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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+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 83(JUD) Out of Committee
Heard & Held
             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                                                               
   · 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                                                               
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-                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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.                                                                                       

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