Amend Senate File 291, as passed by the Senate, as follows:
   1.  By striking everything after the enacting clause and inserting: 
   Section 1.  Section 228.6, subsection 4, Code 2011, is amended to read as follows:
   4.
  a.  Mental health information may be disclosed in a civil or administrative proceeding in which an individual eighteen years of age or older or an individual’s legal representative or, in the case of a deceased individual, a party claiming or defending through a beneficiary of the individual, offers the individual’s mental or emotional condition as an element of a claim or a defense.
   b.  An alleged victim’s mental health information may be disclosed in a criminal proceeding pursuant to section 622.10, subsection 3A.
   Sec. 2.  Section 622.10, Code 2011, is amended by adding the following new subsection:
   NEW SUBSECTION.  3A.
  a.  Except as otherwise provided in this subsection, the confidentiality privilege under this section shall be absolute with regard to a criminal action and this subsection shall not be construed to authorize or require the disclosure of any privileged records to a defendant in a criminal action unless either of the following occur:
   (1)  The privilege holder voluntarily waives the confidentiality privilege.
   (2)
  (a)  The defendant seeking access to an alleged victim’s privileged records under this subsection files a motion with the court demonstrating a good faith factual basis that the records sought contain evidence relevant to the defendant’s innocence. The motion shall set forth specific facts establishing a reasonable probability the records sought contain exculpatory evidence tending to create a reasonable doubt as to the defendant’s guilt. The motion shall also request the court to issue a subpoena requiring the custodian of the records to produce the records sought by the defendant under seal of the court. Such a motion shall be filed not later than forty days after arraignment. Failure of the defendant to timely file such a motion constitutes a waiver of the right to seek access to records under this subsection, except that the court, for good cause shown, may grant relief from such waiver.
   (b)  Within three working days of the filing of the motion pursuant to subparagraph division (a), the county attorney shall notify the alleged victim that the defendant has made a request for the alleged victim’s privileged records and shall, after conferring with the alleged victim, provide the court with an affidavit signed by the alleged victim stating that the alleged victim either consents to or opposes the disclosure of the records. If the alleged victim consents to the disclosure, the court shall issue a subpoena for the records to be produced under seal of the court. If the alleged victim opposes the disclosure, the court shall hold a hearing within ten days of the filing of defendant’s motion pursuant to subparagraph division (a) to determine if a reasonable probability exists that the records contain exculpatory evidence tending to create a reasonable doubt as to the defendant’s guilt.
   (c)  If, after the hearing, the court determines a reasonable probability exists that the privileged records sought by the defendant contain exculpatory evidence tending to create a reasonable doubt as to the defendant’s guilt, the court shall immediately issue a subpoena for the records to be produced under seal of the court.
   (d)  The defendant’s attorney shall have the right to inspect any privileged records produced pursuant to the subpoena at the courthouse. However, prior to any such inspection, the court shall issue a protective order containing stringent nondisclosure provisions prohibiting any attorney or county attorney who is allowed to inspect or review the records under this subsection from copying, disclosing, or disseminating the information contained in the records to any person, including the defendant, unless otherwise authorized in this subsection or by the court.
   (e)  After the defendant’s attorney has had the opportunity to review and identify the specific privileged records the defendant’s attorney believes contain exculpatory evidence, the defendant’s attorney shall file a motion under seal of the court designating the specific records requested, summarizing the alleged exculpatory evidence contained therein, and requesting that the matter be set for hearing. Prior to the hearing, the county attorney may review the designated records at the courthouse, subject to the protective order entered by the court pursuant to subparagraph division (d).
   (f)  Within seven days of the filing of the defendant’s motion under subparagraph division (e), the court shall hold a hearing to determine if the designated privileged records contain exculpatory evidence. The court shall give notice of the hearing to the defendant’s attorney and the county attorney. If the court determines the designated records contain exculpatory evidence, the court shall provide a copy of any such records to the defendant’s attorney and to the county attorney. Prior to providing these records to the defendant’s attorney and the county attorney, the court shall order that all nonexculpatory matters in the records provided be redacted prior to the records being removed from the courthouse and, unless otherwise provided by the court, the records shall continue to be subject to the protective order entered by the court pursuant to subparagraph division (d).
   (g)  Before the defendant’s attorney or the county attorney may disclose the privileged records to a third party, including potential expert witnesses, the defendant’s attorney or the county attorney shall first obtain an order from the court allowing such disclosure and requiring the person to whom the records are to be disclosed be bound to the same nondisclosure provisions imposed on the attorneys. A copy of the protective order shall be given to the third party when the party receives copies of the records.
   b.  The determination of whether either information contained in the privileged records released pursuant to this subsection or the privileged records themselves meet the requirements for admission at trial under the rules of evidence is a separate determination that the court shall make at trial or in a ruling on a motion in limine. If the court ultimately determines the records are admissible, the court shall consider alternatives to the introduction of the records as proffered, which may include stipulations by the parties or the introduction of redacted portions of the records.
   c.  Information derived from privileged records obtained by any means other than as provided in paragraph“a” shall not be admissible in any criminal action.
   d.  All privileged records produced under seal of the court pursuant to this subsection shall be preserved for purposes of appeal. Upon completion of the appeal, all persons who have copies of the records shall destroy such copies and certify to the court that the records in their possession have been destroyed.
   Sec. 3.  EFFECTIVE UPON ENACTMENT.  This Act, being deemed of immediate importance, takes effect upon enactment.>

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WOLFE of Clinton