Legislature(1999 - 2000)
03/01/2000 01:40 PM Senate HES
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
SB 224-CONFIDENTIALITY OF CINA HEARINGS & RECORD
MS. JAN RUTHERDALE, Assistant Attorney General, informed committee
members that she practices extensively in the Child in Need of Aid
(CINA) area and was the staff attorney for the confidentiality task
force that was created a few years ago. She prepared a sectional
analysis to explain the various sections.
SB 224 was the result of the creation of a task force appointed by
the Governor after some high publicity cases highlighted problems
with the CINA system. The task force was asked to review the
confidentiality provisions of that system and whether the benefits
of those provisions in protecting privacy also served to shield the
public from information about the CINA system. The task force made
several recommendations in a report distributed to the committee.
SB 224 is a compilation of those recommendations.
SB 224 addresses three main areas. First, it would open up the
CINA court hearings. Those hearings are now presumed closed; SB
224 reverses that presumption so that they would be considered open
except in specified circumstances. The second change affects
court records which are now presumed closed. SB 224 would open
certain records to the public. The third change pertains to
Division of Family and Youth Services' (DFYS) records. Federal law
requires that agency records be kept confidential, however the task
force found three areas that can be opened, and in fact, agency
records in cases in which a child fatality or near fatality
occurred must be open. The second area pertains to situations when
a parent essentially waives the right to confidentiality by
publicly disclosing information about the case. DFYS would be able
to open agency records to respond to the disclosure. The third
area pertains to situation when a person is charged with a child
abuse crime, and allows DFYS to present information they have about
that report.
Number 618
SENATOR ELTON asked if any of the provisions in SB 224 will
threaten the Department of Health and Social Services with federal
reprisals.
MS. RUTHERDALE replied that is the task force's hope. She tried to
draft the legislation very carefully but the question is open right
now. From a strict reading of the federal laws, it appears that
nothing having to do with children's cases can be open at all. On
the other hand, Oregon has a constitutional provision that requires
all hearings to be open to the public. That provision has been in
effect for 20 to 30 years and Oregon has continued to receive full
federal funding. The State of Minnesota has a pilot project
underway which opened up hearings and court records and no federal
reprisals have occurred. With respect to agencies, the provisions
in SB 224 were modelled after a Washington State law that has been
in effect for two years. SB 224 brings the provisions together
from those three jurisdictions. It is unknown whether SB 224 will
be the "straw that broke the camel's back." She noted the federal
government is in the process of devising regulations to clarify
what information can be shared with the public but when those
regulations will be finalized is unknown. She pointed out that is
one reason SB 224 provides for a delayed effective date of April,
2001. If the federal government rules adversely toward Alaska's
law, the delayed effective date will allow the legislation to be
changed if necessary before it is implementd.
Number 785
SENATOR PETE KELLY asked in what circumstances children's names
would be a matter of open record.
MS. RUTHERDALE said that no children's names or identifying
information can be made public under SB 224. For example, court
records currently contain the child's name in the caption. The
name would have to be removed and the child referred to as "the
child" or by initials or some other non-identifying way. Agencies
would probably refer to the initials of the child. She noted, as
a practical matter, if a parent has already gone to the press, it
may be that the child's name was disclosed.
SENATOR PETE KELLY asked if the parents are identified.
MS. RUTHERDALE said they can be.
SENATOR PETE KELLY questioned whether identification of the parents
will effectively disclose who the child is.
MS. RUTHERDALE agreed it would easy for a diligent person to find
out the child's name, but the members from the media who were on
the task force assured the task force they had no interest in using
the names of the children. The bill contains a restriction that
orders the media not to use the child's name so there could be
contempt of court repercussions. She added that any member of the
public may not follow that code of honor, but it was the task
force's way of trying to be true to the federal restrictions while
at the same time having access to the public.
SENATOR PETE KELLY asked if the public will be aware of the story
but will not know the names of the children.
MS. RUTHERDALE explained the statute refers to the child's name but
it may be that the court will say there is to be no discussion of
the parent's names, or perhaps people in the courtroom will
naturally do that.
SENATOR PETE KELLY asked if the court is already doing that by
blacking out the names of children and whether that occurs only in
criminal cases.
MS. RUTHERDALE said it is not possible for any member of the
public, even a legislator, to go the court system and request a
child's file. She thought it must have been a criminal case if the
child's name was blacked out. Ms. Rutherdale added that initials
are usually used to identify a child in criminal cases.
Number 1021
SENATOR ELTON asked how far the protection goes for a child from a
relatively small village.
MS. RUTHERDALE replied "What the task force contemplated is the
smaller the town, the less information, really, you can give
because - and it may be impossible. For example, if you say the
parent of the child of so and so, everybody in the village knows
what child - or the daughter, and they only have two children. In
a big town like Anchorage, for example, that might not reveal the
child's name as easily - although members of the task force felt
that when you have such a small town, they probably know everything
anyway. So, it's a constant weighing of, are we protecting the
privacy interests versus the public's interest in knowing."
SENATOR WILKEN said when a child has an issue and it gets to this
point, the bigger communities assign children's advocates to the
children. He asked what they think of SB 224.
MS. RUTHERDALE replied that every volunteer child advocate is
attached to a guardian ad litem and the guardian ad litems in
Anchorage are in favor of SB 224. She noted that Brant McGee with
the Office of Public Advocacy was a member of the task force. She
said the task force heard from a lot of groups around the country.
One child advocacy group who took the position that shedding more
light on the system, and holding all of the social workers and
players more accountable, might embarass an individual child but
will be better for all. Another child advocate pointed out that
the children are harmed by the fact that their parents hurt them
but they assume that everyone knows anyway. She noted that
disclosure may not be an issue for a child at age eight, but it
could be if the child is stigmatized later.
Number 1243
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