evidence. Such discovery
122	122	12 order may be issued by a court of record upon proof by
123	123	13 substantial evidence, that the moving party will suffer undue
124	124	14 hardship and that the records, photographs or witnesses are
125	125	15 unavailable from other reasonable sources.
126	126	16 "(d) (e) Discovery orders prior to the disposition
127	127	17 of the criminal matter under investigation are not favored and
128	128	18 should be granted only upon showing that the party seeking
129	129	19 discovery has substantial need of the materials and is unable,
130	130	20 without undue hardship, to obtain the substantial equivalent
131	131	21 by other means.
132	132	22 "(e) (f) Nothing in this section shall preclude the
133	133	23 disclosure of investigative reports, including the testimony
134	134	24 of law enforcement officers, to a state administrative agency
135	135	25 authorized by law to investigate or conduct administrative
136	136	26 contested case hearings in any matter related to the
137	137	27 suspension, revocation, or restriction of a professional
138	138	Page 5 1 license or registration for the protection of the public
139	139	2 health and safety.
140	140	3 "(f) (g) For purposes of this section, a criminal
141	141	4 matter is disposed of in any of the following ways:
142	142	5 "(1) When the prosecuting authority has presented
143	143	6 the matter to a grand jury and a no bill or true bill has been
144	144	7 returned.
145	145	8 "(2) After a written statement by the chief law
146	146	9 enforcement officer of the agency conducting the investigation
147	147	10 that the matter under investigation is closed.
148	148	11 "(3) When the entity or individual under
149	149	12 investigation has been tried and final judgment entered.
150	150	13 "(4) When the totality of the circumstances,
151	151	14 including, but not limited to, the passage of time without
152	152	15 activity, demonstrates that law enforcement is no longer
153	153	16 actively pursuing an investigation or when the statute of
154	154	17 limitations for the applicable criminal matter expires,
155	155	18 whichever occurs first.
156	156	19 "(h) A custodian of investigative reports shall
157	157	20 maintain and protect those reports and all related
158	158	21 investigative materials in accordance with state laws relating
159	159	22 to public writings.
160	160	23 "(i) For purposes of this section, "custodian" means
161	161	24 a person designated by a governmental agency to maintain
162	162	25 actual possession, custody, or control of governmental records
163	163	26 and who has been given the express, implied, or apparent
164	164	27 authority from the governmental agency or a governmental
165	165	Page 6 1 official to grant or deny a request for access to a
166	166	2 governmental record. If a governmental agency has not
167	167	3 designated a custodian, the custodian shall be the
168	168	4 governmental official or governmental employee having ultimate
169	169	5 executive responsibility for any governmental agency having
170	170	6 possession, custody, or control of governmental records. The
171	171	7 term does not include a person employed by or working on
172	172	8 behalf of a governmental agency that holds or maintains
173	173	9 records as a service to another governmental agency."
174	174	10 Section 2. The purpose or effect of this bill would
175	175	11 be to require a new or increased expenditure of local funds
176	176	12 within the meaning of Amendment 621 of the Constitution of
177	177	13 Alabama of 1901, as amended by Amendment 890, now appearing as
178	178	14 Section 111.05 of the Official Recompilation of the
179	179	15 Constitution of Alabama of 1901, as amended. If this bill is
180	180	16 not enacted by a 2/3 vote, it will not become effective with
181	181	17 regard to a local entity unless approved by the local entity
182	182	18 or until, and only as long as, the Legislature appropriates
183	183	19 funds or provides for a local source of revenue.
184	184	20 Section 3. This act shall become effective on the
185	185	21 first day of the third month following its passage and
186	186	22 approval by the Governor, or its otherwise becoming law.
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