California law allows parents to seal child autopsy reports

California Gov. Arnold Schwarzenegger signed legislation Monday that allows legal guardians of murdered children to request that autopsy reports and medical records concerning the murder be permanently sealed from public inspection.

The Deceased Child Victims’ Protection and Privacy Act is not intended to limit access to reports by law enforcement agents, prosecutors, defendants or civil litigants under state and federal discovery laws, but it will deny access to reporters and the general public if the child’s parents choose.

The law is intended to protect the privacy of families of murdered children, but critics say it creates an obstacle for journalists working to accurately report crime.

“It sets a bad precedent by allowing a non-governmental third party to control the public’s right to access its records,” said Tom Newton, general counsel with the California Newspaper Publishers Association, which opposed the bill.

Under current law, autopsy reports can be considered investigatory records during an investigation and, thus, exempt from California’s Public Records Act at that time, he said. Coroners and other records custodians have discretion to disclose and often choose not to. When they do disclose “the access allows the public to get a good look at one or more agencies’ behavior associated with an investigation,” he said.

Newton went on to say that photos are already exempt from disclosure and he was not familiar with any instance in which the disclosure of a coroner’s reports resulted in harm.

The law was passed in response to the cases of 14-year-old Amber Dubois and 17-year-old Chelsea King, both residents of southern California, who were raped and murdered by the same man in February 2009 and February 2010, respectively, Newton said.

According to Terry Francke, general counsel for Californians Aware, an organization dedicated to encouraging a free exchange between government and its citizens, there were many requests for the autopsy reports in those cases, but little likelihood that the coroner would release them.

“I think the sealing of these vital documents is a case where emotions seem to trump reason,” said Marjie Lundstrom, a reporter for the Sacramento Bee who relied heavily on autopsy reports for her Pulitzer Prize-winning series that disclosed how hundreds of child abuse-related deaths go undetected each year as a result of errors by medical examiners.

“I get it that there can’t be anything worse for family members than seeing details of your child’s death being exploited by journalists. The thing is: That isn’t what happens most of the time. Most journalists are good, decent people who rely on autopsy reports to tell the story better and more completely,” she said.

“Autopsies are a wealth of information, especially in children’s deaths, and they are very open to interpretation,” she said. “One medical examiner may look at the findings and disagree.” She expressed concerns that sealing reports closed off an avenue for journalistic inquiry into the justice system.

The new law only applies to cases in which a person has been convicted and sentenced for committing a criminal act resulting in the death of a child. The law does not apply if the victim was in foster care or was a dependent of the juvenile court at the time of death. Records also cannot be sealed if abuse or neglect was determined to be the cause of death.

An amendment to the law required that a request to seal reports could only be made by a family member who had no involvement in the child’s death. The law also states that records can become public if they are ever entered as evidence in a trial.

California State Sen. Dennis Hollingsworth, R-San Diego, who sponsored the bill, was not available for comment.