BILL ANALYSIS
SB 5
Page 1
SENATE THIRD READING
SB 5 (Hollingsworth)
As Amended August 30, 2010
2/3 vote. Urgency
SENATE VOTE : Vote not relevant
PUBLIC SAFETY APPROPRIATIONS
(vote not relevant) (vote not relevant)
JUDICIARY 6-1
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Hagman, Huffman, Knight | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Jones | | |
| | | | |
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SUMMARY : Enacts the Deceased Child Victims' Protection and
Privacy Act (PPA), requiring, upon the request of a biological
or adoptive parent, spouse, or legal guardian of a deceased
minor, the sealing of the autopsy report and evidence associated
with the examination of that minor victim when the minor was a
victim of a crime that caused his/her death and a person has
been convicted and sentenced for committing that crime. This
bill contains specified exceptions and 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
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child immediately prior to death, to be used solely for
investigative, criminal defense, or review purposes,
including review for the purpose of initiating any criminal
or habeas proceeding, and not disseminated further;
b) To the defendant and the defense team, as defined, in
the course of criminal proceedings or related habeas
proceedings to be used solely for investigative and review
purposes and not disseminated further.
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: i) the
interests of all qualifying family members; ii) the
protection of the memory of the deceased child; iii) any
evidence that the qualifying family member requesting the
seal was involved in the crime that resulted in the death
of the child; iv) the public interest in scrutiny of the
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autopsy report or the performance of the medical examiner;
v) any impact that unsealing would have on pending
investigations or pending litigation; and, vi) 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;
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; and,
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.
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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
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: i) he or she is a dependent child of the
juvenile court pursuant to Section 300 of the Welfare and
Institutions Code (WIC) at the time of his or her death, or
abuse of neglect, as defined, led to his or her death;
(ii) 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 pursuant to WIC Section 602 at the
time of his/her 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,
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or Rules of Court.
15) Makes conforming changes and adds chaptering provisions
relating to AB 1844.
FISCAL EFFECT : According to the Senate Appropriations, 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 PRA provides that all public records of state and
local agencies are open to public inspection, unless exempt.
The PRA represents a balance between the right of individuals to
privacy and transparency and openness in government, stating,
"access to information concerning the conduct of the people's
business is a fundamental and necessary right of every person in
this state." This right was further underscored when voters
approved Proposition 59 in 2004, which amended the California
Constitution to provide 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. 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
of access. 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 recent tragic death of Chelsea King in San
Diego County. The sponsor indicates that 22 PRA requests were
made for Chelsea King's autopsy report. While the sponsor
indicates that those PRA requests were denied under existing
provisions of the PRA which allow for nondisclosure of
investigative files, this bill would instead 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 disclosed in certain instances.
In short, while existing law gives an investigating agency
sufficient discretionary power to deny a public record requests
for a minor's autopsy report within one of the existing
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exemptions under PRA, this bill would ensure that such reports,
subject to conditions specified in the bill, would not be
released if a qualified family member - defined as the
biological or adoptive parent, spouse, or legal guardian - had
requested sealing under the provisions of this bill.
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 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. CNPA objects to
giving to private citizens the unilateral power to make a
determination that public records should be closed to public
inspection.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0006815