AN ACT CONCERNING ACCESS TO RECORDS OF THE DEPARTMENT OF CHILDREN AND FAMILIES.

AN ACT CONCERNING ACCESS TO RECORDS OF THE DEPARTMENT OF CHILDREN AND FAMILIES.

This bill authorizes the Department of Children and Families (DCF) commissioner to refuse to disclose any record that she currently must disclose. Existing law specifies many officials and entities to whom DCF must disclose information that would otherwise be confidential, in most cases stating the limited uses the recipients can make of the information. It also lists people and entities with whom DCF may share information when the commissioner or designee determines this is in the best interests of the person who is the subject of the record. Otherwise, in general, DCF cannot disclose information it creates or obtains in connection with its child protection or other activities related to a child under age 16 (or under the bill, under age 18) while that child is in its care or custody without (1) obtaining permission from the subject of the record or an authorized representative or (2) legal authorization to do so without the subject's consent.

The bill adds additional officials and entities to both the mandatory and discretionary disclosure lists and eliminates the requirements that the commissioner determine a discretionary disclosure is in a person's best interests and that she promptly disclose the requested documents. It also makes some disclosures that are mandatory under current law discretionary and others that are currently discretionary, mandatory. The bill also makes changes in current disclosure procedures that limit the use recipients can make of disclosed records. And it modifies remedies when it refuses to disclose requested documents.

Under existing law, unchanged by the bill, the penalty for unauthorized disclosure of DCF records is punishable by a fine of up to $ 1,000, imprisonment for up to one year, or both.

The bill revises, updates, and reorganizes the Department of Children and Families' (DCF) confidential records law. Under the bill, DCF must disclose records without the subject's consent to the following, which are not entitled to disclosure under current law:

1. DCF foster care and adoption contractors, for the purpose of identifying and assessing potential placements for the child who is the subject of the record, so long as no information that identifies biological parents is disclosed without their consent;

2. foster or prospective adoptive parents, but only records relating to social, medical, psychological, or educational needs of children currently placed with them or being considered for placement, and so long as no information that identifies biological parents is disclosed without their consent;

3. employees of the Board of Pardons and Parole, Department of Correction, or Judicial Branch, for the purposes of assessing treatment needs and determining terms or conditions of pretrial release, pretrial or post disposition detention, or incarceration, probation, or parole;

4. employees of the Department of Mental Health and Addiction Services, for the purpose of treatment planning for young adults who have transitioned from DCF care;

5. private counsel retained to represent DCF during the course of a legal proceeding involving the department or a DCF employee;

6. Superior Court judges in criminal prosecutions, for purposes of an in camera review if (a) the court has ordered that it be given the record or (b) a party to the proceeding has subpoenaed the record;

7. the child advocate or designee;

8. a state or federal law enforcement officers, for purposes of investigating an allegation of abuse or neglect (current law includes local law enforcement officers and does not limit the use of the information);

9. a provider of professional services for a child or youth or parent referred to the provider, provided disclosure is limited to the information necessary to provide services to a child or parent;

10. judges and parties in probate custody cases;

11. the Human Services Committee, when requested in writing in the course of the committee's official functions and upon a majority vote of its members (the Judiciary and Children's committees already have this authority);

12. the Auditors of public accounts;

13. employees of the Department of Developmental Services, for purposes of eligibility and enrollment of clients in its voluntary services program;

14. courts or public agencies in other states and federally recognized Indian tribes responsible for child protection or to provide services to families involved in the child welfare system; and

15. agencies of a state or a federally recognized tribe that is responsible for investigating or protecting children at risk of abuse or neglect (current law is permissive, does not include tribes, and disclosure is limited to the purpose of investigating a child abuse case ).

The bill also expressly authorizes disclosure to any DCF employee for any purpose reasonably related to the department's business.

Under the bill, DCF is permitted to disclose records without the subject's consent to:

1. people it interviews in abuse and neglect investigations who are not otherwise entitled to this information, but disclosure is limited to the (a) general nature of the allegations, (b) child's identity, (c) alleged perpetrator, and (d) information necessary to further the course of the investigation;

2. people attempting to locate a missing parent or child, but disclosure is limited to information that assists them in doing so;

3. courts of competent jurisdiction, when a DCF employee has been subpoenaed to testify about the record's contents; and

4. people not employed by DCF who arrange, perform, or assist in performing functions or activities on DCF's behalf, including data analysis, processing, aggregation, or administration; utilization review; quality assurance; practice management; consultation; and accreditation services.

It also makes mandatory disclosures to the following permissive in the following circumstances: (1) anyone, when the information or findings concern an incident of abuse or neglect that resulted in a child or youth fatality or near fatality, provided disclosure is in general terms and does not jeopardize a pending investigation and (2) local law enforcement officers.

Currently, the name of a person who has reported child abuse or neglect cannot be disclosed without his or her written consent except to:

The bill extends confidentiality protections to those who cooperate with an investigation.

Current law does not limit the use a law enforcement agency can make of records DCF discloses to it. The bill specifies that disclosure is for the limited purpose of investigating cases of suspected child abuse. It also gives DCF the discretion to disclose records to police and prosecutors when the department has reasonable cause to believe that a child is the victim of criminal abuse or neglect.

The bill also restricts prosecutors' access to juvenile delinquency records. Current law gives prosecutors access to records for the purpose of investigating or prosecuting child abuse or neglect allegations. Under the bill, access to records concerning a delinquency defendant who is not being charged with an offense related to child abuse is permitted only (1) if the defendant signs a release and (2) while the case is being prosecuted.

Under current law, the DCF commissioner can refuse to disclose a record to the person who is its subject when she determines that disclosure is not in the person (or representative's) best interests, so long as she gives her reasons in writing and advises the person that he or she may challenge this action in court. Under the bill, her authority to refuse to disclose extends to anyone who requested information and basis for doing so is no longer restricted to considerations of the requestor's best interests. When she refuses a request, the bill requires that she notify the requestor of the general nature of the records being withheld, in addition to providing her reasons and notice of judicial review options.

The bill also expands the reasons courts may use to uphold DCF's non-disclosure decisions. Currently, after a hearing and private review of the challenged records, the court must order disclosure unless it determines this could be contrary to the requestor or requestor representative's best interests. Under the bill, the court may also uphold the commission's non-disclosure decision when it determines that disclosure (1) would be contrary to the best interests of the person who is the subject of the record, (2) could reasonably result in the risk of harm to any person, or (3) would contravene the state's public policy.

The bill eliminates the authority of a parent whose parental rights have been terminated to view that child's records or give consent to their disclosure. It gives a child's current guardian ad litem (a person representing a child's best interests) access to the child's records and authority to allow disclosure. Currently only the child's attorney, parent, guardian, or conservator can authorize disclosure of the contents of the child's records.

Currently, DCF records must be disclosed to parties in custody matters involving abuse or neglect allegations. Under the bill, disclosure extends to all types of custody cases, including divorce, but only to necessary parties and judges.

Current law prohibits information that is disclosed from a person's record from being further disclosed without consent unless it is disclosed pursuant to an order issued by a court in which a criminal prosecution or an abuse, neglect, commitment, or termination of parental rights proceeding involving the record's subject is pending. The bill permits further disclosure based on an order issued by any court of competent jurisdiction.

The bill permits parties to civil litigation to petition the juvenile court for an order authorizing disclosure to other parties in the litigation. The court can grant the order after reviewing the records in question and determining that the records are material and relevant and that good cause for disclosure exists. It specifies that “good cause” includes situations in which the party seeking the record has no other available means of to obtaining the information.