Judiciary Committee

JOINT FAVORABLE REPORT

Bill No.:

SB-1054

Title:

AN ACT CONCERNING THE DISCLOSURE OF AUTOPSY REPORTS.

Vote Date:

4/15/2011

Vote Action:

Joint Favorable Substitute

PH Date:

2/28/2011

File No.:

727

SPONSORS OF BILL:

Judiciary Committee

REASONS FOR BILL:

Sen. Michael McLachlan was prompted to introduce this bill following the trial of Stephen Hayes, one of the two assailants in the 2007 Cheshire home invasion. During the trial, the autopsy results of two homicide victims, Hayley and Michaela Petit, who were under the age of eighteen at the time of their deaths, was released into the press. Considering the already sensitive and horrific nature of the crimes, releasing this information caused a greater amount of pain and suffering for their family.

Substitute Language: Substitute language no longer amends 19a-411 but amends CGS 1-210 sec. b(3) to add (h) that added to the list of items to be prohibited from release of this information. Testimony at public hearing revealed that this information was being released legally under current Freedom of Information laws by local and state police departments.

RESPONSE FROM ADMINISTRATION/AGENCY:

Dr. H. Wayne Carver, Chief State Medical Examiner: Opposes this legislation. I believe that the proposed legislation is redundant of current statute, regulations and practices. The Office of the Chief Medical Examiner does not now and has never released autopsy reports to the general public, let alone autopsy reports of a pediatric homicide victim.

Autopsy reports can be made available to the general public through three mechanisms:

1 The next of kin elect to voluntarily give their copy of the report to a member of the press or some other entity which would make it broadly available.

2 If an autopsy report is entered into evidence in a trial and there is a conviction, the autopsy report along with all other records entered into evidence is available through the Clerk of the Court.

3 Under separate statutory provisions autopsy reports are available to the general public if the decedent was in the custody of the State at the time of the death.

Michelle S. Cruz, Esq., State Victim Advocate: Supports this bill. The Office of Victim Advocate believes in the concept that the parents of a child who is murdered should have the ability to object to the disclosure of such highly personal information about the death of their child, such as the autopsy report, as long as there are no legitimate reasons for the disclosure to the public. Sadly, there are cases where a relative of a child has been implicated in the death of a child. In those cases, the parent of the deceased child should not have the ability to hide the circumstances of the child's death for their own benefit if and only if there is a legitimate reason for release of the information to the public.

Therefore, the OVA recommends that the proposal be amended to establish a process that places the burden on the requestor of the information. The requestor must articulate a legitimate reason for the disclosure of the requested information based upon a specific and well defined allegation that the disclosure of the information would be in the interest of the public.

Michelle S. Cruz, Esq., State Victim Advocate: Supplemental Statement. During the public hearing and afterwards, there appeared to have been some concerns over how autopsy information is being released. It has been the experience of the Office of the Victim Advocate that during the Freedom of Information Commission hearing, once a document, video, photograph, or the like, is physically placed within a police department or the Department of Public Safety investigative file, that item becomes transformed. For instance, a confidential record of the Office of the Chief Medical Examiner which had been a non-disclosable record, becomes a disclosable “police file” within the meaning of FOIC. As a “police record”, according the practice of the FOIC and their interpretation of their authorizing statutes, “police records” are subject to FOI requests and will, in most instances, be released. The records may include autopsy photographs, crime scene photographs, crime scene photographs depicting murdered crime victims, photographs related to suicides, financial records unrelated to the investigation, cell phone video recordings involving the murder victim. The above mentioned records have been and will continue to be released, until legislation is passed that states otherwise.

Freedom Of Information Commission: Opposes this bill. The FOIC is sympathetic to the purpose behind this bill. However, the Commission has some concerns about the proposed language, and suggest that there are already adequate safeguards built into current law to protect against abuse.

The proposed bill gives the parent of a child homicide victim the sole authority to decide whether the Chief Medical Examiner may disclose the results of his or her examination and investigation of death, including the autopsy report and other scientific findings.

1 Current law already prohibits almost all disclosure of medical examiner's reports and findings

2 Under current law, the general public, including the media can obtain the medical examiner's reports only if the deceased died in state custody .

3 Other than reports concerning a person who died in state custody, disclosure by the medical examiners is extremely limited.

The Medical Examiner or the state's attorney may seek a court order from the superior court to block disclosure of any part of the medical examiner's report, in any situation, even where the deceased was in state custody, or where a person has a legitimate interest, is a researcher, or a defense attorney or a defendant.

Under the proposed bill, a parent can veto the Chief Medical Examiner's decision, and can black any disclosure, even without a court order. As proposed, a parent could block disclosure even if the parent is the accused. As proposed, if a child dies in the custody of the state, a parent could block disclosure of the medical examiner's reports. If the parental rights were terminated, and the child was a ward of the state, could the state (as loco parentis) then block disclosure? What happens if the child's parents disagree as to whether the reports should be disclosed?

The FOIC believes that the current law strikes an effective balance between the public interest in the records of the Office of the Chief Medical Examiner and the privacy concerns of the parents.

NATURE AND SOURCES OF SUPPORT:

William A. Petit, Jr. Supports this bill. The loss of a child is perhaps the severest loss any parent can face. If that loss is due to homicide, the loss and grieving are compounded by the very nature of our public judicial system, which is not at debate here. However once a child homicide case has been completed I am asking that you protect the victim's family's psychological well-being and grieving process by not allowing the public disclosure of the autopsy report to the public unless there is an over-riding legitimate legal reason for such a disclosure to be made.

I believe as a matter of general practice the Chief Medical Examiner's office has done an excellent job over the years of refusing inappropriate requests and kept these records sealed after a child killer has been convicted and sentenced.

The Victim Advocate Michelle Cruz has suggested some friendly amendment language to deal with specific situations, and I feel that these additions to the statute will help you further fulfill your fiduciary responsibility to protect the right of crime victims under the Connecticut
Constitution and also provide support for the Chief Medical Examiner
's Office in dealing with difficult legal situations. I believe these amendments would not undermine public oversight of the criminal justice system but importantly protect the dignity of child murder victims and their surviving family members.

Michael A. McLachlan, State Senator: Supports this bill. As legislators we have a duty to protect the most vulnerable members of our society, such as our children. Currently, parents have rights regarding the medical records of their children. They are able to release those records or keep them private. Autopsies by definition are medical procedures. With this, the same rights should apply to autopsy results as they do to medical records. This bill would simply grant parents the right to protect information about their children.

What happened to Haley and Michaela Petit is a disturbing glimpse into true evil. Sadly, our society perpetuated that evil when we allowed the press to put their autopsy results on the front pages of our newspapers, on the internet and on daily news broadcasts.

Leonard A. Fasano, State Senator: Supports this bill. The horrific last moments of the life of a murdered child should not be fodder for public consumption. I do realize that the public right to know is an important piece of a free society, and that any law infringing on that right

should be carefully crafted and scrutinized. However, the public right to know pales in comparison to the added suffering that a murder victim's family faces when private details of their child are aired and publicized.

I recognize that a blanket prohibition on releasing these records may be untenable, but I would urge that the standard that a person requesting release of the report must prove is substantial – that the public purpose and benefit of releasing the information significantly outweigh the right to privacy of the family.

NATURE AND SOURCES OF OPPOSITION:

Claude Albert, Legislative Chair, Connecticut Council on Freedom of Information: Opposes this bill. The most undesirable public-policy consequence of the proposal is that it could limit public examination of the killing of a child that takes place when the victim is in state custody. Any homicide is a profound tragedy for the victim and to those close to the victim, but it is also an offense against society as a whole, and the public has a compelling interest in seeing that justice is done. That interest is compounded when the homicide takes place under the protective mantle of the state. The public should be allowed to fully inspect the performance of those who act in its name in such circumstances.

The bill also gives immediate rise to a number of questions. Could a parent who might be accused in the death of his or her child block public disclosure? Could the state block disclosure in the death of a child who dies in state custody?

We believe the present law already provides strong privacy protections, and we urge the legislature not to adopt the present bill.

Reported by: George Marinelli

Date: May 6, 2011