BILL ANALYSIS Ó
AB 1352
Page 1
Date of Hearing: April 23, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1352 (Levine) - As Amended: April 1, 2013
SUBJECT : Court Records: Destruction of records
KEY ISSUE : Should TRIAL Court RECORD RETENTION PROVISIONS BE
UPDATED AND in some cases reduced, TO ALLOW COURTS TO MANAGE
COURT RECORDS MORE COST-EFFECTIVELY AND REDUCE STORAGE COSTS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Sponsored by the Judicial Council of California, this bill seeks
to update the trial courts' record retention rules to permit the
earlier destruction of some court records and, thereby, reduce
storage costs. In 2010, the Legislature helped modernize the
courts' management of records by allowing trial courts to
create, maintain and preserve records in a variety of forms,
including electronic. (AB 1926 (Evans), Chap. 167, Stats.
2010.) This bill seeks to further reduce costs and create
greater efficiencies by allowing trial courts to destroy certain
court records earlier than is permitted today. According to the
Judicial Council, this bill "will allow courts to efficiently
and effectively manage court records and ensure that courts are
not burdened by excessive record storage costs in this time of
severe budget reductions to court operations which jeopardize
access to justice for all Californians." There is no reported
opposition to this bill.
SUMMARY : Revises requirements for the destruction of court
records. Specifically, this bill :
1)Allows a court clerk to certify a copy of a trial court record
by electronic or other technological means, provided the means
reasonably ensures that the certified copy is a true and
correct copy of the original record.
2)Allows a trial court clerk to destroy court records, as
provided, with reduction in record retention rules for the
following documents:
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a) Civil actions: mental health records;
b) Probate: certain probate, conservatorship and
guardianship records; and
c) Criminal actions: certain felony, misdemeanor and
infraction records.
EXISTING LAW :
1)Provides that trial courts may create, maintain, and preserve
court records, other than court reporter's transcripts, in any
form of communication, including paper, optical, electronic,
magnetic, micrographic media, or other technology, if the form
satisfies rules adopted by the Judicial Council, as specified.
(Government Code Section 68150(a). Unless stated otherwise,
all further statutory references are to that code.)
2)Requires the Judicial Council to establish standards and
guidelines for the creation, maintenance, reproduction, or
preservation of court records. Requires these to ensure that
court records are created and maintained in a manner that
ensures accuracy and preserves the integrity of the records,
protects the records against loss, ensures preservation for
the required period of time, and ensures that electronic
documents are publicly accessible and reproducible. Requires
a court record that is created, maintained, preserved, or
reproduced under this section to be stored in a manner and
place that reasonably ensures its preservation against loss,
theft, defacement, or destruction for the prescribed retention
period prescribed by statute. (Section 68150(c), (h).)
3)Prescribes the manner by which court records may be destroyed
after proper notice and of the passing of the prescribed
statutory retention period. Allows for the extension of the
retention period for court records by order of the court or by
application of a party or interested member of the public for
good cause shown. (Sections 68152 and 68513.)
COMMENTS : This bill, sponsored by the Judicial Council, revises
trial court record retention requirements. According to the
author, many court records today are kept for years beyond their
useful period and, as a result, trial courts are forced to
devote a substantial amount of time and resources to the storage
and maintenance of unnecessary court records. According to a
2007 Judicial Council survey, court records were stored in 276
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locations around the state, totaling almost 2 million linear
feet. The costs associated with managing those records, as of
2006-07, were almost $22 million, with $15 million of that
devoted to staff costs. The author believes that the revisions
proposed by this bill will "allow courts to efficient and
effectively manage court records and reduce unnecessary storage
costs."
Prior Legislation Helped Streamline Record Retention Process :
AB 1926 (Evans), Chap. 167, Stats. 2010, sought to modernize the
maintenance of trial court records by allowing courts to
create, maintain, and preserve court records electronically or
in any form of communication, if the form satisfies rules
adopted by the Judicial Council. Documents electronically
signed, subscribed, or verified have the same validity and legal
force and effect as paper documents. It was anticipated that it
would be far cheaper to maintain electronic records as opposed
to paper copies. Despite this legislation providing the process
for converting paper records to electronic records, large
quantities of paper records still exists and, the Judicial
Council reports that it is prohibitively expense to convert
these records to electronic form. Thus the Council is now
seeking to update trial court record retention rules to allow
some records to be destroyed sooner than is permissible under
existing law and, thus, save storage and record management
costs.
Specific Changes Proposed by This Bill : This bill streamlines
and, in some cases, shortens the retention period of specific
court records. Originally, the Judicial Council proposed to
reduce record retention rules for many more court records,
including family and juvenile law records, as well as protective
and restraining orders. However, because of concerns raised
during the public comment period, the Judicial Council chose to
limit its requested changes. As a result, many retention
provisions remain unchanged or virtually unchanged. These
include time periods for retaining records in unlimited and
limited civil cases, as well as family law, civil protective and
restraining orders, adoption, parentage, name and gender change,
real property and unlawful detainers, wills, misdemeanors and
infractions.
However, the bill reduces the retention period for other court
records. Specifically, this bill makes the following changes:
AB 1352
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--------------------------------------------------------------
| Type of | Current Retention | Proposed Retention |
| Action/Document | Period | Period |
--------------------------------------------------------------
---------------------------------------------------------------
| |
| CIVIL |
---------------------------------------------------------------
--------------------------------------------------------------
|Mental Health |30 years |10 years: Lanterman |
| | |Developmental |
| | |Disabilities |
| | |Services Act |
| | | |
| | |20 years: |
| | |Lanterman-Petris-Sho|
| | |rt Act |
| | | |
| | |20 years after the |
| | |later of the |
| | |capacity |
| | |determination order |
| | |or the retention |
| | |date for court |
| | |records related to |
| | |any underlying |
| | |involuntary |
| | |treatment or |
| | |commitment |
| | |proceeding: |
| | |Capacity hearings |
--------------------------------------------------------------
---------------------------------------------------------------
| |
| PROBATE |
---------------------------------------------------------------
|--------------------+--------------------+--------------------|
|Probate Records, |Permanent |Five years after |
|Excluding | |final disposition |
|Judgments, Orders, | |of the estate |
|Wills, Codicils, | |proceeding |
|Inventories and | | |
|Appraisals | | |
|--------------------+--------------------+--------------------|
|Substitutes for |10 years |Permanent: |
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|Decedent Estate | |Affidavit for small |
|Administration | |value real |
| | |property, |
| | |inventories and |
| | |appraisals from |
| | |proceedings to |
| | |determine |
| | |succession to |
| | |property |
| | | |
| | |Five years |
| | |following final |
| | |disposition of |
| | |proceeding: Other |
| | |records from |
| | |proceeding for |
| | |determining |
| | |succession to |
| | |property |
--------------------------------------------------------------
|Conservatorship |10 years |Permanent: Court |
| | |orders |
| | | |
| | |5 years after |
| | |disposition or |
| | |death: Other |
| | |conservatorship |
| | |records |
--------------------------------------------------------------
|Guardianships |10 years after 18 |Permanent: Court |
| |years of age |orders |
| | | |
| | |5 years after the |
| | |later of (1) final |
| | |disposition; or (2) |
| | |ward turns 23 or |
| | |dies: Other records |
--------------------------------------------------------------
| Type of | Current Retention | Proposed Retention |
| Action/Document | Period | Period |
|--------------------+--------------------+--------------------|
|Trusts |No comparable |Permanent: Trusts, |
| |provision; treated |trust litigation |
| |like a civil record |records and |
| |- 10 years |court-supervised |
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| | |testamentary trusts |
| | | |
--------------------------------------------------------------
---------------------------------------------------------------
| |
| CRIMINAL |
---------------------------------------------------------------
--------------------------------------------------------------
|Death Penalty |Permanent: If |Permanent: Records |
| |prosecution seeks |in capital felony |
| |the death penalty |cases in which the |
| | |defendant is |
| | |sentenced to death, |
| | |and in any felony |
| | |resulting in a |
| | |sentence of life or |
| | |life without the |
| | |possibility of |
| | |parole |
| | | |
| | |10 years: If a |
| | |capital felony is |
| | |disposed of by |
| | |acquittal |
| | | |
| | |50 years or for 10 |
| | |years after the |
| | |defendant's death: |
| | |If a capital felony |
| | |is disposed of by a |
| | |sentence less than |
| | |death, life, or |
| | |life without |
| | |possibility of |
| | |parole |
--------------------------------------------------------------
|Other Felonies and |75 years |Permanent: |
|Registered Sex | |Judgments |
|Offender | | |
|Misdemeanors | |50 years or the |
| | |maximum term of the |
| | |sentence, whichever |
| | |is longer, or 10 |
| | |years after the |
| | |defendant's death: |
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| | |Other records |
--------------------------------------------------------------
|Felony Reduced to |No comparable |In accord with |
|Misdemeanor |provision, treated |relevant |
| |like felony |misdemeanor rules |
--------------------------------------------------------------
|Dismissed Criminal |No comparable |3 years: Felony |
|Cases |provision, treated |charge is dismissed |
| |like underlying | |
| |criminal case | |
| |record |1 year: Misdemeanor |
| | |charge is dismissed |
--------------------------------------------------------------
|Infractions |Three years |1 year |
|--------------------+--------------------+--------------------|
|Parking Infractions |Two years |Eliminates the |
| | |current two-year |
| | |retention period |
--------------------------------------------------------------
---------------------------------------------------------------
| |
| OTHER |
---------------------------------------------------------------
--------------------------------------------------------------
|Court Orders Not |3 years |1 year |
|Associated With an | | |
|Underlying Case | | |
--------------------------------------------------------------
No concerns have been raised to the Committee about any of these
reduced trial court record retention periods.
ARGUMENTS IN SUPPORT : In support of the bill, the Judicial
Council writes:
Implementation of AB 1352 will allow courts to efficiently
and effectively manage court records and ensure that courts
are not burdened by excessive record storage costs in this
time of severe budget reductions to court operations which
jeopardize access to justice for all Californians while
still preserving the public's access to records when
necessary.
REGISTERED SUPPORT / OPPOSITION :
AB 1352
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Support
Judicial Council of California (sponsor)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334