BILL ANALYSIS                                                                                                                                                                                                    






                           SENATE JUDICIARY COMMITTEE
                        Senator Ellen M. Corbett, Chair
                           2007-2008 Regular Session


          SB 39                                                  S
          Senator Migden                                         B
          As Amended April 19, 2007                              
          Hearing Date: April 24, 2007                           3
          Welfare and Institutions Code                          9
          GMO:rm                                                 

                                     SUBJECT
                                         
            County Welfare Agencies:  Public Access to Juvenile Case  
                                     Files

                                   DESCRIPTION

           This bill would:
             (1)  provide for the release by a county welfare agency  
          of specified 
                information regarding a deceased child where the  
             death is reasonably                                    
                suspected to be the result of abuse or neglect,  
             within five days of the 
                child's death;
             (2)  where a child's death is substantiated to be from  
          abuse or neglect, 
                establish a process for the release of specified  
             documents in a county                                  
                welfare agency's juvenile case file, without court  
             review and for the 
                release of other documents in the case file after a  
             petition is filed and 
                opportunity is given for interested parties to object  
             to the release of those 
                other documents; and
             (3)   clarify existing law relating to the release of a  
                juvenile case file when a child has died due to abuse  
                or neglect, including the presumption of disclosure  
                unless statutory grounds for non- or  
                partial-disclosure or redaction of information exist.  


                                                                 
          (more)



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          The bill contains legislative declarations and findings  
          regarding the need for quicker access to information  
          contained in a juvenile case file where a child died as a  
          result of abuse or neglect.

          (This analysis reflects author's amendments to be offered  
          in Committee.)

                                    BACKGROUND  

          Except where a child has died, all case files of children  
          who are dependents or wards of the juvenile court are kept  
          confidential, with specified exemptions.  In response to  
          several well-publicized cases where juveniles died  
          allegedly as a result of negligence by county child  
          protective agency and other county agencies involved in the  
          juvenile court proceedings, the Legislature in 1999  
          established a streamlined process for any person to obtain  
          access to a juvenile case file where a child has died. [SB  
          199 (Polanco, Chapter 984, Statutes of 1999).]  The  
          process, embodied in  827(a)(2) of the Welfare and  
          Institutions Code, allows any interested party to petition  
          the court to access the juvenile case file of a deceased  
          child, requires notice and an opportunity for specified  
          parties to object in a hearing, and allows information in  
          the deceased child's file that relates to or  identifies  
          another child to be removed or redacted from the file  
          before its release. Under the same procedure, the court  
          still may limit or prohibit access to the file, if that  
          release of the file or any portion of the file would be  
          detrimental to another child who is or was within the  
          jurisdiction of the juvenile court.

          Other than the process described in  827(a)(2) for a  
          deceased child's records, the juvenile case files may be  
          inspected, without first obtaining a court order, by city  
          attorneys and prosecutors handling criminal or juvenile  
          cases, judges, referees, hearing officers, law enforcement  
          handling the criminal or juvenile proceedings involving the  
          minor, the superintendent of the school district where the  
          minor is enrolled, children's multidisciplinary teams, and  
          persons or agencies providing treatment or supervision of  
          the child.  Any other person seeking to inspect juvenile  
          case files must file a petition, and the court must inspect  
          the file and determine what information, if any, should be  
                                                                       




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          released.  Here the court must rely on state or federal  
          prohibitions against disclosure of certain information  
          (such as confidential psychologist's reports, which may be  
          accessed by even an authorized person such as a parent only  
          after a noticed hearing) to determine whether information  
          sought should be released.

          In the intervening years since passage of SB 199, numerous  
          cases have been reported in the media about children dying  
          due to abuse or neglect while at home or in foster care or  
          other placements made by county welfare departments.   
          According to the State Death Review Council (the  
          "Council"), official reports of child abuse deaths  
          represent a significant undercount of the actual number of  
          child abuse and neglect fatalities.  The Council's 2005  
          report states that in 2002, there were 140 deaths  
          officially reported as resulting from child abuse or  
          neglect.  As recently as this month in Sacramento, a  
          12-year old girl whom the county child protective services  
          visited at least seven times died weighing only 25 pounds  
          and with wounds so large that bone was visible.

          Proponents of SB 39 contend that the procedure established  
          in  827(a)(2) for accessing files of children who died as  
          a result of abuse or neglect has proven to be difficult and  
          too costly to use because the courts lack clear guidance,  
          resulting in delays as well as inconsistencies between  
          counties on what information is required to be disclosed.   
          This end result frustrates the ability to review these  
          cases of child death promptly and to advocate for changes  
          to prevent any other child from suffering the same fate.

          This bill proposes to establish an expedited process for  
          the release of specific information in county welfare  
          agency records that are related to the death of a child and  
          to clarify the presumption of disclosure in existing law,  
          subject to the existence of statutory grounds to limit or  
          prohibit disclosure.

                             CHANGES TO EXISTING LAW
           
           Existing law  requires the juvenile case file of a dependent  
          child or ward of the court to be kept confidential, except  
          that specified persons or entities are authorized to  
          inspect those records and, on a petition and noticed  
                                                                       




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          hearing, disclosure of any or all of the files may be  
          ordered by the court to any interested party. [Welfare &  
          Institutions Code  827(a).  All references are to the  
          Welfare & Institutions Code, unless otherwise indicated.]

           Existing law  provides that juvenile case files pertaining  
          to a deceased child who was within the jurisdiction of the  
          juvenile court shall be released pursuant to an order of  
          the court after the filing of a petition, an opportunity  
          for interested parties to object, and a hearing on the  
          petition. [ 827(a)(2).] 

           Existing case law  provides that a deceased child is "within  
          the jurisdiction of the juvenile court" if the court may  
          adjudge that child to be a dependent of the court under   
          300, even where no juvenile petition has been filed.  [  In  
          re Elijah S.  (2005) 125 Cal.App.4th 1532.]
           
          This bill  would affirm the presumption under  827(a)(2) in  
          favor of the release of information when a child is  
          deceased unless statutory grounds for non- or partial  
          disclosure or redaction of information exist. (See Comment  
          5.)

           This bill  would affirm the holding in  Pack v. Kings County  
          Human Services Agency  (2001) 89 Cal.App.4th 821 that where  
          the child whose records are sought has died, no balancing  
          or weighing of interests is required except where the  
          interests of another child are involved. (See Comment 5.)

           This bill  would revise the process for accessing  
          information about a deceased child where the cause of death  
          is suspected or determined to be from abuse or neglect, as  
          follows:
               (a)   a county welfare agency (the custodian of  
               records) would be required, 
                  within five days of death of a child, to disclose  
                  specified information about the deceased child  
                  where there is a reasonable suspicion that the  
                  child died as a result of abuse or neglect (See  
                  Comment 3a);
               (b)  a county welfare agency (the custodian of  
               records) would be required, 
                  upon request, to release without need of a petition  
                  or judicial review, specified documents to a  
                                                                       




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                  requesting party, where (1) the county child  
                  protective services determined that abuse or  
                  neglect was substantiated, or (2) a law enforcement  
                  investigation concluded that abuse or neglect  
                  occurred, or (3) the coroner or medical examiner  
                  concluded that the deceased child had suffered  
                  abuse or neglect (See Comment 3b);
               (c)     for all other documents or information in the  
                  juvenile case file, a 
                  requesting party may petition the court for an  
                  order to release the information.  The petition  
                  would be served on the custodian of records and  
                  interested parties known to the petitioner, and  
                  opportunity to object would be provided.  If no  
                  objection is received by the court, the court would  
                  review the request and determine whether the  
                  information requested should be released.  If  
                  objection from an interested party is received, the  
                  court would set a hearing and rule on the request  
                  based on documents on file and arguments made at  
                  the hearing.  Any information relating to another  
                  child would be redacted from the file prior to its  
                  release.  A court may also issue an order limiting  
                  or prohibiting access to the case file upon a  
                  showing by preponderance of evidence that the  
                  release of the information is detrimental to the  
                  safety, protection, or physical or emotional  
                  well-being of another child who is connected to the  
                  juvenile case of the deceased child. (This  
                  provision is referenced in Comment 4.)

           This bill  would make an order of the court pursuant to (c)  
          above immediately reviewable by petition to the appellate  
          court for the issuance of an extraordinary writ.

           This bill  would require, prior to the release of any record  
          pursuant to (b) above, the agency that maintains the  
          records or its representative to redact specified  
          information. (See Comment 3d.)

           This bill  would require the agency that maintains the  
          juvenile case files pertaining to the deceased child to  
          compile a log identifying, with particularity, all  
          remaining documents contained in the case files.  The  
          Department of Social Services would be tasked with  
                                                                       




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          developing the form to be used for these disclosures.

           This bill  contains legislative findings and declarations  
          relating to the number of child deaths due to abuse and  
          neglect, and the need for an expedited decision to release  
          juvenile case files so as to not lose the opportunity to  
          effect positive change.
                                         
                                    COMMENT
          
          1.    Author's Amendments

             The author's amendments to be offered in committee are  
            the result of extensive discussions among the author's  
            office, the sponsors, committee staff and interested  
            parties such as the County Welfare Directors Association  
            (CWDA) of California.  A mock-up of the bill, as to be  
            amended by author's amendments, is provided for the  
            committee's convenience.

            The amendments reflect a three-part approach to  
            increasing public access to information surrounding the  
            death of a child from abuse or neglect.

            First is an informational announcement about the death  
            (i.e., name and gender, date of death, whether an  
            investigation is or will be commenced).

            Second is a list of documents related to the child's  
            death that may be requested and provided without court  
            review (because they will always be relevant to the death  
            or cause of death of the child), but redacted for  
            information that is privileged, confidential, or not  
            subject to disclosure pursuant to some other law, or  
            redacted for information about another child who is  
            directly or indirectly connected with the deceased  
            child's juvenile case.

            Third is an expedited court procedure for access to other  
            documents not provided under the first two categories,  
            with additional legislative guidance given to courts in  
            reviewing  827(a)(2) petitions for disclosure of records  
            of a deceased child.  

            Other amendments would clarify the Legislature's  
                                                                       




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            presumption of disclosure of the juvenile case file where  
            a child died from abuse or neglect, unless the statutory  
            grounds for redaction, or limitation or prohibition of  
            disclosure exist.  This presumption was intended by the  
            enactment of  827(a)(2) in 1999.

          2.    Need for the bill
           
            According to the author, "public policy experts,  
            concerned decision-makers, and children's advocates are  
            forced to file a legal petition to obtain  
            non-confidential information about the deaths of foster  
            care children who are killed by abuse and neglect, even  
            though such non-confidential information might help these  
            stakeholders formulate recommendations for systemic  
            reform; even though time may be of essence to prevent  
            impending deaths of other children.

            The standards for disclosure under current law are so  
            vague and provide so much discretion to the juvenile  
            court judge, that counties which - for whatever reason -  
            want to avoid public scrutiny of their operations when  
            children die on their watch can find and do find an  
            abundance of grounds for generating litigation.  This  
            causes delays that thwart one of the aims of public  
            disclosure - which is to possibly prevent future deaths -  
            and causes litigation costs that effectively block non  
            profits from seeking documents.

            And counties do resist.  The Children's Advocacy  
            Institute, for example, has had to resort to litigation  
            against Orange county just to obtain the raw 'tombstone'  
            data permitted by Government Code  6252.6 [the  
            California Public Records Act].  Likewise, current law  
            does not explicitly or predictably protect the identities  
            of other individuals in the case file (including the  
            social workers), thereby providing an additional  
            incentive for the counties and other interested parties  
            to litigate against disclosure."

            The author and proponents believe that the changes SB 39  
            would make to the process of disclosing information  
            related to a deceased child whose death was  caused by  
            abuse and neglect will spur reform and save the lives of  
            children whether they are at home or at a foster care  
                                                                       




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            placement.

          3.    Files and information to be disclosed without court  
          review

             According to the sponsors of the bill, obtaining juvenile  
            case files about children who died because of abuse or  
            neglect has not been as easy as the current 827 (a)(2)  
            language reads.  The process is tedious and subject to  
            delays, and results in very costly efforts that don't  
            always produce good information, they say.  Furthermore,  
            because they do not know what is in a particular case  
            file, it is difficult to target their requests for  
            information.

            a.   Pre-substantiation report  

               Under SB 39, the three-part approach to obtaining  
               information surrounding the death of a child, whether  
               there has been contact with the county child  
               protective services agency or county welfare agency or  
               not, would begin with a release of information by the  
               county welfare agency (the custodian of records)  
               stating the name and gender of the child, the date of  
               death, and whether the death is under investigation by  
               the child welfare agency or by law enforcement.  This  
               "pre-substantiation report" alerts the public that a  
               child has died due to abuse or neglect or both.  

            b.   After death from abuse or neglect has been  
            substantiated  

               The second tier of documents in the juvenile case  
               file, to be released upon request without court  
               review, consists of various documents related to the  
               circumstances surrounding the event of death of the  
               child.  These documents are deemed to be highly  
               probative and likely to contain information relevant  
               to the cause of death of the child without unduly  
               impinging another person's privacy or confidential or  
               privileged information which would be redacted.  In  
               order to access these documents, the county child  
               protective services agency had to have substantiated  
               child abuse or neglect of the deceased child; or the  
               law enforcement investigation concluded the death was  
                                                                       




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               caused by abuse or neglect; or the coroner or medical  
               examiner concluded that the deceased child suffered  
               abuse or neglect.

                 These documents are:
                     The emergency response referral information  
                 form and the emergency response notice of referral  
                 disposition form completed by the child welfare  
                 agency;
                     Any "cross reports" completed by the child  
                 welfare agency to law enforcement relating to the  
                 deceased child;
                     All risk and safety assessments of the child's  
                 placement at the time of death completed by the  
                 child welfare agency;
                     All health care records, except for mental  
                 health records, of the deceased child related to the  
                 child's cause of death and previous injuries  
                 reflective of a pattern of abuse or neglect; and 
                     Copies of police reports regarding the person  
                 or persons against whom the child abuse or neglect  
                 was substantiated.

               If the child was living with a parent or guardian at  
               the time of his or her death, all previous referrals  
               of abuse or neglect of the deceased child while living  
               with that parent or guardian would be disclosed.

               If the child died while in foster care, the following  
               documents must be provided in addition to the five  
               documents named above:
                     Records pertaining to the foster parents'  
                 initial licensing and renewals and types of licenses  
                 held, if these records are in the case file.  The  
                 CWDA suggested these records may not be in the  
                 court's or their own case files, since it is  
                 Community Care Licensing that regulates foster  
                 parents;
                     All reported licensing violations, such as  
                 notices of action, if in the case file; and
                     Records of training completed by the foster  
                 parents, if in the case file.

                Suggested amendments:  There are references to "county  
               child welfare agency," "local child welfare agency,"   
                                                                       




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               "child protective services agency," as well as to  
               "county welfare agency" in the text of the bill.  A  
               consistent reference should be used in order to avoid  
               confusion as to who is responsible for releasing the  
               records or who is in control of the records to be  
               released.

            c.    Release of documents within 10 business days  

               Under SB 39, the "custodian of records" for the local  
               child welfare agency must release the documents  
               identified above in (a) and (b) within 10 business  
               days of the request or the disposition of the  
               investigation, whichever is later.

               The bill does not provide for any penalty if the  
               custodian of records fails to release the requested  
               documents or fails to release them within 10 days of  
               the request.  Of course, the requester can go to court  
               and file a petition to compel the custodian of records  
               to release the records or files.  But that would  
               defeat the purpose of setting up an administrative  
               release of the records, bypassing court review, which  
               this bill intends to do.  By providing some sort of  
               penalty, the custodian will be motivated to act  
               promptly (although the bad publicity that could be  
               generated by a refusal or failure to provide the  
               records or files may be enough).

               Upon receiving a request for the documents listed  
               above in Comments 2a and 2b, the custodian of records  
               must serve a copy of the request on all interested  
               parties. If anyone objects, including the custodian of  
               records, they may petition the juvenile court for  
               relief to prevent release of the documents pursuant to  
                827(a)(2)(D). (See Comment 4).

            d.    Redactions required

                Prior to the release of any of the documents named  
               above, the custodian of records would be required,  
               under SB 39, to redact: (1) the names, addresses,  
               telephone numbers, ethnicity, religion, or any other  
               identifying information of any person or institution,  
               other than the county or the department of social  
                                                                       




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               services, that is mentioned in the documents listed in  
               those documents; (2) any information that would, after  
               consultation with the district attorney, jeopardize a  
               criminal investigation or proceeding; and (3) any  
               information that is confidential or privileged or  
               subject to non-disclosure pursuant to any other state  
                                                                   or federal law.

               There were concerns raised about protecting  
               confidential information contained in the case files  
               that relate to other than another child, and what  
               effect this bill would have on the privacy interests  
               of the persons to whom the information pertain.  Under  
               current  827(a)(2), the juvenile case file is  
               presumed to be accessible and information therein must  
               be released when requested, except in two cases: (1)  
               information about another child may be redacted; and  
               (2) the presiding judge may issue an order limiting or  
               prohibiting disclosure only upon a showing of  
               detriment to another child who is directly or  
               indirectly connected to the deceased child's juvenile  
               case file.  Thus, only information about another child  
               is absolutely protected by  827(a)(2), and no  
               "balancing" of interests occurs in this scenario.

               Under SB 39, information about third parties other  
               than another child who may be directly or indirectly  
               connected to the juvenile case of the deceased child  
               could be protected by redaction of their personally  
               identifying information prior to release of the  
               information by the county welfare agency (custodian of  
               records).

               A person whose name and the fact that she has HIV are  
               found in the deceased child's juvenile case file has  
               only one recourse both under existing law and under  
               this bill (provided having HIV was not a factor in the  
               child's death): redaction of his or her name from the  
               file before it is released.  

               The ability to redact confidential, privileged, or  
               other information not subject to disclosure pursuant  
               to law from the file would go a long way to appease  
               those concerned that the turnover of documents by the  
               custodian of records would expose well-guarded private  
                                                                       




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               information, or that unnecessary inquiries by the  
               media or by nosy neighbors would get in the way of the  
               work they have to do.

            e.    Notice to counsel for children in juvenile case  
            files; objection by petition
             
               SB 39 would require the custodian of records of the  
               county welfare agency's juvenile case files, upon  
               receipt of the request for the administrative release  
               of the records in a juvenile case file, to serve a  
               copy of the request on counsel for the children  
               (including the deceased child's) who are identified in  
               those documents.  If counsel objects, including the  
               custodian of records, to the request, they may  
               petition the court in the same manner as an objection  
               to a petition under  827(a)(2) may be made.

          4.    Court petition and noticed hearing for all other  
            documents in juvenile case file

             SB 39 also would require the agency that maintains the  
            records (county welfare agency, usually) to compile a log  
            identifying, with particularity, all remaining documents  
            contained in the juvenile case file.  This log would be  
            produced along with the documents disclosed in Comments  
            3a and 3b.  The Department of Social Services would be  
            directed to prescribe forms for this purpose.

            For these remaining records, SB 39 would establish a  
            procedure for review by the court prior to disclosure.   
            This procedure is described in detail on page 4 of this  
            analysis and is proposed as the new  827(a)(2)(D).



          5.    Other  827(2)(a)  "fixes"

             Proponents of SB 39 raised some concerns about the  
            "ambiguities" in the current language of  827(a)(2) [the  
            deceased child exception to non-disclosure of juvenile  
            case files] and the resulting variances in interpretation  
            and implementation by courts in different counties.  To  
            provide more clarity, several provisions are being  
            amended into SB 39 that would:
                                                                       




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            (a) clarify that where a presiding judge is considering  
            limiting or prohibiting                           access  
            to a juvenile case file, a showing that release of the  
            information is                                     
            detrimental to the well-being of another child must be  
            made by                                            
            preponderance of evidence;

            (b) affirm that  827(a)(2) represents a presumption in  
            favor of release of                                
            documents when a child is deceased, unless statutory  
            grounds for                                        
            redaction or limitation or prohibition of the release of  
            information exist;

            (c)  that no balancing of interests is called for under   
            827(a)(2) except where  the interests of another child is  
            involved; and

            (d) establish clearly the procedure for a court petition  
            to obtain other records                 not available  
            through the administrative release contemplated in  
            Comment 3, including an expedited procedure when no  
            objection has                           been filed, and  
            the procedure for obtaining an expedited appellate review  
                                                    of an adverse  
            court ruling.

          6.    Supporters' arguments and opponents' earlier concerns

             The Sacramento Branch of the NAACP supports SB 39 and  
            argues why changes in the way information about a child  
            who died as a result of abuse or neglect are needed:

               By every objective measure, Californians are  
               failing in our moral responsibility to these  
               children [who are removed from their parents by  
               state and county authorities] and the most poignant  
               example of this failure is how we currently deal  
               with the tragedy of those children who die -  
               sometimes brutally die - while under our custody.

               So shrouded in secrecy are the deaths of our  
               children that we do not even have an accurate and  
                                                                       




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               reliable count of how many die each year due to the  
               same kind of abuse and neglect that prompted us to  
               remove the child from the care of its parents in  
               the first place.

               SB 39 does not allow the disclosure of any  
               information that is not already susceptible to  
               public disclosure?The problem [the bill] seeks to  
               fix is this: as current law is being applied, only  
               institutions or people of wealth who can afford to  
               pay for a protracted litigation can actually obtain  
               such information.  This wealth barrier effectively  
               blocks access to nonprofits, community groups, even  
               some relatives, who want answers to the most basic  
               questions to ensure their moral obligations is  
               being fulfilled, questions that every citizen ought  
               to be able to ascertain answers to about how their  
               tax-funded governments are operating.  Questions  
               such as: Why did the child die?  How? Could the  
               child's death and suffering have been prevented?  
               Are our state and county governments...doing what  
               they can?to ensure that such a death will never be  
               repeated?...

            The Service Employees International Union, California  
            State Council, opposes the measure because it does not go  
            far enough in protecting "very sensitive and personal  
            information" about third parties in the juvenile case  
            files.  "Although this measure provides that certain  
            information would be redacted, [disclosure of very  
            sensitive and personal information] could lead to  
            unwarranted and inappropriate exposure for individuals  
            connected to the child.  The mere striking out of names  
            and contact information does not seem sufficient,  
            especially when identities would be readily apparent in  
            small communities or high-profile cases."

            SB 39 would allow redaction of more than just names and  
            contact information.  It would allow redaction of  
            information that would be confidential or privileged  
            under other state or federal statutes.  Lastly, the  
            Legislature made its intent clear when it enacted   
            827(a)(2):  when a child dies from abuse or neglect, the  
            need for public access to the juvenile case file is  
            presumed and records will be released unless statutorily  
                                                                       




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            prohibited or limited and the court orders otherwise.

            SEIU's objections were made prior to the author's  
            amendments being offered in committee.  It is not known  
            whether their concerns have been addressed fully or not.

            The County Welfare Directors of California originally  
            opposed SB 39, but with the amendments to be offered by  
            the author in Committee, it has moved its position to  
            "support."







          Support: County Welfare Directors Association of California  
                 (CWDA); California Nurses Association; National  
                 Association for the Advancement of Colored People  
                 (NAACP) 

          Opposition:  SEIU
           
                                    HISTORY
           
          Source:  Children's Advocacy Institute and National Center  
          for Youth Law

          Related Pending Legislation: AB 1299 (Fuller) would amend   
                                827(a)(1) to allow members of  
                                multidisciplinary teams engaged in  
                                the prevention and treatment of child  
                                abuse to inspect juvenile case files.

          Prior Legislation: SB 199 (Polanco, Ch.984, Stats. 1999)  
          See Background

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