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SB 84: "An Act relating to the confidentiality of investigations, court hearings, and public agency records and information in child-in-need-of-aid matters and certain child protection matters; relating to immunity regarding disclosure of information in child-in-need-of-aid matters and certain child protection matters; amending Rules 3 and 22, Alaska Child in Need of Aid Rules of Procedure; and providing for an effective date."

00                             SENATE BILL NO. 84                                                                          
01 "An Act relating to the confidentiality of investigations, court hearings, and public                                   
02 agency records and information in child-in-need-of-aid matters and certain child                                        
03 protection matters; relating to immunity regarding disclosure of information in child-in-                               
04 need-of-aid matters and certain child protection matters; amending Rules 3 and 22,                                      
05 Alaska Child in Need of Aid Rules of Procedure; and providing for an effective date."                                   
06 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
07    * Section 1.  The uncodified law of the State of Alaska is amended by adding a new section                         
08 to read:                                                                                                                
09       FINDINGS AND INTENT.  (a)  The legislature finds that                                                             
10            (1)  public knowledge of, access to, and oversight of the child protection                                   
11 system in this state are important to the success of and public confidence in that system;                              
12            (2)  records of the child protection system in this state historically have been                             
13 held strictly confidential and not accessible by the public;                                                            
01            (3)  federal law, which provides substantial financing for the child protective                              
02 system in this state, has codified this historical preference for confidentiality of those records;                     
03            (4)  greater access to records and other information about the child protection                              
04 system will allow the public to make more informed judgments about the performance of state                             
05 government agencies responsible for the protection of children in this state;                                           
06            (5)  a limited relaxation of the state confidentiality laws will provide important                           
07 information to the public while ensuring that the privacy rights of the children involved and                           
08 their families are not infringed; and                                                                                   
09            (6)  several states have opened to the public court hearings regarding child                                 
10 protection, without federal financial sanctions being imposed.                                                          
11       (b)  It is the intent of the legislature that this Act is construed to allow wider access to                      
12 the public to hearings of and information about the child protection system                                             
13            (1)  without jeopardizing the receipt of federal money important to the                                      
14 successful operation of that system; and                                                                                
15            (2)  consistent with respect for the important privacy rights of the children                                
16 involved, and their families, recognized in art. I, sec. 22, Constitution of the State of Alaska.                       
17    * Sec. 2.  AS 47.10.070(a) is amended to read:                                                                     
18            (a)  The court may conduct the hearing on the petition in an informal manner.                                
19       The court shall give notice of the hearing to the department, and it may send a                                   
20       representative to the hearing.  The court shall also transmit a copy of the petition to the                       
21       department.  The department shall send notice of the hearing to the persons for whom                              
22       notice is required under AS 47.10.030(b) and to each grandparent of the child entitled                            
23       to notice under AS 47.10.030(d).  The department and the persons to whom the                                      
24       department must send notice of the hearing are entitled to be heard at the hearing.                               
25       Except as provided in (c) of this section, and unless prohibited by federal or state                          
26       statute or regulation, court order, or court rule, a hearing is open to the public                            
27       [HOWEVER, THE COURT MAY LIMIT THE PRESENCE OF THE FOSTER                                                          
28       PARENT OR OTHER OUT-OF-HOME CARE PROVIDER AND OF ANY                                                              
29       GRANDPARENT OF THE CHILD TO THE TIME DURING WHICH THE                                                             
30       PERSON'S TESTIMONY IS BEING GIVEN IF IT IS (1) IN THE BEST INTEREST                                               
31       OF THE CHILD; OR (2) NECESSARY TO PROTECT THE PRIVACY                                                             
01       INTERESTS OF THE PARTIES AND WILL NOT BE DETRIMENTAL TO THE                                                       
02       CHILD.  THE PUBLIC SHALL BE EXCLUDED FROM THE HEARING, BUT                                                        
03       THE COURT, IN ITS DISCRETION, MAY PERMIT INDIVIDUALS TO ATTEND                                                    
04       A HEARING IF THEIR ATTENDANCE IS COMPATIBLE WITH THE BEST                                                         
05       INTERESTS OF THE CHILD].                                                                                          
06    * Sec. 3.  AS 47.10.070 is amended by adding new subsections to read:                                              
07            (c)  Except as provided in (e) of this section, the following hearings in child-in-                          
08       need-of-aid cases are closed to the public:                                                                       
09                 (1)  the initial court hearing after the filing of a petition to commence                               
10       the child-in-need-of-aid case;                                                                                    
11                 (2)  a hearing following the initial hearing in which a parent, child, or                               
12       other party to the case is present but has not had an opportunity to obtain legal                                 
13       representation;                                                                                                   
14                 (3)  a hearing, or a part of a hearing, for which the court issues a written                            
15       order finding that allowing the hearing, or part of the hearing, to be open to the public                         
16       would reasonably be expected to                                                                                   
17                      (A)  stigmatize or be emotionally damaging to a child;                                             
18                      (B)  inhibit a child's testimony in that hearing;                                                  
19                      (C)  disclose matters otherwise required to be kept confidential                                   
20            by state or federal statute or regulation, court order, or court rule; or                                    
21                      (D)  interfere with a criminal investigation or proceeding or a                                    
22            criminal defendant's right to a fair trial in a criminal proceeding; before ruling                           
23            on a request under this subparagraph, the court shall give notice and an                                     
24            opportunity to be heard to the state or a municipal agency that is assigned to                               
25            the criminal investigation or to the prosecuting attorney.                                                   
26            (d)  If a hearing, or part of a hearing, in a child-in-need-of-aid case is not                               
27       closed under (c) of this section, the court shall hear in camera any information offered                          
28       regarding the location, or readily leading to the location, of a parent, child, or other                          
29       party to the case who is a victim of domestic violence.  Access to testimony heard in                             
30       camera under this subsection is limited to the court and authorized court personnel.                              
31            (e)  The grandparents of the child and the foster parents or other out-of-home                               
01       care provider may attend hearings that are otherwise closed to the public under (c) of                            
02       this section.  However, the court shall limit the presence of these persons in a hearing                          
03       closed to the public to the time during which the person's testimony is being given if                            
04       the court determines that such a limitation is necessary under (c)(3) of this section.  In                        
05       this subsection, "out-of-home care provider" means an agency or person, other than                                
06       the child's legal parents, with whom a child who is in the custody of the state under                             
07       AS 47.10.080(c)(1) or (3), 47.10.142, or AS 47.14.100(c) is currently placed; "agency                             
08       or person" includes a foster parent, a relative other than a parent, a person who has                             
09       petitioned for adoption of the child, and a residential child care facility.                                      
10            (f)  Notwithstanding any other provision of this chapter, a person attending a                               
11       hearing open to the public may not disclose a name, picture, or other information that                            
12       would readily lead to the identification of a child who is the subject of the child-in-                           
13       need-of-aid case.  At the beginning of the hearing, the court shall issue an order                                
14       specifying the restrictions necessary to comply with this subsection.  If a person                                
15       violates the order, the court may impose any appropriate sanction, including contempt                             
16       and closure of any further hearings in the case to the person.                                                    
17    * Sec. 4.  AS 47.10.080 is amended by adding a new subsection to read:                                             
18            (t)  A hearing conducted under this section is open to the public unless an                                  
19       exception provided in AS 47.10.070(c) applies to make the hearing closed to the                                   
20       public or unless prohibited by federal or state statute or regulation.                                            
21    * Sec. 5.  AS 47.10.088 is amended by adding a new subsection to read:                                             
22            (l)  A trial or hearing conducted under this section is open to the public unless                            
23       an exception provided in AS 47.10.070(c) applies to make the trial or hearing closed                              
24       to the public.                                                                                                    
25    * Sec. 6.  AS 47.10.090(c) is amended to read:                                                                     
26            (c)  Within 30 days after [OF] the date of a child's [MINOR'S] 18th birthday                         
27       or, if the court retains jurisdiction of a child [MINOR] past the child's [MINOR'S]                       
28       18th birthday, within 30 days after [OF] the date on which the court releases                                 
29       jurisdiction over the child [MINOR], the court shall order all the court's official                           
30       records pertaining to that child [MINOR] in a proceeding under this chapter sealed.  A                        
31       person may not use these sealed records unless authorized by order of [FOR ANY                                
01       PURPOSE EXCEPT THAT] the court upon a finding of [MAY ORDER THEIR                                             
02       USE FOR] good cause [SHOWN].                                                                                      
03    * Sec. 7.  AS 47.10.090(d) is amended to read:                                                                     
04            (d)  Except as provided in AS 47.10.070 and 47.10.080(t), the [THE] name                                 
05       or picture of a child [MINOR] under the jurisdiction of the court may not be made                             
06       public in connection with the child's [MINOR'S] status as a child in need of aid unless                       
07       authorized by order of the court or unless to implement the permanency plan for a                             
08       child after all parental rights of custody have been terminated.  This subsection                             
09       does not prohibit the release of aggregate information for statistical or other                               
10       informational purposes if the identify of any particular person is not revealed by                            
11       the release.                                                                                                  
12    * Sec. 8.  AS 47.10.093(a) is amended to read:                                                                     
13            (a)  Except as specified in AS 47.10.092 and in (b) - (g) and (k) - (n) [(b) -                           
14       (g)] of this section, all information and social records pertaining to a child [MINOR]                        
15       who is subject to this chapter or AS 47.17 prepared by or in the possession of a                                  
16       federal, state, or municipal agency or employee in the discharge of the agency's or                               
17       employee's official duty are privileged and may not be disclosed directly or indirectly                           
18       to anyone without a court order.                                                                                  
19    * Sec. 9.  AS 47.10.093(b) is amended to read:                                                                     
20            (b)  A state or municipal agency or employee shall disclose appropriate                                      
21       confidential information regarding a case to                                                                  
22                 (1)  a guardian ad litem appointed by the court;                                                        
23                 (2)  a person or an agency requested by the department or the child's                                   
24       legal custodian to provide consultation or services for a child who is subject to the                             
25       jurisdiction of the court under AS 47.10.010 as necessary to enable the provision of                              
26       the consultation or services;                                                                                     
27                 (3)  a foster parent [PARENTS] or relative [RELATIVES] with                                 
28       whom the child is placed by the department as [MAY BE] necessary to enable the                                    
29       foster parent [PARENTS] or relative [RELATIVES] to provide appropriate care to                        
30       [FOR] the child [WHO IS THE SUBJECT OF THE CASE], to protect the safety of                                        
31       the child [WHO IS THE SUBJECT OF THE CASE], and to protect the safety and                                         
01       property of family members and visitors of the foster parent [PARENTS] or relative                        
02       [RELATIVES];                                                                                                      
03                 (4)  a school official [OFFICIALS] as [MAY BE] necessary to enable                              
04       the school to provide appropriate counseling and support services to a [THE] child                            
05       who is the subject of the case, to protect the safety of the child [WHO IS THE                                    
06       SUBJECT OF THE CASE], and to protect the safety of school students and staff;                                     
07                 (5)  a governmental agency as [MAY BE] necessary to obtain that                                         
08       agency's assistance for the department in its investigation or to obtain physical custody                         
09       of a child;                                                                                                       
10                 (6)  a law enforcement agency of this state or another jurisdiction as                                  
11       [MAY BE] necessary for the protection of any child or for actions by that agency to                               
12       protect the public safety;                                                                                        
13                 (7)  a member [MEMBERS] of a multidisciplinary child protection                                     
14       team created under AS 47.14.300 as [MAY BE] necessary for the performance of the                              
15       member's [THEIR] duties;                                                                                      
16                 (8)  the state medical examiner under AS 12.65 as [MAY BE]                                              
17       necessary for the performance of the duties of the state medical examiner;                                        
18                 (9)  a person who has made a report of harm as required by                                              
19       AS 47.17.020 to inform the person that the investigation was completed and of action                              
20       taken to protect the child who was the subject of the report; [AND]                                               
21                 (10)  the child support services agency established in AS 25.27.010 as                                  
22       [MAY BE] necessary to establish and collect child support for a child who is a child in                           
23       need of aid under this chapter;                                                                               
24                 (11)  a caregiver of a child or an entity responsible for ensuring the                              
25       safety of children as necessary to protect the safety of a child; and                                         
26                 (12)  a review panel established by the department for the purpose                                  
27       of reviewing the actions taken by the department in a specific case.                                          
28    * Sec. 10.  AS 47.10.093(c) is repealed and reenacted to read:                                                     
29            (c)  A state or municipal law enforcement agency shall disclose information                                  
30       regarding a case that is needed by the person or agency charged with making a                                     
31       preliminary investigation for the information of the court under AS 47.10.020.                                    
01    * Sec. 11.  AS 47.10.093(f) is amended to read:                                                                    
02            (f)  The department may release to a person with a legitimate interest                                       
03       confidential information relating to minors not subject to the jurisdiction of the court                      
04       under AS 47.10.010.  [THE DEPARTMENT SHALL ADOPT REGULATIONS                                                      
05       GOVERNING THE RELEASE OF INFORMATION AND IDENTIFYING A                                                            
06       SUFFICIENT LEGITIMATE INTEREST.]                                                                                  
07    * Sec. 12.  AS 47.10.093(g) is amended to read:                                                                    
08            (g)  The department and affected law enforcement agencies shall work with                                    
09       school districts and private schools to develop procedures for the disclosure of                                  
10       confidential information to a school official [OFFICIALS] under (b)(4) of this                        
11       section.  The procedures must provide a method for informing the principal or the                                 
12       principal's designee of the school that the student attends as soon as it is reasonably                       
13       practicable.                                                                                                      
14    * Sec. 13.  AS 47.10.093 is amended by adding new subsections to read:                                             
15            (k)  The department may disclose to the public, upon request, confidential                                   
16       information, as set out in (l) of this section, when                                                              
17                 (1)  the parent or guardian of a child who is the subject of a report of                                
18       harm under AS 47.17 has made a public disclosure concerning the department's                                      
19       involvement with the family;                                                                                      
20                 (2)  the alleged perpetrator named in a report of harm under AS 47.17                                   
21       has been charged with a crime concerning the alleged abuse or neglect; or                                         
22                 (3)  a report of harm under AS 47.17 has resulted in the fatality or near                               
23       fatality of that child.                                                                                           
24            (l)  The type of information that may be publicly disclosed under (k) of this                                
25       section is information related to the determination, if any, made by the department                               
26       regarding the validity of a report of harm under AS 47.17 of the child and the                                    
27       department's activities arising from the department's investigation of the report.  The                           
28       department                                                                                                        
29                 (1)  may withhold disclosure of the child's name, picture, or other                                     
30       information that would readily lead to the identification of the child if the department                          
31       determines that such a disclosure would be contrary to the best interests of the child,                           
01       the child's siblings, or other children in the child's household; or                                              
02                 (2)  after consultation with a prosecuting attorney, may withhold                                       
03       disclosure of information that would reasonably be expected to interfere with a                                   
04       criminal investigation or proceeding or a criminal defendant's right to a fair trial in a                         
05       criminal proceeding.                                                                                              
06            (m)  Except for a disclosure made under (k) of this section, a person to whom                                
07       disclosure is made under this section may not disclose confidential information about                             
08       the child or the child's family to a person not authorized to receive it.                                         
09            (n)  The department may adopt regulations to implement and interpret its                                     
10       duties under this section, including regulations governing the release of confidential                            
11       information and identifying a sufficient legitimate interest under (f) of this section.                           
12    * Sec. 14.  AS 47.10 is amended by adding a new section to read:                                                   
13            Sec. 47.10.094.  Immunity from liability.  A person may not bring an action                                
14       for damages against the state, a municipality, or state or municipal agencies, officers,                          
15       employees, or agents based on the disclosure or nondisclosure of information in                                   
16       accordance with this chapter.                                                                                     
17    * Sec. 15.  AS 47.10.990 is amended by adding a new paragraph to read:                                           
18                 (28)  "near fatality" means physical injury or other harm, as certified by                              
19       a physician, caused by an act or omission that created a substantial risk of death.                               
20    * Sec. 16.  The uncodified law of the State of Alaska is amended by adding a new section to                        
21 read:                                                                                                                   
22            DIRECT COURT RULE AMENDMENT.  Rule 3(c), Alaska Child in Need of                                             
23       Aid Rules of Procedure, is amended to read:                                                                       
24            (c)  Presence of Grandparent or Foster Parent.  A grandparent of a child                           
25       and the foster parent or other out-of-home care provider are [IS] entitled to be heard                    
26       at any hearing at which the person is present.  However, the court may limit the                                  
27       presence of these persons in a hearing that has been closed to the public under                               
28       subparagraph (f)(2) of this rule [THE FOSTER PARENT OR CARE PROVIDER]                                         
29       to the time during which the person's testimony is being given if the court determines                        
30       that such a limitation is necessary under the circumstances listed in                                         
31       subparagraph (f)(2)(C) of this rule [IT IS (1) IN THE BEST INTEREST OF THE                                    
01       CHILD; OR (2) NECESSARY TO PROTECT THE PRIVACY INTERESTS OF                                                       
02       THE PARTIES AND WILL NOT BE DETRIMENTAL TO THE CHILD].                                                            
03    * Sec. 17.  The uncodified law of the State of Alaska is amended by adding a new section to                        
04 read:                                                                                                                   
05            DIRECT COURT RULE AMENDMENT.  Rule 3(f), Alaska Child in Need of                                             
06       Aid Rules of Procedure, is repealed and reenacted to read:                                                        
07            (f)  General Public Access to Hearings.                                                                    
08                 (1)  Except as provided in (2) of this paragraph, and unless prohibited                                 
09       by federal or state statute or regulation, court order, or other court rule, hearings are                         
10       open to the public.                                                                                               
11                 (2)  The following hearings are closed to the public:                                                   
12                      (A)  the initial court hearing after the filing of a petition that                                 
13            begins the child-in-need-of-aid case;                                                                        
14                      (B)  a hearing following the initial hearing in which a parent,                                    
15            child, or other party to the case is present but has not had an opportunity to                               
16            obtain legal representation;                                                                                 
17                      (C)  a hearing, or a part of a hearing, for which the court issues                                 
18            a written order finding that allowing the hearing, or part of the hearing, to be                             
19            open to the public would reasonably be expected to stigmatize or be                                          
20            emotionally damaging to a child; inhibit a child's testimony in the hearing;                                 
21            disclose matters otherwise required to be kept confidential by state or federal                              
22            statute or regulation, court order, or court rule; or interfere with a criminal                              
23            investigation or proceeding or a criminal defendant's right to a fair trial in a                             
24            criminal proceeding.                                                                                         
25                 (3)  Before ruling on a request under (2)(C) of this paragraph                                          
26       concerning potential interference with a criminal investigation or proceeding, the court                          
27       shall give notice and an opportunity to be heard to the state or a municipal agency that                          
28       is assigned to the criminal investigation or to the prosecuting attorney.                                         
29                 (4)  If the court closes a hearing to the public under (2)(C) of this                                   
30       paragraph, the court shall only close the portions of the hearing necessary to prevent                            
31       the potential harm listed in (2)(C) of this paragraph.  If a hearing, or part of a hearing,                       
01       is open to the public, the court shall hear in camera any information offered regarding                           
02       the location, or readily leading to the location, of a parent, child, or other party to the                       
03       case who is a victim of domestic violence.  Access to testimony heard in camera under                             
04       this subparagraph is limited to the court and authorized court personnel.                                         
05                 (5)  Notwithstanding any other provision of this rule, the court shall                                  
06       issue an order to prohibit all persons in a hearing open to the public from disclosing to                         
07       any person a name, picture, or other information that would readily lead to the                                   
08       identification of a child who is the subject of the proceeding.  If a person violates the                         
09       order, the court may impose any appropriate sanction, including contempt and closure                              
10       of any further hearings in the proceeding to the person.                                                          
11                 (6)  A party to the proceeding may move the court to close to the public                                
12       a hearing, or part of the hearing, to avoid the harm specified in (2)(C) of this                                  
13       paragraph.  A member of the public may request in writing to be served with a motion                              
14       filed under this subparagraph.  If such a request has been filed in advance of the filing                         
15       of the motion, the party filing the motion must also serve the member of the public                               
16       who requested notice under this subparagraph.  The court may waive the service                                    
17       required under this subparagraph to a member of the public if a motion to close the                               
18       hearing, or part of the hearing, is made under this subparagraph immediately before or                            
19       during the hearing and the court finds that                                                                       
20                      (A)  the need for closure was not reasonably foreseeable                                           
21            sufficiently in advance of the hearing to allow for notice;                                                  
22                      (B)  there is good cause not to delay the hearing in order to                                      
23            achieve notice, taking into consideration the age of the child and the potential                             
24            adverse effect that a delay could have on the child; and                                                     
25                      (C)  whatever notice is practicable under the circumstances has                                    
26            occurred.                                                                                                    
27    * Sec. 18.  The uncodified law of the State of Alaska is amended by adding a new section to                        
28 read:                                                                                                                   
29            DIRECT COURT RULE AMENDMENT.  Rule 22(c), Alaska Child in Need                                               
30       of Aid Rules of Procedure, is amended to read:                                                                    
31            (c)  Child's Name or Picture.  The name or picture of a child who is the                                   
01       subject of a CINA proceeding may not be made available to the public unless                                       
02       authorized by court order accompanied by a written statement reciting the                                         
03       circumstances which support such authorization, or unless to implement the                                    
04       permanency plan for the child after all parental rights of custody have been                                  
05       terminated.                                                                                                   
06    * Sec. 19.  The uncodified law of the State of Alaska is amended by adding a new section to                        
07 read:                                                                                                                   
08       APPLICABILITY.  (a)  This Act applies to all proceedings and hearings conducted on                                
09 or after the effective date of secs. 1 - 18 of this Act.                                                                
10       (b)  This Act applies to all information, records, and files created on or after the                              
11 effective date of secs. 1 -18 of this Act; however, if a file contains information and records                          
12 that were created before the effective date of secs. 1 - 18 of this Act, that information and                           
13 those records retain the confidentiality status that they had under the law on the day before the                       
14 effective date of secs. 1 - 18 of this Act.                                                                             
15    * Sec. 20.  The uncodified law of the State of Alaska is amended by adding a new section to                        
16 read:                                                                                                                   
17       TRANSITION:  REGULATIONS.  The Department of Health and Social Services                                           
18 may immediately proceed to adopt regulations necessary to implement the changes made by                                 
19 this Act.  The regulations take effect under AS 44.62 (Administrative Procedure Act), but not                           
20 before the effective date of the statutory changes.                                                                     
21    * Sec. 21.  The uncodified law of the State of Alaska is amended by adding a new section to                        
22 read:                                                                                                                   
23       REPORT.  By December 1, 2006, the governor shall issue a report, including any                                    
24 recommendations for statutory changes, to the public and the legislature on the                                         
25 implementation of this Act.                                                                                             
26    * Sec. 22.  The uncodified law of the State of Alaska is amended by adding a new section to                        
27 read:                                                                                                                   
28       CONDITIONAL EFFECT.  Sections 2 - 7 of this Act take effect only if secs. 16 - 18                                 
29 of this Act receive the two-thirds majority vote of each house required by art. IV, sec. 15,                            
30 Constitution of the State of Alaska.                                                                                    
31    * Sec. 23.  Section 20 of this Act takes effect immediately under AS 01.10.070(c).                                 
01    * Sec. 24.  Except as provided in sec. 23 of this Act, this Act takes effect July 1, 2005.