Legislature(1999 - 2000)
02/17/2000 03:02 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 321 - CONFIDENTIALITY OF CINA HEARINGS & RECORD Number 0258 CHAIRMAN DYSON announced the next order of business as House Bill No. 321, "An Act relating to the confidentiality of investigations, court hearings, and court and public agency information in child in need of aid matters; relating to immunity regarding disclosure of information in child in need of aid matters; amending Rules 3 and 22, Alaska Rules of Child in Need of Aid; and providing for an effective date." The committee took an at-ease from 4:40-4:41 p.m. Number 0131 BRUCE BOTELHO, Attorney General, Department of Law, came forward to present HB 321. He told the committee that approximately two years ago the Governor appointed a task force of eight public and private members to examine Alaska's statutes related to confidentiality and child protection. The mission of that task force was to determine whether these laws appropriately balance the public's interest and right to know about how the child protection system was performing versus the rights of families and children to privacy. A series of meetings were held during 1998-1999 and concluded with a report to the Governor in April 1999. The task force discussions were prompted by a lot of national publicity related to child abuse and the failure of public agencies to adequately respond. TAPE 00-17, SIDE A Number 0011 ATTORNEY GENERAL BOTELHO said during the course of review, the task force looked at the experiences of other states and talked with a variety of individuals representing different perspectives about the need for confidentiality in terms of the impacts on children as opposed to those who would advocate the need to open up the system. The fundamental tension has been between the confidentiality of intimate family matters which should not be a matter of public record and the confidentiality statutes that often times are used not so much in the interest of protecting children, but in the interest in protecting either family adults who are wrongdoers or protecting the very public agencies who have been able to avoid a degree of public scrutiny because of those confidentiality laws. That is the tension the task force attempted to address. ATTORNEY GENERAL BOTELHO reported that the task force suggested that the laws need to be adjusted in a way that would provide for more openness in the system and more accountability to the public. The bill introduced by the Governor on this issue reflects the nature of this struggle: it is important to weigh in on the side of greater openness while respecting the true rights of privacy reflected in the state constitution. ATTORNEY GENERAL BOTELHO explained that the task force divided the types of openness into three areas: 1) Court Proceedings. With limited exceptions, all proceedings involving child protection matters should be open. The exceptions are the initial proceeding should be closed, the subsequent proceeding would be closed if a party has not had the opportunity to obtain legal counsel, or a court could choose to close all or a part of a proceeding so far as necessary to protect the interest of the child. The court would be required to make a specific finding before the proceeding would be closed to avoid the situation of it becoming a blanket order in certain courts, that regardless of the statute, the matter would be closed. 2) Court Records. Those records are today closed. For cases that would be prosecuted or pursued after the enactment of the statute, certain of those records would be made public, but others would remain closed. In essence there would be a confidential record in the court system as well as the public record. A member of the public or press would be able to see what the basic procedure is and what the basic controversy is, but such records as psychological reports would be kept confidential. Children will be better protected in an open atmosphere rather than a closed one. 3) Agency Records. These records would continue to be closed; however, it would not preclude the publication of summaries of reports of harm. If the public wished to view how the state is doing its job, it would be pointed to the public court proceedings and to the records of the court system. Number 0464 ATTORNEY GENERAL BOTELHO concluded there are provisions that would allow in certain circumstances for fair response by the DHSS when certain allegations are raised about how the agency has proceeded in a particular matter. For example, when a parent who has been accused of child abuse raises allegations against the department or when there are criminal matters. He emphasized the debate is simply trying to engage in the question about what the proper balance is between family rights to privacy and the public's right to know and hold its public agencies accountable for the tasks they've been charged with. CHAIRMAN DYSON noted that half of the reports of harm received by the Division of Family and Youth Services end up being unsubstantiated. He expressed his concern of unsubstantiated records staying in the files and becoming part of the public record. Number 0621 ATTORNEY GENERAL BOTELHO answered those records are part of the agency record and would be maintained as confidential. Number 0653 JAN RUTHERDALE, Assistant Attorney General, Human Services Section, Civil Division (Juneau), Department of Law, came forward to answer questions. She agreed that the agency records will remain confidential, but the three areas that can be opened up are very narrow: when there is a child fatality or near fatality; for the fair comment proceedings [when a parent talks publicly about a case], the agency has a discretion to respond, [or when there is a companion criminal case.] ATTORNEY GENERAL BOTELHO noted that it is a federal requirement that the matter of a fatality or near fatality be disclosed. CHAIRMAN DYSON asked if parents under counsel on discovery can get all of the files. Number 0750 MS. RUTHERDALE answered counsel can have access to the records and can share them with the parents, but counsel can't make copies and give them to their clients so they can leave them around. The parents can look at the records to defend themselves but cannot disseminate the information everywhere. REPRESENTATIVE GREEN asked where is this legislation in the process of allowing more information to be publicly available. Number 0820 ATTORNEY GENERAL BOTELHO described this as a pretty radical departure in terms of opening up proceedings. Oregon is the only state that has a process of opening up all of its proceedings, and that is a requirement in the Oregon constitution. The federal government has not challenged that up to this point. Alaska would be on the leading edge in the opening of these proceedings. The largest county in Minnesota embarked last year on opening proceedings similar to Alaska's. For the most part, Alaska is in the forefront. There are other states that are in the same stages of deliberation as Alaska at looking at opening up either proceedings or records in the courts as a means of shedding light on what is happening. CHAIRMAN DYSON asked what does the family, child or society gain aside from shedding light. Number 0905 ATTORNEY GENERAL BOTELHO answered being able to see the frequency and nature of tragedies that are involved in child abuse and neglect and allowing those issues to be seen will heighten the consciousness of the public about the harms that are being incurred. It is an opportunity to see if the society and government have the level of resources to deal with these issues as well as accountability. CHAIRMAN DYSON asked if the publishing of reports annually by DFYS really doesn't get the job done of letting the public know the tragedies that are going on with the children. Number 0988 ATTORNEY GENERAL BOTELHO replied to the contrary. The progress that has happened in the state is a result of the disclosures by the department and by the efforts of the legislature in the last several years; that is making a difference and turning things around. More needs to be done, and this is a step in that direction. It is hard to say whether this will have a dramatic impact on the public. Certainly the more dramatic incidents that make their way to the public will be a lot more accessible this way. He does not suggest that this is some cure-all; it is another step to advance the cause of protecting children in the society. Number 1125 SCOTT CALDER testified via teleconference from Fairbanks. He informed the committee that he has been advocating for more openness in the Division of Family & Youth Services and the Division of Juvenile Justice for many years. He noticed that this bill does not do anything to level the playing field or create a proper balance of power between the individuals who are affected by the department and the important interest of justice that would be served in child protection or other juvenile proceedings. The focus of HB 321 seems to be on massaging public opinion to support the department to the extent that the department would like to do that and when the department would allow it to occur. Parents need to be enabled to find out what is going on with their own children. This is the type of openness that is needed in this system. It is the agency records more than the court records that are the problem. Parents need to know what the agency is doing to them and to their children while it is occurring. MR. CALDER said he doesn't see allowing the department a fair response to public criticism a problem. The members of the public who have been critical of the department over the years are the ones who have been denied the opportunity of fair response or participation on activities related to this. He has noticed a considerable degree of censorship in the media insofar as reporting in a balanced fashion on these problems. No one disputes that child abuse exists, and it's terrible; the problem is the institutions that address child abuse need to be under control so the institutions are not abusive. There needs to be openness to solve that problem, not to make the agency more popular. Number 1364 CHAIRMAN DYSON urged Mr. Calder to fax his additional comments. He told Mr. Calder he would enjoy further discussions about the issues he raised. CHAIRMAN DYSON held open public testimony on HB 321. [HB 321 was heard and held.]
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