Legislature(2005 - 2006)BUTROVICH 205
02/24/2005 08:30 AM JUDICIARY
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* first hearing in first committee of referral
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SB 84-CHILD PROTECTION CONFIDENTIALITY 9:21:13 AM MS. MARCIE KENNAI, deputy commissioner, Office of Children's Services (OCS), Department of Health and Social Services (DHSS), advised SB 84 proposes new child protection confidentiality legislation that would allow DHSS to provide more information to the public about agency actions surrounding child abuse and neglect cases. The child's privacy would continue to be protected while providing for some disclosure of state agency information. The bill would make OCS more accountable to the public. The state, municipality, officers and employees would be immune from any action for damages based on information that might be disclosed. SB 84 would do four major things: Open all CINA hearings to the public except in certain circumstances · Allow DHSS to release the name and picture of a child in a CINA proceeding for the purposes of achieving permanency · Expand the circumstances under which DHSS is required to share confidential information · Allow DHSS to share confidential information with the public under three circumstances: Parental disclosure Perpetrator charge with abuse or neglect Report of harm resulting in fatality or near fatality 9:25:47 AM States have been debating the pros and cons of relaxing the confidentiality statutes for years. Some pros include increasing public awareness and education of child abuse in general. It would provide for better accountability of staff and of the courts. SENATOR THERRIAULT asked Ms. Kennai how the department would comment once a parent has gone public. MS. KENNAI responded DHSS would respond with discretion and only concerning whether the department acted accordingly. The public deserves to hear how the department acted in certain cases. 9:27:24 AM SENATOR FRENCH asked the section of SB 84 that describes that. CHAIR SEEKINS advised the version before the committee was 24- GS1082/G. MS. KRALY answered it was Section 13. SENATOR FRENCH noted the type of information the department may disclose is in subsection (l). 9:30:13 AM CHAIR SEEKINS asked whether there was a requirement that the department consult with an attorney before disclosing information. MS. KRALY answered Page 8 line 4 contemplates consultation with a prosecuting attorney. CHAIR SEEKINS noted the department could already do that. 9:32:38 AM MS. KRALY clarified Section 13 would allow the DHSS and/or the DOL to respond to allegations and reports of what they have done in direct response to a case. CHAIR SEEKINS asked Ms. Kraly the reason for subsection (l). MS. KRALY advised it was to make sure of a coordinated effort between OCS and the district attorneys office. CHAIR SEEKINS asked whether the department would respond to an interested individual or a neighbor. MS. KRALY said under subsection (n) the statute requires the department to adopt regulations to interpret the duties under the section. There would be a limitation on who could ask for the information and whom the department could reply to. SENATOR HUGGINS asked the definition of "persons of legitimate interest." MS. KENNAI responded the parents and sometimes the press. SENATOR HUGGINS expressed that notification of the press makes him nervous. 9:37:08 AM SENATOR FRENCH asked who has authority within the departments. MS. KENNAI advised the commissioner or commissioner's designee. 9:40:33 AM SENATOR FRENCH asked whether the DHSS and the DOL would be opposed to adding language that identifies the commissioner or the commissioner's designee as the person responsible for disclosing information. MS. KENNAI noted she thought it was already in the bill but couldn't locate it. Chair Seekins announced a brief recess at 9:41:19 AM. Chair Seekins reconvened the meeting at 9:47:36 AM. MS. KENNAI clarified the DHSS has a clear policy on who speaks to media. For purpose of SB 84 she suggested to add verbiage in Section 13 to clarify the commissioner or the commissioner's designee as the person responsible for media communication. CHAIR SEEKINS proposed Amendment 1. Section 13(k), delete "the department", and insert "the commissioner or the commissioner's designee..." Hearing no objections, Amendment 1 was adopted. SENATOR GUESS asked Ms. Kraly to comment on why the bill uses the word "may" instead of "shall" in Section 13(l). 9:49:57 AM MS. KRALY responded the reason is because of differing circumstances. The department wants the ability to keep information out on a case-by-case analysis. 9:51:40 AM SENATOR FRENCH shared the concern of Senator Guess. CHAIR SEEKINS noted the concern was regarding discretionary disclosure. MS. KRALY agreed that made sense. SENATOR GUESS proposed Amendment 2. Section 13 (l)(1) delete "may" and insert "shall..." Hearing no objections, Amendment 2 was adopted. 9:54:26 AM CHAIR SEEKINS proposed Amendment 3. Section 13 (l)(2) delete "may" and insert "shall..." 9:55:51 AM SENATOR THERRIAULT objected and then withdrew his objection. Hearing no further objections, Amendment 3 was adopted. SENATOR THERRIAULT questioned the reason for the verbiage of "non-disclosure" in Section 14. He cited an example of why the department should he held responsible for not notifying someone of important information. CHAIR SEEKINS asked whether Section 14 deals with information requested by individuals. 9:58:05 AM MS. KRALY responded with respect to Section 13, yes. CHAIR SEEKINS said he has no problem indemnifying disclosure or non-disclosure of requested information from people with a substantial interest. SENATOR FRENCH asked the intersection and separation between juvenile delinquency information and CINA information. MS. KRALY said it was an important distinction. The provisions in Section 14 deal with the disclosure or non-disclosure in CINA proceedings under Title 47.10. The juvenile justice process is a separate process governed by separate statutes. There are instances where they do overlap such as when a child in a CINA case is also under custody. If OCS has custody of the child Section 14 would apply for the purpose of the DOL with respect to the juvenile justice process. SB 84 doesn't envision addressing those issues. 10:01:03 AM SENATOR FRENCH asked whether it would be a CINA case in the example of a 16 year old harming a 14 year old. MS. KRALY said probably not. SENATOR FRENCH asked what if it happens in the same household. MS. KRALY noted it would depend on the situation. SENATOR FRENCH expressed concern regarding immunity and total indemnification. 10:04:28 AM MS. KRALY explained in a gross negligence scenario the DOL and DHSS would have a discussion. The grant of authority could be limited so that gross negligence could be excluded from immunity. SENATOR THERRIAULT said there is now complication because of the separation of CINA and the juvenile justice system. He asked the recourse when non-disclosure results in harm. 10:07:15 AM MS. KRALY said the general immunity provisions under Title 9 would provide some level of protection. An employee acting within the scope of their employment would be defended by the state. Currently AS 47.10.093 provides a list of circumstances where the department and its employees can disclose information to a guardian ad litem and to other agencies working with children. The non-disclosure component of the immunity section under Section 14 may be directly related to Section 13 where the committee just amended "may" to "shall." 10:11:17 AM CHAIR SEEKINS said that makes sense. MS. KRALY added now that the bill is changed there is no ability not to disclose so there wouldn't be a non-disclosure issue. MR. SCOTT CALDER testified in opposition of SB 84. 10:12:34 AM MR. CALDER identified two different classes of victims, those who society is trying to help and those created by the DOL and DHSS. People who have been victimized by the department can pin point circumstances of negligence by the department. He suggested the burden should be on the department to decide who has a legitimate interest. A parent absent any criminal priors has the highest need-to-know basis regarding information of their own child. 10:17:39 AM CHAIR SEEKINS asked Mr. Calder his opinion about disclosing information that could interfere with a criminal investigation. MR. CALDER said the interest of the parent to guard the best interest of the child is more important for the well being of society than it is the interest of the department. Most people do the right thing, he said, and it should be important to protect the rights of the majority of the people. 10:21:00 AM MR. CALDER asserted the law should protect innocent people first. 10:23:09 AM MS. LINDA WILSON, deputy director, Alaska Public Defender Agency, said the first part of SB 84 is a significant change to current statute. Eighteen states have open CINA hearings but the majority of states keep them closed. There is a lot of sensitive information disclosed in the court cases and it will require excessive litigation to close the hearings. Witnesses may hesitate to testify due to the open forum. CHAIR SEEKINS held the bill in committee.