Legislature(2005 - 2006)BUTROVICH 205
03/03/2005 08:30 AM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB84 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| = | SB 84 | ||
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
amendment.
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
not.
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
indemnifying.
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
result?"
SENATOR FRENCH asked, "Do we want to indemnify that person?" The
committee needs to determine how far down the line to extend the
indemnification.
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
employee.
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
designee.
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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