Chapter 96G — LIMITS ON POLICE DEPARTMENT USE AND STORAGE OF DNA PROFILES

Sec. 96G.1. Definitions.

Sec. 96G.2. Prohibitions on Uploading and Storing Certain DNA Profiles.

Sec. 96G.3. DNA Profile Purge Requirement.

Sec. 96G.4. Use of Non-CODIS DNA Databases Only for Quality Assurance Purposes.

Sec. 96G.5. Controller’s Audit.

Sec. 96G.6. Notice to Public.

Sec. 96G.7. Undertaking for the General Welfare.

Sec. 96G.8. No Conflict with Federal or State Law.

Sec. 96G.9. Severability.

For purposes of this Chapter 96G, the following terms have the following meanings.

(a) Terms related to DNA Profiles.

“DNA Profile” means a digital representation of the pattern of an individual’s DNA that may be stored in a DNA Database. DNA Profile does not include the physical tissue or other physical human material from which the DNA that is the subject of a DNA Profile is extracted and analyzed.

“Evidentiary DNA Profile” means a DNA Profile collected or analyzed as evidence or potential evidence of a crime, including but not limited to a DNA Profile derived from material in a rape kit following a sexual assault.

“Reference DNA Profile” means a DNA Profile obtained from a known individual and used for purposes of comparison with Evidentiary DNA Profiles.

“Victim” means a person harmed as a result of a crime or alleged crime.

“Victim Reference DNA Profile” means a Reference DNA Profile obtained from a Victim, and does not include any Evidentiary DNA Profile determined to belong to a Victim.

(b) Terms related to DNA Databases.

“DNA Database” means a database used to store DNA Profiles.

“CODIS Database” means a DNA Database that is subject to the rules and standards that apply to CODIS DNA Databases under state and federal law, including but not limited to FBI CODIS Quality Assurance Standards and federal and state CODIS accreditation standards. CODIS is an acronym that stands for Combined DNA Index Systems. CODIS Databases are maintained primarily to enable law enforcement to store and search DNA Profiles obtained from forensic evidence and attributable to putative perpetrators of crime. CODIS Databases include but are not limited to the National DNA Index System, state DNA Databases such as the CAL-DNA Data Bank, and certain local DNA Databases operated by local law enforcement crime laboratories such as the Police Department Crime Laboratory.

“Non-CODIS DNA Database” means a DNA Database that is accessed or maintained by the Police Department or other City departments and is not a CODIS Database. Non-Codis DNA Databases include but are not limited to any DNA Database used for elimination or decontamination purposes (sometimes referred to as a “quality control” or “quality assurance” database), and any DNA Database used for investigatory purposes that is not a CODIS Database.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

(a) Except as required by state or federal law, or by accreditation standards, neither the Police Department (“SFPD”) nor any other City department may upload or store a Victim Reference DNA Profile in any Non-CODIS DNA Database. If a DNA Profile already stored in a Non-CODIS DNA Database is determined to be a Victim Reference DNA Profile, the DNA Profile must be purged from that Non-CODIS DNA Database as soon as reasonably practicable following that determination.

(b) Except as required by state or federal law, or by accreditation standards, neither the SFPD nor any other City department may store in any NonCODIS DNA Database for longer than 60 days any Evidentiary DNA Profile. Any Evidentiary DNA Profile must be purged from any Non-CODIS DNA Database in which the Evidentiary DNA Profile has been stored for a period of 60 days.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

By July 1, 2022, or 15 days after the effective date of the ordinance in Board File No. 220242, establishing this Chapter 96G, the SFPD shall purge from all Non-CODIS DNA Databases all Evidentiary DNA Profiles that have been stored in a Non-CODIS DNA Database for longer than 60 days, and all Victim Reference DNA Profiles that have been stored in a Non-CODIS DNA Database for any length of time.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

The SFPD and other City departments may access, search, or otherwise use any Non-CODIS DNA Database, including any Evidentiary DNA Profiles stored in the Non-CODIS DNA Database, only for the purpose of identifying and/or eliminating contamination in a sample from which DNA Profiles have been or may be identified, sometimes referred to as “quality assurance” or “quality control” purposes, and not for any law enforcement investigative purpose.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

To the extent permitted by state and federal law, within three months of the effective date of the ordinance in Board File No. 220242 establishing this Chapter 96G, the Controller shall audit all Non-CODIS DNA Databases maintained by the SFPD and report to the Board of Supervisors on any use of Reference DNA Profiles and Evidentiary DNA Profiles for law enforcement investigative purposes since the creation of the Non-CODIS DNA Database. This one-time audit shall include a list of all Victim Reference DNA Profiles and all Evidentiary DNA Profiles determined to belong to Victims that are known to have been collected and stored in the SFPD Non-CODIS DNA Database at any time. The audit shall also include a list of Victim Reference DNA Profiles and Evidentiary DNA Profiles determined to belong to Victims that are known to have been stored in the SFPD NonCODIS DNA Database at any time and that have been used in criminal cases, together with the outcomes of those cases.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

Within two months of the effective date of the ordinance in Board File No. 220242 establishing this Chapter 96G, SFPD shall prepare and publish on SFPD’s website a one-time public notice detailing how SFPD handles and stores a Victim’s DNA Profile (“SFPD Notice”). Such notice shall be posted for 30 days and shall include information regarding SFPD’s practices and safeguards designed to ensure that SFPD will not store Victim Reference DNA Profiles in Non-CODIS DNA Databases and that SFPD has purged Victim Reference DNA Profiles previously stored in SFPD’s Non

CODIS DNA Databases. The Department of Police Accountability (“DPA”), Department of Public Health, and the Office of Sexual Harassment and Assault Response and Prevention, shall post the SFPD Notice on their respective websites for 30 days.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

In enacting this Chapter 96G, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

Nothing in this Chapter 96G shall be interpreted or applied so as to create any requirement, power, or duty in conflict with any federal or state law.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)

If any section, subsection, sentence, clause, phrase, or word of this Chapter 96G, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the Chapter. The Board of Supervisors hereby declares that it would have passed this Chapter and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Chapter or application thereof would be subsequently declared invalid or unconstitutional.

(Added by Ord. 73-22, File No. 220242, App. 5/6/2022, Eff. 6/6/2022)