§ 186.36. — 186.36. (Added by Stats. 2017, Ch. 695, Sec. 7.)

California § 186.36.

• Jurisdiction: California
• Code PEN: Penal Code - PEN
• Title: 7.
• Part 1.: TITLE 7. OF CRIMES AGAINST PUBLIC JUSTICE
• Ch. 11.: CHAPTER 11. Street Terrorism Enforcement and Prevention Act

Text

(a)
The Department of Justice is responsible for establishing regulations for shared gang databases. All shared gang databases shall comply with those regulations.
(b)
The department shall administer and oversee the CalGang database. Commencing January 1, 2018, the CalGang Executive Board shall not administer or oversee the CalGang database.
(c)
The department shall establish the Gang Database Technical Advisory Committee.
(d)
Each appointee to the committee, regardless of the appointing authority, shall have the following characteristics:
(1)
Substantial prior knowledge of issues related to gang intervention, suppression, or prevention efforts.
(2)
Decisionmaking authority for, or direct access to those who have decisionmaking authority for, the agency or organization he or she represents.
(3)
A willingness to serve on the committee and a commitment to contribute to the committee’s work.
(e)
The membership of the committee shall be as follows:
(1)
The Attorney General, or his or her designee.
(2)
The President of the California District Attorneys Association, or his or her designee.
(3)
The President of the California Public Defenders Association, or his or her designee.
(4)
A representative of organizations that specialize in gang violence intervention, appointed by the Senate Committee on Rules.
(5)
A representative of organizations that provide immigration services, appointed by the Senate Committee on Rules.
(6)
The President of the California Gang Investigators Association, or his or her designee.
(7)
A representative of community organizations that specialize in civil or human rights, appointed by the Speaker of the Assembly.
(8)
A person who has personal experience with a shared gang database as someone who is or was impacted by gang labeling, appointed by the Speaker of the Assembly.
(9)
The chairperson of the California Gang Node Advisory
Committee, or his or her designee.
(10)
The President of the California Police Chiefs Association, or his or her designee.
(11)
The President of the California State Sheriffs’ Association, or his or her designee.
(f)
The committee shall appoint a chairperson from among the members appointed pursuant to subdivision (e). The chairperson shall serve in that capacity at the pleasure of the committee.
(g)
Each member of the committee who is appointed pursuant to this section shall serve without compensation.
(h)
If a committee member is unable to adequately perform his or her duties, he or she is subject to removal from the board by a majority vote of the full committee.
(i)
A vacancy on the committee as a result of the removal of a member shall be filled by the appointing authority of the removed member within 30 days of the vacancy.
(j)
Committee meetings are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
(k)
The department, with the advice of the committee, shall promulgate regulations governing the use, operation, and oversight of shared gang databases. The regulations issued by the department shall, at minimum, ensure the following:
(1)
The system integrity of a shared gang database.
(2)
All law enforcement agency and criminal justice agency personnel who access a shared gang database undergo comprehensive and standardized training on the use of shared gang databases and related policies and procedures.
(3)
Proper criteria are established for supervisory reviews of all database entries and regular reviews of records entered into a shared gang database.
(4)
Reasonable measures are taken to locate equipment related to the operation of a shared gang database in a secure area in order to preclude access by unauthorized personnel.
(5)
Law enforcement agencies and criminal justice agencies notify the department of any missing equipment that could potentially compromise a shared gang database.
(6)
Personnel authorized to access a shared gang database are limited to sworn law enforcement personnel, nonsworn law enforcement support personnel, or noncriminal justice technical or maintenance personnel, including information technology and information security staff and contract employees, who have been subject to character or security clearance and who have received approved training.
(7)
Any records contained in a shared gang database are not disclosed for employment or military screening purposes.
(8)
Any records contained in a shared gang database are not disclosed for purposes of enforcing federal immigration law, unless required by state or federal statute or regulation.
(9)
The committee does not discuss or access individual records contained in a shared gang database.
(l)
The regulations issued by the department shall include, but not be limited to, establishing the following:
(1)
Policies and procedures for entering, reviewing, and purging documentation.
(2)
Criteria for designating a person as a gang member or associate that are unambiguous, not overbroad, and consistent with empirical research on gangs and gang membership.
(3)
Retention periods for information about a person in a shared gang database that is consistent with empirical research on the duration of gang membership.
(4)
Criteria for designating an organization as a criminal street gang and retention periods for information about criminal street gangs.
(5)
Policies and procedures for notice to a person in a shared gang database. This includes policies and procedures for when notification would compromise an active criminal investigation or the health or safety of a minor.
(6)
Policies and procedures for responding to an information request, a request for removal, or a petition for removal under Sections 186.34 and 186.35, respectively. This includes policies and procedures for a request or petition that could compromise an active criminal investigation or the health or safety of a minor.
(7)
Policies and procedures for sharing information from a shared gang database with a federal agency, multistate agency, or agency of another state that is otherwise denied access. This includes sharing of information with a partner in a joint task force.
(8)
Implementation of supervisory review procedures and periodic record reviews by law enforcement agencies and criminal justice agencies, and reporting of the results of those reviews to the department.
(m)
Shared gang databases shall be used and operated in compliance with all applicable state and federal regulations, statutes, and guidelines. These include Part 23 of Title 28 of the Code of Federal Regulations and the department’s Model Standards and Procedures for Maintaining Criminal Intelligence Files and Criminal Intelligence Operational Activities.
(n)
The department, with the advice of the committee, no later than January 1, 2020, shall promulgate regulations to provide for periodic audits of each CalGang node and user agency to ensure the accuracy, reliability, and proper use of the CalGang database. The department shall mandate the purge of any information for which a user agency cannot establish adequate support.
(o)
The department, with the advice of the committee, shall develop and implement standardized periodic training for everyone with access to the CalGang database.
(p)
Commencing February 15, 2018, and annually on February 15 thereafter, the department shall publish an annual report on the CalGang database.
(1)
The report shall include, in a format developed by the department, that contains, by ZIP Code, referring agency, race, gender, and
age, the following information for each user agency:
(A)
The number of persons included in the CalGang database on the day of reporting.
(B)
The number of persons added to the CalGang database during the immediately preceding 12 months.
(C)
The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 received during the immediately preceding 12 months.
(D)
The number of requests for removal of information about a person from the CalGang database pursuant to Section 186.34 that were granted during the immediately preceding 12 months.
(E)
The number of petitions for removal of information about a person from the CalGang database
pursuant to Section 186.35 adjudicated in the immediately preceding 12 months, including their dispositions.
(F)
The number of persons whose information was removed from the CalGang database due to the expiration of a retention period during the immediately preceding 12 months.
(G)
The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise an active criminal investigation, in the immediately preceding 12 months.
(H)
The number of times an agency did not provide notice or documentation described in Section 186.34 because providing that notice or documentation would compromise the health or safety of the designated minor, in the immediately preceding 12 months.
(2)
The report shall include the results from each user agency’s periodic audit conducted pursuant to subdivision (n).
(3)
The department shall post the report on the department’s Internet Web site.
(4)
The department shall invite and assess public comments following the report’s release, and each report shall summarize public comments received on prior reports and the actions taken in response to comments.
(q)
The department shall instruct all user agencies to review the records of criminal street gang members entered into a shared gang database to ensure the existence of proper support for each criterion for entry in the shared gang database.
(r)
(1)
The department shall instruct each CalGang node agency to purge from a shared gang database any record of a person entered into the database designated as a suspected gang member, associate, or affiliate that does not meet criteria for entry or whose entry was based upon the following criteria: jail classification, frequenting gang neighborhoods, or on the basis of an untested informant. Unsupported criteria shall be purged and the records of a person shall be purged if the remaining criteria are not sufficient
to support the person’s designation.
(2)
After the purge is completed, the shared gang database shall be examined using a statistically valid sample, pursuant to professional auditing standards to ensure that all fields in the database are accurate.
(s)
(1)
Commencing January 1, 2018, any shared gang database operated by law enforcement in California including, but not limited to, the CalGang database, shall be under a moratorium. During the moratorium, data shall not be added to the database. Data in the database shall not be accessed by participating agencies or shared with other entities. The moratorium on a shared gang database shall not be
lifted until the Attorney General certifies that the purge required in subdivision (r) has been completed. After the purge has been completed and before the department adopts the regulations required by this section, new data may be entered, provided the new data meets the criteria established by the conditions of the purge.
(2)
The department shall not use regulations developed pursuant to this section to invalidate data entries entered prior to the adoption of those regulations.
(t)
The department shall be responsible for overseeing shared gang database system discipline and conformity with all applicable state and federal regulations, statutes, and guidelines.
(u)
The department may enforce a violation of a state or federal law or regulation with respect to a shared gang database, or a violation of regulation,
policy, or procedure established by the department pursuant to this title by any of the following methods:
(1)
Letter of censure.
(2)
Temporary suspension of access privileges to the shared gang database system.
(3)
Revocation of access privileges to the shared gang database system.
(v)
The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for any individual who shares information from a shared gang database for employment or military screening purposes.
(w)
The department shall temporarily suspend access to a shared gang database system or revoke access to a shared gang database system for an individual who
shares information from a shared gang database for federal immigration law purposes, unless required by state or federal statute or regulation.
(x)
The department shall ensure that the shared gang database user account of an individual is disabled if the individual no longer has a need or right to access a shared gang database because he or she has separated from his or her employment with a user agency or for another reason.

Legislative History

Added by Stats. 2017, Ch. 695, Sec. 7. (AB 90) Effective January 1, 2018.