Today's Law As Amended


PDF |Add To My Favorites |Track Bill | print page

AB-268 Courts: sealing records: autopsy reports.(2021-2022)



As Amends the Law Today


SECTION 1.

 Section 130 of the Code of Civil Procedure is amended to read:

130.
 (a) (1)  Subject to the provisions of this section, when a child who is under 18 years of age is killed as a result of a criminal act and a person has been convicted and sentenced for the commission of that criminal act, or a person has been found to have committed that offense by the juvenile court and adjudged a ward of the juvenile  the  court, upon the request of a qualifying family member of the deceased child, the  member, shall seal and not disclose the  autopsy report and evidence associated with the examination of the victim in the possession of a public agency, as defined in Section 6252 of the Government Code, shall be sealed and not disclosed, except that an autopsy report and evidence associated with the examination of the victim which has been sealed pursuant to this section may be disclosed, as follows: when the victim is killed as a result of a criminal act and any of the following apply:  
(A) A person has been convicted and sentenced for the commission of that act.
(B) A person has been found to have committed the offense by the juvenile court and adjudged a ward of the juvenile court.
(C) The prosecutorial agency has concluded all persons who could have been prosecuted for the criminal act have died.
(2) Notwithstanding paragraph (1), an autopsy report and evidence associated with the examination of the victim that has been sealed pursuant to this section may be disclosed, as follows:
(1) (A)  To law enforcement, prosecutorial agencies and experts hired by those agencies, public social service agencies, child death review teams, or the hospital that treated the child person  immediately prior to death, to be used solely for investigative, prosecutorial, or review purposes, and may not be disseminated further.
(2) (B)  To the defendant and the defense team in the course of criminal proceedings or related habeas proceedings, to be used solely for investigative, criminal defense, and review purposes, including review for the purpose of initiating any a  criminal proceeding or related habeas proceeding, and may not be disseminated further. The “defense team” includes, but is not limited to, all of 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  victim.
(3) (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 under Section 129, to be used solely to pursue the cause of action, and may not be disseminated further.
(b) Nothing in this section shall  This section does not  prohibit the use of autopsy reports and evidence in relation to court proceedings.
(c) Nothing in this section shall  This section does not  abrogate the rights of victims, their authorized representatives, or insurance carriers to request the release of information pursuant to subdivision (f) of Section 6254 of the Government Code. However, if a seal has been requested, an insurance carrier receiving items pursuant to a request under that subdivision is prohibited from disclosing the requested items except as necessary in the normal course of business. An insurance carrier shall not, under any circumstances, disclose to the general public items received pursuant to subdivision (f) of Section 6254 of the Government Code.
(d) This section may not be invoked by a qualifying family member who has been charged with with,  or convicted of any of, an  act in furtherance of the victim’s death. Upon the filing of those charges against a qualifying family member, any a  seal maintained at the request of that qualifying family member under this section shall be removed.
(e) 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 in compliance with this section.
(f) If sealing of the autopsy report has been requested by a qualifying family member and another qualifying family member opposes sealing, the opposing party may request a hearing in the superior court in the county with jurisdiction over the crime leading to the child’s person’s  death for a determination of whether the sealing should be maintained. The opposing party shall notify all other qualifying family members, the medical examiner’s office that conducted the autopsy, and the district attorney’s office with jurisdiction over the crime at least 10 court days in advance of the hearing. At the hearing, the court shall consider the interests of all qualifying family members, the protection of the memory of the deceased child, person,  any evidence that the qualifying family member requesting the seal was involved in the crime that resulted in the death of the child, the  death, the  public interest in scrutiny of the autopsy report or the performance of the medical examiner, any impact that unsealing would have on pending investigations or pending litigation, and any other relevant factors. 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. 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 a victim. This section shall not apply if a public agency has independently determined that the autopsy report may not be disclosed pursuant to subdivision (f) of Section 6254 of the Government Code because it is an investigative file. In that instance, nothing in  this section shall not  preclude the application of Sections 6258 and 6259 of the Government Code.
(g) If a seal has been maintained pursuant to this section, a qualifying family member, or a biological or adoptive aunt, uncle, sibling, first cousin, child, or grandparent of the deceased child  member  may request that the seal be removed. The request to remove the seal shall be adjudicated pursuant to subdivision (f), with the party requesting the removal of the seal being the opposing party.
(h) Nothing in this section shall  This section does not  limit the public access to information contained in the death certificate including: certificate, including  name, age, gender, race, date, time and location of death, the name of a physician reporting a death in a hospital, the name of the certifying pathologist, date of certification, burial information, and cause of death.
(i) When a medical examiner declines a request to provide a copy of an autopsy report that has been sealed pursuant to this section, the examiner shall cite this section as the reason for declining to provide a copy of the report.
(j) For purposes of this section:
(1) A “child who is  “person who was killed as a result of a criminal act” does not include a person  under 18 years of age” does not include any child  age  who comes within either of the following descriptions:
(A) He or she  The person  was a dependent child of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code at the time of his or her  death, or, pursuant to subdivision (b) of Section 10850.4 of the Welfare and Institutions Code, abuse or neglect is determined to have led to his or her  the person’s  death.
(B) He or she  The person  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 Section 602 of the Welfare and Institutions Code at the time of his or her  death.
(2) “Evidence associated with the examination of a victim” means any object, writing, diagram, recording, computer file, photograph, video, DVD, CD, film, digital device, or other item that was collected during, or serves to document, the autopsy of a deceased child. person. 
(3) “Qualifying family member” means the next of kin, personal representative,  biological or adoptive parent, spouse,  child, grandparent, grandchild, sibling, spouse, domestic partner,  or legal guardian.
(k) Nothing in this section shall  This section does not  limit the discovery provisions set forth in Chapter 10 (commencing with Section 1054) of Title 6 of the Penal Code.
(l) Nothing in this section shall be construed to  This section does not  limit the authority of the court to seal records or restrict the dissemination of an autopsy report or evidence associated with the examination of a victim under case law, other statutory law, or the rules of court.
(m) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SEC. 2.
 The Legislature finds and declares that Section 1 of this act, which amends Section 130 of the Code of Civil Procedure, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
Protecting the confidentiality of a decedent’s autopsy records will help the decedent’s family avoid additional trauma and privacy violations.