BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                              UNFINISHED BUSINESS


          Bill No:  SB 5
          Author:   Hollingsworth (R)
          Amended:  8/30/10
          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

           SENATE FLOOR  :  33-1, 8/30/10 (Concurrence)
          AYES:  Aanestad, Alquist, Ashburn, Blakeslee, Calderon,  
            Cedillo, Cogdill, Correa, Denham, DeSaulnier, Ducheny,  
            Dutton, Emmerson, Florez, Hancock, Harman, Hollingsworth,  
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            Huff, Kehoe, Leno, Liu, Lowenthal, Negrete McLeod,  
            Padilla, Pavley, Price, Romero, Steinberg, Strickland,  
            Walters, Wolk, Wright, Wyland
          NOES:  Yee
          NO VOTE RECORDED:  Corbett, Oropeza, Runner, Simitian,  
            Wiggins, Vacancy

           ASSEMBLY FLOOR  :  71-1, 8/30/10 - See last page for vote


           SUBJECT :    Deceased Child Victims Protection and Privacy  
          Act

           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))   

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          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) 

          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))

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          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  
          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  

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             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  
          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.


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          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.

          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  

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          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  
             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.  

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          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  
          under case law, statutory law, or Rules of Court.

          Provisions of law proposed by AB 1844 (Fletcher), 2009-10  
          Session, requires every sex offender required to register,  
          as specified, to participate in an approved sex offender  
          management program while on parole or formal supervised  
          probation.  AB 1844 requires probation departments and the  
          Department of Corrections and Rehabilitation to enter into  
          contracts with certified sex offender management  
          professionals to provide these programs.
          This bill, contingent on the prior approval of AB 1844,  
          eliminates this contracting requirement and makes other  
          related and conforming changes.
                     
           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  

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          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)

           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)


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          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  
            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  

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            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  
            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.

           ASSEMBLY FLOOR  : 
          AYES:  Adams, Anderson, Arambula, Bass, Beall, Bill  
            Berryhill, Tom Berryhill, Block, Blumenfield, Bradford,  
            Brownley, Buchanan, Caballero, Charles Calderon, Carter,  
            Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,  
            DeVore, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller,  
            Furutani, Gaines, Galgiani, Garrick, Gatto, Gilmore,  

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            Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber,  
            Huffman, Jeffries, Knight, Lieu, Logue, Ma, Mendoza,  
            Miller, Monning, Nestande, Niello, Nielsen, Norby, V.  
            Manuel Perez, Portantino, Ruskin, Salas, Silva, Skinner,  
            Smyth, Solorio, Audra Strickland, Swanson, Torlakson,  
            Torres, Torrico, Tran, Villines, John A. Perez
          NOES:  Ammiano
          NO VOTE RECORDED:  Eng, Jones, Bonnie Lowenthal, Nava,  
            Saldana, Yamada, Vacancy, Vacancy

          RJG:mw  8/31/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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