BILL ANALYSIS
SB 5
Page 1
Date of Hearing: August 25, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 5 (Hollingsworth) - As Amended: August 19, 2010
As Proposed to be Amended
SENATE VOTE : Not relevant
SUBJECT : DECEASED CHILD VICTIMS' PROTECTION AND PRIVACY ACT
KEY ISSUE : Should the parent or guardian of a murdered child
have the ability to keep autopsy reports of that child exempt
from public inspection, except for specified law enforcement,
investigatory, or litigation purposes?
SYNOPSIS
This bill seeks to protect the privacy and honor the wishes of
parents and guardians of children who have been murdered by
permitting them to prevent the public disclosure of details
drawn from the child's autopsy report. Specifically, this bill
would permit a parent or guardian of a minor who has been
murdered to request that the minor's autopsy report be sealed
and not subject to public inspection. The request could be made
only after there has been a conviction in the case. The bill
carves out a number of exemptions that would permit release of
the report for specified law enforcement, investigatory, and
litigation purposes. In addition, the bill would only apply to
reports held by public agencies as defined in the Public Records
Act, and as such would not affect access to court records. The
bill, which is sponsored by the San Diego County District
Attorney's Office, is partly in response to the high profile
murder case of Chelsea King. In that case, the medical examiner
received 22 public record requests for the autopsy report.
Although the medical examiner denied these requests under an
existing exemption, the sponsor and author contend that this
decision should not be left to the discretion of a public
agency; instead, subject to certain exemptions, this decision
should be made by the parents or guardians who wish to keep the
final images and descriptions of their child secluded from
public exposure, unless it is necessary for law enforcement,
litigation, or related purposes. The bill is opposed by the
California Newspaper Publishers Association, who contend that
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these reports are important public documents for evaluating the
conduct of various public actors. CNPA also contends that this
bill marks the first time that a private citizen has been given
the unilateral right to decide whether or not a public record
will be open to public inspection. The author and sponsor have
agreed to take a number of amendments in this Committee. The
summary and analysis below reflect those proposed amendments.
The amendments do not remove the opposition of the CNPA.
SUMMARY : Enacts the Deceased Child Victims' Protection and
Privacy Act, requiring, upon the request of a biological or
adoptive parent, spouse, or legal guardian of a deceased minor,
the sealing of the autopsy report of that minor if a person
(other than the parent or guardian) has been convicted and
sentenced for committing that crime. This bill contains
specified exceptions that would permit release of the autopsy
report for certain law enforcement, investigatory, and
litigation purposes. The bill also provides that a coroner or
medical examiner shall not be liable for damages in a civil
action for any reasonable act or omission taken in good faith
compliance with the bill. Specifically, this bill :
1)Provides that, when a child under 18 years of age is killed as
a result of a criminal act and a person has been convicted and
sentenced for committing that act, the autopsy report and
evidence associated with the examination of the victim
("associated evidence") in the possession of a public agency
shall, upon the request of a qualifying family member of the
deceased child, be sealed and may not be disclosed except that
an autopsy report and evidence that has been sealed under the
bill could be disclosed to the following:
a) To law enforcement, prosecutorial agencies and experts
hired by those agencies, public social services agencies,
child death review teams, or the hospital that treated the
child immediately prior to death, to be used solely for
investigative, criminal defense, or review purposes and not
disseminated further.
b) To the defendant and the defense team and experts hired
by the defense team in the course of criminal proceedings
or related habeas proceedings to be used solely for
investigative and review purposes and not disseminated
further. Defines "defense team" to include, among other
things, legal assistance projects working on behalf of the
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person accused of murdering the deceased child.
c) To civil litigants in a cause of action related to the
victim's death with a court order upon a showing of good
cause and proper notice to be used solely to pursue the
cause of action and not disseminated further.
2)Specifies that nothing in these provisions prohibit the use of
autopsy reports and evidence in relation to court proceedings.
3)Provides that a qualifying family member who has been charged
with or convicted of any act in furtherance of the victim's
death may not request that the autopsy report and associated
evidence be sealed under the bill. Upon the filing of charges
against a qualifying family member, this bill specifies that
any seal maintained at the request of that family member under
the bill's provisions shall be removed.
4)Provides that if a qualifying family member requests that an
autopsy report and associated evidence be sealed and another
qualifying family member opposes that sealing, the opposing
party may request a hearing before the superior court for a
determination of whether the sealing should be maintained.
This bill provides for the following in relation to such a
hearing:
a) The opposing party must notify all other qualifying
family members, the medical examiner's office, and the
district attorney's office at least 10 court days in
advance of the hearing.
b) At the hearing, the court must consider: 1) the
interests of all qualifying family members; 2) the
protection of the memory of the deceased child; 3) any
evidence that the qualifying family member requesting the
seal was involved in the crime that resulted in the death
of the child; 4) the public interest in scrutiny of the
autopsy report or the performance of the medical examiner;
5) any impact that unsealing would have on pending
investigations or pending litigation; and 6) any other
relevant factors.
c) Official information in the possession of a public
agency necessary to the determination of the hearing shall
be received in camera upon a proper showing.
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d) In its discretion, the court may, to the extent
allowable by law and with good cause shown, restrict the
dissemination of an autopsy report or evidence associated
with the examination of the victim.
e) The ability to oppose the sealing of the autopsy report
or unseal the autopsy report under the bill shall not apply
where a public agency has independently determined that the
autopsy report may not be disclosed pursuant to Government
Code Section 6254(f) because it is an investigative file.
In that instance, nothing in the bill shall preclude the
application of Government Code Sections 6258 and 6259.
5)Provides that a qualifying family member, or biological or
adoptive aunt, uncle, sibling, first cousin, or grandparent of
the deceased child may request that the seal be removed. That
request must be adjudicated in the same manner as provided for
above when a qualifying family member opposes the initial
sealing.
6)Provides that its provisions do not limit public access to
information contained in the death certificate, including:
name; age; gender; race; date, time, and location of death;
name of a physician reporting a death in a hospital; name of
the certifying pathologist; date of certification; burial
information; and cause of death.
7)Provides that when a medical examiner declines a request to
provide a copy of an autopsy report that has been sealed
pursuant to the bill's provisions, the examiner shall cite the
bill's provisions as the reason for the denial.
8)Specifies that nothing in the bill shall prohibit the use of
autopsy reports and evidence in relation to court proceedings.
9)Provides that its provisions do not abrogate the rights of
victims, their authorized representatives, or insurance
carriers to request the release of information pursuant to
Government Code Section 6254(f) which permits insurers to
obtain information for claims purposes.
10)Specifies that a coroner or medical examiner shall not be
liable for damages in a civil action for any reasonable act or
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omission taken in good faith compliance with the bill.
11)Contains the following definitions:
a) "child who is under 18 years of age" does not include
any child who comes within either of the following
descriptions: 1) he or she is a dependent child of the
juvenile court at the at the time of death or whose death
was caused by abuse or neglect, as specified; 2) he or she
was residing in a state or county juvenile facility, or a
private facility under contract with the state or county
for the placement of juveniles, as a ward of the juvenile
court, as specified, at the time of death.
b) "Evidence associated with the examination of the victim"
means any object, writing, diagram, recording, computer
file, photograph, video, DVD, CD, film, digital device, or
other item which was collected during or serves to document
the autopsy of a deceased child.
c) "Qualifying family member" means the biological or
adoptive parent, spouse, or legal guardian.
12)Contains an urgency clause, stating that it is necessary that
the bill take effect immediately in order to prevent, as soon
as possible, autopsy information concerning deceased children
from being made available to the public.
13)States that nothing in the bill shall limit the discovery
provisions set forth in Penal Code Section 1054 et seq.
14)Provides that nothing in the bill shall be construed to limit
the authority of the court to seal records or restrict the
dissemination of an autopsy report or evidence associated with
the examination of the victim under case law, statutory law,
or Rules of Court.
EXISTING LAW :
1)Provides, under the Public Records Act (PRA), that public
records of state and local agencies are open to inspection,
unless exempt. (Government Code Section 6250 et seq.) The
PRA provides that it shall not be construed to require
disclosure of personnel, medical, or similar files, "the
disclosure of which would constitute an unwarranted invasion
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or personal privacy." (Government Code Section 6254(c).)
Records of investigations conducted by any state or local
police agency or investigatory files of those agencies are
also exempt from disclosure. (Government Code Section
6254(f).)
2)Provides that public records may be exempt from disclosure by
express provisions of state or federal law. (Government Code
Section 6254(k).) Existing law provides that an agency shall
justify withholding any record by demonstrating that it is
exempt from disclosure under express provisions of law, as
specified, or that on the facts of the particular case the
public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure.
(Government Code Section 6255.)
3)Provides that the people have the right of access to
information concerning the conduct of the people's business
and, therefore, the writings of public officials and agencies
shall be open to public scrutiny. The California Constitution
also provides that a statute shall be broadly construed if it
furthers the people's right of access and narrowly construed
if it limits that right of access. (California Constitution,
Article 1, Section 3.)
4)Provides that, among other rights, all people have an
inalienable right to pursue and obtain privacy. (California
Constitution, Article 1, Section 1.)
5)Provides that in order to preserve and protect a victim's
rights to justice and due process, a victim shall be entitled
to be treated with fairness and respect for his/her privacy
and dignity, and to be free from intimidation, harassment, and
abuse, throughout the criminal or juvenile justice process.
(California Constitution, Article 1, Section 28(b)(1).)
6)Under existing case law, provides that coroner and autopsy
reports are public records and may be exempt from disclosure
under Government Code Section 6254(f) when they "constitute
investigations of a suspected homicide death." ( Dixon v.
Superior Court , 170 Cal.App.4th 1271; Rev. denied, 2009 Cal.
LEXIS 4729 (May 13, 2009).)
7)Under existing case law, provides that the intent of the PRA
is to hold government accountable while still protecting
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individual privacy. ( Rackauckas v. Superior Court (2002) 104
Cal.App.4th 169; California State University, Fresno
Association v. Superior Court (2001) 90 Cal.App.4th 810.)
8)Prohibits any copy or reproduction to be made of any
photograph, negative, or print, including video recordings, of
the body, or any portion of the body, of a deceased person,
taken by or for the coroner at the scene of death or in the
course of a post mortem examination or autopsy. This
prohibition does not apply to use in a criminal action or
proceeding that relates to the death of that person, or except
as a court permits, by order after good cause has been shown
and after written notification of the request for the court
order has been served to the district attorney, as specified.
(Code of Civil Procedure Section 129.)
9)Under existing case law, provides for a First Amendment right
of access to court proceedings and court records. (See, e.g.,
NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal. 4th
1178; In re Marriage of Burkle (2006) 135 Cal.App.4th 1045,
Rev. denied 2006 Cal. LEXIS 5955 (May 17, 2006).) Existing
Rules of Court, based on that case law, provide that court
records are presumed to be open unless confidentiality is
required by law and specifies procedures for the sealing of
court records in trial and appellate courts. (California
Rules of Court, Rules 2.500, 2.550, 2.551, 8.46.)
FISCAL EFFECT : According to the Senate Appropriations analysis,
unlikely to be a reimbursable mandate for county coroners,
likely very minor costs, if reimbursable, for medical examiners,
and likely very minor workload increase for the Trial Courts
Trust Fund for court actions.
COMMENTS : The California Public Records Act (Government Code
Section 6250 et seq.) provides that all public records of state
and local agencies are open to public inspection, unless an
express statutory exemption applies. Although the PRA
acknowledges that disclosure of public records can sometimes
infringe upon personal privacy rights, the PRA generally creates
a presumption in favor of disclosure because "access to
information concerning the conduct of the people's business is a
fundamental and necessary right of every person in this state."
This emphasis was further emphasized when voters approved
Proposition 59 in 2004, which amended the California
Constitution to provide that the people have the right of access
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to information concerning the conduct of the people's business
and, therefore, the writings of public officials and agencies
(including autopsy reports) shall be open to public scrutiny.
Under Proposition 59, a statute shall be broadly construed if it
furthers the people's right of access and narrowly construed if
it limits that right. Coroner's reports have been deemed to be
public records within the meaning of the PRA and may be exempted
from disclosure in certain instances. ( Dixon v. Superior Court ,
170 Cal.App.4th, 1271; Rev. denied, 2009 Cal. LEXIS 4729 (May
13, 2009).)
This bill, sponsored by the San Diego County District Attorney,
was prompted by the high profile murders of minors Chelsea King
and Amber Dubois, among others. The sponsor indicates that 22
PRA requests were made for Chelsea King's autopsy report. These
requests were ultimately denied by the medical examiner under an
existing PRA exemption that allows an agency to deny access for
any file involving a continuing investigation. (Government Code
Section 6254(f).) However, the sponsor contends that leaving
the decision to disclose to the discretion of the agency means
that these reports could be open to inspection in the future.
This bill would, therefore, provide that autopsy reports and
associated evidence in the possession of a public agency would,
upon the request of certain family members, be sealed and not
open to public inspection unless it was used solely for
specified law enforcement, investigatory, or litigation
purposes.
Existing law already arguably gives an investigating agency
discretionary power to deny a public record request for a
minor's autopsy report if it fits within one of the existing
exemptions under PRA. In addition to the investigatory
exemption relied upon by the medical examiner in the Chelsea
King case, Government Code Section 6254 (c) permits an agency to
deny a request for "personnel, medical, or similar files" if
their disclosure "would constitute an unwarranted invasion of
personal privacy." However, existing law leaves the decision to
deny access pursuant to a statutory exemption to the discretion
of the public agency that holds the record. This bill, on the
other hand, would permit a qualified family member - defined as
the biological or adoptive parent, spouse, or legal guardian -
to shield the autopsy report from public inspection, effectively
supplanting the discretion of the public agency.
Existing law also generally prohibits copying or reproducing a
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photograph or other image of a dead body, or any portion
thereof, if the image was produced by a coroner or as part of an
autopsy. (Code of Civil Procedure Section 129.) However, this
provision would still permit the inspection of those images, and
the prohibition on copying or reproducing does not apply to the
written text of an autopsy report. This bill would prohibit not
only the copying or reproducing of images, but would prohibit
the inspection of the entire report if the qualifying family,
subject to the conditions of this bill, has requested that the
report be sealed and not available for public inspection.
AUTHOR AMENDMENTS : In order to address concerns raised by
Committee staff, the author has agreed to take the following
amendments. These amendments will (1) ensure that the bill will
only affect public agencies as defined by the PRA, and therefore
will not include court records; (2) ensure that pro bono
attorneys and exoneration projects, such as the Innocence
Project, will have access to reports when working on behalf of
the defendant who may have been wrongly convicted; and (3)
clarify that reports will be open to inspection in cases
involving abuse and neglect, as defined in the Welfare &
Institutions Code, whether or not the child was a dependent "at
the time of death."
Specifically, these amendments do the following:
- On page 4 line 11 after "agency" insert:
as defined in Section 6252 of the Government Code
- On page 4 lines 20-21 delete "and experts hired by the
defense team"
- On page 4 line 22 after "investigative," insert:
criminal defense
- On page 4 line 23 after "further" insert:
The "defense team" includes but is not limited to the following:
attorneys, investigators, experts, paralegals, support staff,
interns, students, and state and privately funded legal
assistance projects hired or consulted for the purposes of
investigation, defense, appeal, or writ of habeas corpus on
behalf of the person accused of killing the deceased child
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victim.
- On page 6 line 19 after "death" insert:
or, as determined by subdivision (b) of Section 10850.4(b) of
the Welfare and Institutions Code, abuse or neglect led to his
or her death.
ARGUMENTS IN SUPPORT : According to the author, this bill "will
protect the privacy of the families of murder victims by
allowing them to request that autopsy reports not be subject to
public records act requests. This Act is intended to limit the
unnecessary dissemination of autopsy and private medical
information ? [and] allow families to request that the autopsy
report of the victim be sealed from public inspection." The
author also notes that bill provides reasonable exceptions for
release to law enforcement or when needed as evidence in a court
proceeding. The author and sponsor stress that this bill is
narrowly tailored to apply only to situations in which the child
has been murdered and is not a dependent or ward of the state,
and where a conviction has already been secured.
ARGUMENTS IN OPPOSITION : The California Newspaper Publishers
Association (CNPA) opposes this bill, contending that it could
have unintended consequences, such as permitting an abusive
parent or guardian to escape scrutiny of his or her misconduct
by having the autopsy sealed from further inspection.
Amendments that would prohibit a parent or guardian who either
commits the murder or who has engaged in wrongdoing that
contributes the child's death would be prohibited from invoking
the provisions of this bill, CNPA believes that the bill could
still be subject to abuse if the role of the parent or guardian
had not been brought to light.
More generally, CNPA contends that this bill, even as amended,
"does not respect the public's role in monitoring crime and
justice, nor does it respect the diversity of situations in
which a child's life can be taken at the hands of another, which
circumstances could remain eternally secret." CNPA believes
that "without substantial amendment, the bill will certainly
result in bad outcomes that harm all Californians' interests in
open government and an open and fair justice system."
REGISTERED SUPPORT / OPPOSITION :
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Support
San Diego County District Attorney (sponsor)
California District Attorneys Association
Opposition
California Newspaper Publishers Association
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334