Senate File 291 H-1367 Amend Senate File 291, as passed by the Senate, as 1 follows: 2 1. By striking everything after the enacting clause 3 and inserting: 4 < Section 1. Section 228.6, subsection 4, Code 2011, 5 is amended to read as follows: 6 4. a. Mental health information may be disclosed 7 in a civil or administrative proceeding in which 8 an individual eighteen years of age or older or an 9 individual’s legal representative or, in the case of 10 a deceased individual, a party claiming or defending 11 through a beneficiary of the individual, offers the 12 individual’s mental or emotional condition as an 13 element of a claim or a defense. 14 b. An alleged victim’s mental health information 15 may be disclosed in a criminal proceeding pursuant to 16 section 622.10, subsection 3A. 17 Sec. 2. Section 622.10, Code 2011, is amended by 18 adding the following new subsection: 19 NEW SUBSECTION . 3A. a. Except as otherwise 20 provided in this subsection, the confidentiality 21 privilege under this section shall be absolute with 22 regard to a criminal action and this subsection shall 23 not be construed to authorize or require the disclosure 24 of any privileged records to a defendant in a criminal 25 action unless either of the following occur: 26 (1) The privilege holder voluntarily waives the 27 confidentiality privilege. 28 (2) (a) The defendant seeking access to an alleged 29 victim’s privileged records under this subsection 30 files a motion with the court demonstrating a good 31 faith factual basis that the records sought contain 32 evidence relevant to the defendant’s innocence. The 33 motion shall set forth specific facts establishing 34 a reasonable probability the records sought contain 35 exculpatory evidence tending to create a reasonable 36 doubt as to the defendant’s guilt. The motion shall 37 also request the court to issue a subpoena requiring 38 the custodian of the records to produce the records 39 sought by the defendant under seal of the court. Such 40 a motion shall be filed not later than forty days after 41 arraignment. Failure of the defendant to timely file 42 such a motion constitutes a waiver of the right to seek 43 access to records under this subsection, except that 44 the court, for good cause shown, may grant relief from 45 such waiver. 46 (b) Within three working days of the filing of 47 the motion pursuant to subparagraph division (a), 48 the county attorney shall notify the alleged victim 49 that the defendant has made a request for the alleged 50 -1- SF291.1541 (2) 84 rh/rj 1/ 3 #1.

victim’s privileged records and shall, after conferring 1 with the alleged victim, provide the court with an 2 affidavit signed by the alleged victim stating that 3 the alleged victim either consents to or opposes the 4 disclosure of the records. If the alleged victim 5 consents to the disclosure, the court shall issue a 6 subpoena for the records to be produced under seal 7 of the court. If the alleged victim opposes the 8 disclosure, the court shall hold a hearing within ten 9 days of the filing of defendant’s motion pursuant to 10 subparagraph division (a) to determine if a reasonable 11 probability exists that the records contain exculpatory 12 evidence tending to create a reasonable doubt as to the 13 defendant’s guilt. 14 (c) If, after the hearing, the court determines 15 a reasonable probability exists that the privileged 16 records sought by the defendant contain exculpatory 17 evidence tending to create a reasonable doubt as to the 18 defendant’s guilt, the court shall immediately issue 19 a subpoena for the records to be produced under seal 20 of the court. 21 (d) The defendant’s attorney shall have the right 22 to inspect any privileged records produced pursuant to 23 the subpoena at the courthouse. However, prior to any 24 such inspection, the court shall issue a protective 25 order containing stringent nondisclosure provisions 26 prohibiting any attorney or county attorney who is 27 allowed to inspect or review the records under this 28 subsection from copying, disclosing, or disseminating 29 the information contained in the records to any person, 30 including the defendant, unless otherwise authorized in 31 this subsection or by the court. 32 (e) After the defendant’s attorney has had the 33 opportunity to review and identify the specific 34 privileged records the defendant’s attorney believes 35 contain exculpatory evidence, the defendant’s attorney 36 shall file a motion under seal of the court designating 37 the specific records requested, summarizing the alleged 38 exculpatory evidence contained therein, and requesting 39 that the matter be set for hearing. Prior to the 40 hearing, the county attorney may review the designated 41 records at the courthouse, subject to the protective 42 order entered by the court pursuant to subparagraph 43 division (d). 44 (f) Within seven days of the filing of the 45 defendant’s motion under subparagraph division (e), 46 the court shall hold a hearing to determine if the 47 designated privileged records contain exculpatory 48 evidence. The court shall give notice of the hearing 49 to the defendant’s attorney and the county attorney. 50 -2- SF291.1541 (2) 84 rh/rj 2/ 3

If the court determines the designated records contain 1 exculpatory evidence, the court shall provide a copy of 2 any such records to the defendant’s attorney and to the 3 county attorney. Prior to providing these records to 4 the defendant’s attorney and the county attorney, the 5 court shall order that all nonexculpatory matters in 6 the records provided be redacted prior to the records 7 being removed from the courthouse and, unless otherwise 8 provided by the court, the records shall continue to be 9 subject to the protective order entered by the court 10 pursuant to subparagraph division (d). 11 (g) Before the defendant’s attorney or the county 12 attorney may disclose the privileged records to a 13 third party, including potential expert witnesses, the 14 defendant’s attorney or the county attorney shall first 15 obtain an order from the court allowing such disclosure 16 and requiring the person to whom the records are to be 17 disclosed be bound to the same nondisclosure provisions 18 imposed on the attorneys. A copy of the protective 19 order shall be given to the third party when the party 20 receives copies of the records. 21 b. The determination of whether either information 22 contained in the privileged records released pursuant 23 to this subsection or the privileged records themselves 24 meet the requirements for admission at trial under the 25 rules of evidence is a separate determination that the 26 court shall make at trial or in a ruling on a motion in 27 limine. If the court ultimately determines the records 28 are admissible, the court shall consider alternatives 29 to the introduction of the records as proffered, 30 which may include stipulations by the parties or the 31 introduction of redacted portions of the records. 32 c. Information derived from privileged records 33 obtained by any means other than as provided in 34 paragraph “a” shall not be admissible in any criminal 35 action. 36 d. All privileged records produced under seal 37 of the court pursuant to this subsection shall be 38 preserved for purposes of appeal. Upon completion of 39 the appeal, all persons who have copies of the records 40 shall destroy such copies and certify to the court that 41 the records in their possession have been destroyed. 42 Sec. 3. EFFECTIVE UPON ENACTMENT. This Act, being 43 deemed of immediate importance, takes effect upon 44 enactment. > 45 ______________________________ WOLFE of Clinton -3- SF291.1541 (2) 84 rh/rj 3/ 3