BILL ANALYSIS
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UNFINISHED BUSINESS
Bill No: SB 5
Author: Hollingsworth (R)
Amended: 8/19/10
Vote: 27 - Urgency
SENATE VOTES ON SB 982 (HOLLINGSWORTH) :
SENATE JUDICIARY COMMITTEE : 4-0, 7/15/10
AYES: Corbett, Hancock, Leno, Walters
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : 8-1, 8/9/10
AYES: Kehoe, Alquist, Ashburn, Corbett, Leno, Price,
Wolk, Wyland
NOES: Yee
NO VOTE RECORDED: Emmerson, Walters
SENATE FLOOR : 29-1, 8/11/10
AYES: Aanestad, Alquist, Ashburn, Cogdill, Corbett,
Correa, Denham, DeSaulnier, Dutton, Emmerson, Florez,
Hancock, Harman, Hollingsworth, Huff, Kehoe, Leno,
Liu, Lowenthal, Negrete McLeod, Padilla, Price,
Romero, Runner, Steinberg, Strickland, Wolk, Wright,
Wyland
NOES: Yee
NO VOTE RECORDED: Calderon, Cedillo, Ducheny, Oropeza,
Pavley, Simitian, Walters, Wiggins, Vacancy, Vacancy
SUBJECT : Deceased Child Victims Protection and Privacy
Act
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SOURCE : San Diego County District Attorney
DIGEST : The provisions of this bill dealing with bomb
technicians, authored by Senator Maldonado were deleted in
the Assembly. This bill is now identical to SB 982
(Hollingsworth) which passed the Senate (29-1, see vote
above) on August 11, 2010, and has been held at the
Assembly Desk.
This bill 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 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.
ANALYSIS : Existing law provides, under the Public
Records Act (PRA), that public records of state and local
agencies are open to inspection, unless exempt. (Section
6250 et seq. of the Government Code [GOV]) 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 or personal privacy." (GOV 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. (GOV Section 6254(f))
Existing law provides that public records may be exempt
from disclosure by express provisions of state or federal
law. (GOV 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. (GOV Section 6255)
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Existing law, the California Constitution, 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.
(Article 1, Section 3 of the California Constitution)
Existing law, the California Constitution, provides that,
among other rights, all people have an inalienable right to
pursue and obtain privacy. (Article 1, Section 1 of the
California Constitution)
Existing law, the California Constitution, 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.
(Article 1, Section 28(b)(1) of the California
Constitution)
Existing case law provides that coroner and autopsy reports
are public records and may be exempt from disclosure under
GOV 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))
Existing case law provides that the intent of the PRA is to
hold government accountable while still protecting
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)
Existing law 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
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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. (Section 129 of the Code
of Civil Procedure)
This bill 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:
1. To law enforcement, prosecutorial agencies and experts
hired by those agencies, public social services
agencies, or child death review teams to be used solely
for investigative, prosecutorial, or review purposes and
not disseminated further.
2. 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.
3. 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.
This bill specifies that nothing in these provisions
prohibit the use of autopsy reports and evidence in
relation to court proceedings.
This bill 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
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that family member under the bill's provisions shall be
removed.
This bill 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:
1. 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.
2. At the hearing, the court must consider (a) the
interests of all qualifying family members; (b) the
protection of the memory of the deceased child; (c) any
evidence that the qualifying family member requesting
the seal was involved in the crime that resulted in the
death of the child; (d) the public interest in scrutiny
of the autopsy report or the performance of the medical
examiner; (e) any impact that unsealing would have on
pending investigations or pending litigation; and (f)
any other relevant factors.
3. 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.
4. 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;
5. 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
GOV Section 6254(f) because it is an investigative file.
In that instance, nothing in the bill shall preclude
the application of GOV Sections 6258 and 6259.
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This bill 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.
This bill 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.
This bill 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.
This bill specifies that nothing in the bill shall prohibit
the use of autopsy reports and evidence in relation to
court proceedings.
This bill 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 GOV Section 6254(f) which permits insurers to
obtain information for claims purposes.
This bill 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.
This bill contains the following definitions:
1. A "child who is under 18 years of age" does not include
any child who comes within either of the following
descriptions: (a) he/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/her
death, or (b) he/she was residing in a state or county
juvenile facility, or a private facility under contract
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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.
2. "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.
3. "Qualifying family member" means the biological or
adoptive parent, spouse, or legal guardian.
This bill 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.
This bill contains a severability clause and various
legislative findings and declarations.
Existing law governs criminal discovery. (Section 1054 et
seq. of the Penal Code [PEN])
This bill states that nothing in the bill shall limit the
discovery provisions set forth in PEN Section 1054 et seq.
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)
This bill 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
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under case law, statutory law, or Rules of Court.
Background
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
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Major Provisions 2010-11 2011-12 2012-13 Fund
Mandate: county coroners Unlikely to be a
reimbursable mandate General
and/or medical examiners Likely very minor, if
reimbursable
Court actions Likely very minor workload
increaseGeneral*
* Trial Courts Trust Fund
SUPPORT : (Verified 8/27/10)
San Diego County District Attorney (source)
California District Attorneys Association
OPPOSITION : (Verified 8/27/10)
California Broadcasters Association
California Newspaper Publishers Association
California Public Defenders Association (unless amended)
ARGUMENTS IN SUPPORT : The author writes:
"SB 982 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. This Act
would not affect the dissemination of the reports to law
enforcement agents or prosecutors [or defendants or civil
litigants under] state and federal discovery [laws].
"Currently there is no law which allows family members to
protect their privacy or the privacy of a loved one by
requesting that [autopsy reports] be sealed. While an
investigative agency can decide not to disclose such
information, that decision is left to each individual
agency. Decisions by the agencies are frequently
challenged in the courts and through the media and other
groups. This law will give the victim's family the right
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to seal the information from unnecessary disclosure while
still protecting the ability to access such documents
when legally necessary.
"Thousands of Californians are murdered each year, a
statistic that has remained steady for over 30 years.
The emotional pain suffered by the families of these lost
victims is unimaginable. That pain is relived through
criminal proceedings, which serve as a troubling reminder
of the suffering that loved ones endured before their
lives were taken. No document is more telling of the
specific nature of a victim's injuries than the autopsy
report crafted by a Medical Examiner. For the family of
a crime victim, the writing and diagrams contain the
details of a loved one's last experiences in this world.
While criminal proceedings and certain civil actions may
require the use of such documents to satisfy the needs of
a particular suit, there is no such compelling interest
in public production and distribution of these
documents."
ARGUMENTS IN OPPOSITION : The California Newspaper
Publishers Association (CNPA) writes that while permitting
specified individuals to request that the autopsy report
and associated evidence be unsealed "is absolutely
necessary to protect the public from the unintended
consequences of allowing private individuals with private
agendas to make public record access decisions on behalf of
the state, it is, in its current form, nonetheless
indefensible. ? persons besides qualifying family members
could have information that the qualifying family member
who requested the sealing was somehow involved in the
crime." CNPA continues with the following scenario:
A mother of a child for years ignores and takes active
steps to cover up the routine beating, molestation or
mistreatment of her child at the hands of her boyfriend,
who is ultimately convicted in connection with the
child's death. She does such a good job of it, the
situation never reaches the eyes and ears of child
protective services. Immediately after conviction, a
plea deal-no public trial, she requests sealing of the
autopsy records as a means to protect herself from
further official scrutiny. No qualifying family members
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exist to object to the request. Her best friend, though,
or her neighbor, or her employer, or an enterprising
newspaper, have identified substantial evidence that
implicates the mother in the child's death. Under SB
982, none of these people would be able to crack open the
courtroom door, let alone make a pitch for public
disclosure in the interests of justice. At a minimum, SB
982 should be amended to allow access to the courts to
anyone with information about the crime to argue, on the
facts of the case, that the public interest in disclosure
clearly outweighs the public interest in nondisclosure.
RJG:mw 8/27/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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