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

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Date Published: 02/25/2021 09:00 PM
AB268:v98#DOCUMENT

Revised  April 07, 2021
Amended  IN  Assembly  February 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 268


Introduced by Assembly Member Irwin
(Coauthor: Assembly Member Bauer-Kahan)

January 15, 2021


An act to add Section 27523 to the Government Code, relating to privacy. amend Section 130 of the Code of Civil Procedure, relating to court records.


LEGISLATIVE COUNSEL'S DIGEST


AB 268, as amended, Irwin. Coroners and medical examiners. Courts: sealing records: autopsy reports.
Existing law requires a court to seal the autopsy report and evidence associated with the examination of the victim, upon request of a qualifying family member, when a child was 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 court. Existing law defines “qualifying family member” for this purpose as a biological or adoptive parent, spouse, or legal guardian.
This bill would require the court, upon the request of a qualifying family member, to seal the autopsy report and any evidence associated with the examination of a person who was killed as a result of a criminal act when the above conditions apply or when a prosecutorial agency has concluded all persons who could have been prosecuted for the criminal act have died. The bill would also include within the definition of “qualifying family member” the victim’s next of kin, personal representative, child, grandparent, grandchild, sibling, or domestic partner.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.

Existing law sets forth the duties and authority of a county coroner. Existing law authorizes a county board of supervisors, by ordinance, to abolish the office of coroner and provide instead for the office of medical examiner, to be appointed by the board and to exercise the powers and perform the duties of the coroner.

This bill would, except as provided, prohibit the disclosure of any report of death, autopsy report, investigation summary, toxicology report, coroner’s register, file or other record, working paper, or note relating to a postmortem examination or autopsy of a decedent. The bill would allow disclosure to, among others, the decedent’s next of kin, personal representative, parent, child, grandparent, grandchild, sibling, spouse, or domestic partner if certain evidence of identity is provided, including a declaration under penalty of perjury. By expanding the scope of the crime of perjury, this bill would create a state-mandated local program.

Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

This bill would make legislative findings to that effect.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

The people of the State of California do enact as follows:


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 court, upon the request of a qualifying family member of the deceased child, the court, upon the request of a qualifying family 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 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 which 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, 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 under 18 years of age” “person who was killed as a result of a criminal act” does not include any child a person under 18 years of 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, 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.
SECTION 1.Section 27523 is added to the Government Code, to read:
27523.

(a)Notwithstanding any other law, except as provided in subdivision (c), any report of death, autopsy report, investigation summary, toxicology report, coroner’s register, file or other record, working paper, or note relating to a postmortem examination or autopsy of a decedent is confidential and shall not be disclosed except as follows:

(1)To a district attorney or any criminal justice agency, as defined in subdivision (a) of Section 13101 of the Penal Code, with jurisdiction over an investigation of the death, a public defender or attorney representing a defendant in a criminal action or proceeding that relates to the death of the decedent, upon request or as otherwise required by law.

(2)To the following persons, upon request, after completion of a criminal investigation and any subsequent prosecution:

(A)The decedent’s next of kin, personal representative, parent, child, grandparent, grandchild, sibling, spouse, or domestic partner if all of the following are provided to verify identity:

(i)A declaration under penalty of perjury that the individual is the personal representative, parent, child, grandparent, grandchild, sibling, spouse, or domestic partner of the decedent.

(ii)A valid form of identification.

(iii)A death certificate.

(B)A child or elder fatality review panel established pursuant to law.

(C)A physician and surgeon who treated the decedent immediately before death.

(D)Upon proof that the decedent was covered by a policy issued by an insurance company, an authorized representative of that insurance company or any workers’ compensation or other similar program that provides death benefits when an employee dies from a work-related injury or illness.

(E)An authorized representative of the Division of Occupational Safety and Health, the Food and Drug Administration, the National Transportation Safety Board, the Occupational Safety and Health Administration of the United States Department of Labor, or other federal or state agency with authority to investigate a death resulting from the decedent’s type of injury or illness.

(3)Pursuant to a court order following a finding of good cause.

(b)Notwithstanding subdivision (a), a coroner or medical examiner shall make public, upon request, the following information:

(1)The name, age, gender, and race of the decedent.

(2)The date and place of death.

(3)The cause and manner of death.

(c)This section shall not apply to the making or dissemination of a copy, reproduction, or facsimile of any kind of a photograph, negative, or print, including instant photographs and video recordings, of the body, or any portion of the body, of a deceased person, taken by or for a coroner or medical examiner at the scene of death or in the course of a postmortem examination or autopsy, as governed by Section 129 of the Code of Civil Procedure.

(d)A coroner or medical examiner shall not be personally liable for monetary damages in a civil action for any act or omission in compliance with this section.

SEC. 2.

The Legislature finds and declares that Section 1 of this act, which adds Section 27523 to the Government Code, 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 decedent’s families avoid additional trauma and privacy violations.

SEC. 3.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

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REVISIONS:
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