Legislature(2005 - 2006)BUTROVICH 205

03/03/2005 08:30 AM JUDICIARY

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09:01:46 AM Start
09:01:46 AM SB84
10:02:59 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSSB 84(JUD) Out of Committee
             SB 84-CHILD PROTECTION CONFIDENTIALITY                                                                         
9:01:46 AM                                                                                                                    
CHAIR SEEKINS  announced SB 84  to be  up for review.  He advised                                                               
the  committee  there  is  a  new fiscal  note  from  the  Public                                                               
Defenders Agency. He  announced that Dianne Olson was  on line to                                                               
answer questions,  and clarified  the committee was  working from                                                               
version \Y.                                                                                                                     
9:03:41 AM                                                                                                                    
CHAIR SEEKINS  asked Senator  French if he  wanted to  propose an                                                               
SENATOR FRENCH  advised after talking  to the Department  of Law,                                                               
he learned there  are good reasons to have the  file closed after                                                               
the  open  court  proceedings. He  agreed  with  Senator  Guess's                                                               
previous suggestion  to provide  a sunset  so that  the committee                                                               
could revisit the legislation to see how it is working.                                                                         
SENATOR  HUGGINS  moved  to  adopt  Version  \Y  as  the  working                                                               
document. There being no objection, the motion carried.                                                                         
9:06:26 AM                                                                                                                    
CHAIR SEEKINS advised the committee  that Version \Y redrafts the                                                               
immunity clause.                                                                                                                
SENATOR FRENCH  said he researched  immunity sections in  Title 9                                                               
and the language in Version \Y is acceptable.                                                                                   
9:07:38 AM                                                                                                                    
Senator Therriault joined the committee.                                                                                        
SENATOR   THERRIAULT  asked   whether  there   was  a   statutory                                                               
definition for  the municipal agencies  or employees and,  if so,                                                               
whether it includes school officials or district employees.                                                                     
CHAIR SEEKINS asked Ms. Dianne Olson to comment.                                                                                
9:09:32 AM                                                                                                                    
MS. DIANNE  OLSON, senior attorney, Anchorage  Attorney General's                                                               
Office,  answered  that AS  47.10.093  refers  to information  in                                                               
social records pertaining  to the minor prepared  by employees of                                                               
the state and municipal agencies.  She did not see any definition                                                               
that would relate to a borough.                                                                                                 
CHAIR SEEKINS  asked Ms.  Olson whether a  school district  was a                                                               
subdivision of the state.                                                                                                       
MS. OLSON answered she would get back to the committee.                                                                         
CHAIR  SEEKINS commented  the State  of  Alaska has  subdivisions                                                               
that  include  boroughs  and  cities.  He  asked  whether  school                                                               
districts were involved in Child In Need of Aid (CINA) cases.                                                                   
MS. OLSON  answered in  some instances children  who are  in CINA                                                               
cases are in  school. Under the statutes DHSS has  the ability to                                                               
share  some information  with the  schools. AS  47.10.093 ensures                                                               
the schools  can provide  counseling and  allows them  to provide                                                               
protection for the child.                                                                                                       
9:11:26 AM                                                                                                                    
CHAIR  SEEKINS  asked  Ms.  Olson whether  the  intent  would  be                                                               
clearer if  the committee  added language  to include  the school                                                               
district  or   employees  because  municipalities,   cities,  and                                                               
boroughs  are subdivisions  of the  state;  school districts  are                                                               
SENATOR THERRIAULT suggested the  committee decide whether or not                                                               
school  employees  should be  included.  After  that they  should                                                               
ensure the definition is clear.                                                                                                 
9:13:29 AM                                                                                                                    
CHAIR SEEKINS  commented there  is a different  theory as  far as                                                               
liability  is concerned.  SB 84  proposes  to indemnify  somebody                                                               
from liability for failure to  disclose but it protects the state                                                               
employee and not the school district employee.                                                                                  
SENATOR THERRIAULT asked whether  school district employees would                                                               
be included under SB 84.                                                                                                        
CHAIR  SEEKINS  answered  they   are  trusted  with  confidential                                                               
information,  and  they  could  be  sued  for  not  disseminating                                                               
important information.                                                                                                          
SENATOR  FRENCH said  generally  this type  of information  flows                                                               
uphill when  it's a report  of harm. Then  a CINA case  is opened                                                               
and  the   information  flows  back.  The   commissioner  or  the                                                               
commissioner's  designee would  decide  whether  to make  certain                                                               
information  available  to  the  public.   He  said  it  is  that                                                               
disclosure  or lack  of disclosure  that the  committee would  be                                                               
9:15:15 AM                                                                                                                    
SENATOR THERRIAULT  agreed the  information disclosure  goes both                                                               
ways. He  said he  is not  sure what  information a  state agency                                                               
would be expecting the school employee to disclose.                                                                             
CHAIR SEEKINS asked,  "What if a principal didn't  tell a teacher                                                               
important  information  and  a  child was  further  harmed  as  a                                                               
SENATOR FRENCH asked, "Do we  want to indemnify that person?" The                                                               
committee needs to determine how far  down the line to extend the                                                               
9:18:00 AM                                                                                                                    
SENATOR THERRIAULT  said he is not  sure it is advisable  to hold                                                               
state  agency  personnel  to  a lesser  standard  than  a  school                                                               
CHAIR SEEKINS agreed.                                                                                                           
SENATOR GUESS said in SB 84  a school employee is never providing                                                               
information  down  line.   It  is  the  state   employee  who  is                                                               
disclosing  information.  SB  84  doesn't deal  with  the  school                                                               
district side.                                                                                                                  
CHAIR SEEKINS announced a short recess at 9:19:14 AM.                                                                         
9:46:17 AM                                                                                                                    
CHAIR SEEKINS  reconvened the meeting.  He referenced  Section 14                                                               
and  explained the  intent is  to allow  the commissioner  or the                                                               
commissioner's  designee to  be  able to  release information  in                                                               
defense of  the actions of  the state  in a particular  case. The                                                               
commissioner and designee are the indemnified people.                                                                           
SENATOR  FRENCH commented  that  language would  solve  a lot  of                                                               
open-ended questions.                                                                                                           
9:49:59 AM                                                                                                                    
SENATOR GUESS proposed  the adoption of amendment  1, which reads                                                               
as follows:                                                                                                                     
      On page 8, line 18: delete "a municipality, or state                                                                      
        or municipal agencies or employees." Insert "the                                                                        
     commissioner or the commissioner's designee."                                                                              
CHAIR SEEKINS  heard no objections  so Amendment 1 to  Version \Y                                                               
was adopted.                                                                                                                    
SENATOR  THERRIAULT said  the difference  between negligence  and                                                               
gross  negligence is  a  gray  area. He  asked  if the  committee                                                               
should delete the word "gross".                                                                                                 
CHAIR  SEEKINS said  the  attorney  has the  onus  to define  the                                                               
difference between negligence and gross negligence.                                                                             
9:51:57 AM                                                                                                                    
SENATOR HUGGINS supported leaving the word "gross" in.                                                                          
SENATOR  FRENCH supported  Senator Huggins  and offered  that the                                                               
jury should  decide whether an  action or  non-action constituted                                                               
negligence or gross negligence.                                                                                                 
SENATOR THERRIAULT wondered  how negligent a person  could be and                                                               
still be protected by immunity.                                                                                                 
CHAIR SEEKINS said  SB 84 deals with the  public dissemination of                                                               
information. Immunity is only in Section 13, subsection (k).                                                                    
9:54:50 AM                                                                                                                    
SENATOR THERRIAULT asked  if the immunity clause  in AS 47.10.094                                                               
(a) was limited to AS 47.10.093(k).                                                                                             
CHAIR SEEKINS  said AS 47.10.094  applies only to the  actions in                                                               
AS 47.10.093(k).                                                                                                                
CHAIR SEEKINS  asked Ms.  Olson if  the committee  understood the                                                               
amendment correctly.                                                                                                            
MS.  OLSON agreed  that the  committee  understood the  amendment                                                               
that  said immunity  is limited  only to  actions in  Section 13,                                                               
subsection (k). She said the  state's tort attorney would like to                                                               
see  the amendment  to  include all  of  the downward  disclosure                                                               
under AS 47.10.093 if the committee  could figure out to whom the                                                               
disclosures would go. She cautioned  that there are possibilities                                                               
of missteps by state agencies.                                                                                                  
CHAIR SEEKINS countered that  those are confidential disclosures,                                                               
not public disclosures.                                                                                                         
MS. OLSON  commented under  AS 47.10.093, DHSS  might be  able to                                                               
disclose confidential  information to  a foster  parent who  is a                                                               
member  of the  public, or  to a  governmental agency,  or school                                                               
official for the  purpose of providing counseling  for the child.                                                               
There  are  circumstances  where  a person  might  interpret  the                                                               
statute to say a particular  piece of information should not have                                                               
been disseminated.  There are a lot  of areas for mistakes  to be                                                               
made. It would be good to  have that immunity pursued up to gross                                                               
negligence. Mistakes  can be made  when you have  discretion with                                                               
regard to the kind of information that you are providing.                                                                       
9:57:49 AM                                                                                                                    
CHAIR SEEKINS  asked Ms. Olson  the level of  confidentiality the                                                               
people she is talking about should be held to.                                                                                  
MS.  OLSON answered  they  would be  held to  the  same level  of                                                               
confidentiality  as   the  commissioner  or   the  commissioner's                                                               
CHAIR SEEKINS  asked whether a person  who disclosed confidential                                                               
information to the public could be subject to action.                                                                           
MS. OLSON answered yes, as referenced in another statute.                                                                       
CHAIR SEEKINS  said AS  47.10.094 would be  amended to  allow the                                                               
commissioner  or  the  commissioner's  designee  the  ability  to                                                               
disclose confidential  information to  the public but  only under                                                               
very special circumstances. He said  he is not sure the committee                                                               
wanted   to  indemnify   someone   who  is   in   the  chain   of                                                               
confidentiality  for making  public  disclosure.  People who  are                                                               
allowed to pass  on confidential information should be  held to a                                                               
standard and not be given blanket immunity.                                                                                     
9:59:13 AM                                                                                                                    
SENATOR GUESS  said the  question is  on page  5, line  22, where                                                               
employees are  making decisions about  whether or not  they shall                                                               
disclose  confidential  information to  a  group  of people.  She                                                               
asked  if the  committee  should provide  immunity  to the  state                                                               
employees  who  are making  decisions  about  whether or  not  to                                                               
disclose   confidential  information,   understanding  that   the                                                               
employee could make the wrong choice and cause harm to a child.                                                                 
CHAIR  SEEKINS  said the  state's  tort  attorney would  like  to                                                               
address that particular issue. He  suggested the committee should                                                               
consider  that  issue  in  another   piece  of  legislation.  The                                                               
committee  is  trying to  consider  how  to release  confidential                                                               
information to  the public.  It was a  good discussion  point but                                                               
the committee shouldn't hold up SB 84 for that.                                                                                 
10:00:54 AM                                                                                                                   
CHAIR SEEKINS asked for further discussion.                                                                                     
SENATOR THERRIAULT  asked if the  new section [AS  47.10.094 (a)]                                                               
creates  a higher  level  of protection  of  immunity than  other                                                               
immunity clauses in the current statutes.                                                                                       
MS. OLSON answered that it is a fairly routine standard.                                                                        
SENATOR  FRENCH  said  he  spent time  looking  at  the  immunity                                                               
sections of  the current statutes  and found AS 47.10.094  (a) to                                                               
be standard.                                                                                                                    
10:02:08 AM                                                                                                                   
CHAIR SEEKINS asked for other discussion.                                                                                       
10:02:21 AM                                                                                                                   
SENATOR HUGGINS moved CSSB 84(JUD) from committee with                                                                          
individual recommendations and zero fiscal notes. Hearing no                                                                    
objections, the motion carried.                                                                                                 

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