SB 187-CONFIDENTIAL INFORMATION: MISCONDUCT, RLS  1:16:28 PM CHAIR KELLER announced that the next order of business would be CS FOR SENATE BILL NO. 187(JUD)(title am), "An Act relating to the crime of misconduct involving confidential information in the first degree; amending Rule 16, Alaska Rules of Criminal Procedure; amending Rule 8, Alaska Child in Need of Aid Rules; and providing for an effective date." [Before the committee was CSSB 187(JUD)(title am).] 1:16:44 PM RYNNIEVA MOSS, Staff, Senator John Coghill, Alaska State Legislature, directed attention to a proposed House committee substitute (HCS) for committee substitute (CS) for SB 187, found in the committee packet. Ms. Moss said SB 187 was the result of an incident last year in Alaska in which the videotaping of a confidential interview of a sexual abuse case ended up in the hands of relatives and was subsequently broadcast on the Internet. The proposed legislation would amend Alaska Statutes and three court rules. Firstly, AS 11.76.113 Misconduct involving confidential information in the first degree, would be amended to add an offense for a person who publishes or distributes an audio or video recording of an interview of a child for a criminal or child protection investigation, or records of a medical examination of a victim or a minor conducted for the purposes of an investigation under AS 11.41, or a child protection investigation, including photographs taken during the examination. Exceptions in proposed section 2 are for publishing or distributing with a court order, with a rule of court, or a state or federal law. There is also an exception for training law enforcement, prosecutors, or defense counselors, if the minor or victim's identity is concealed. In addition, this information could be utilized with a release of consent from an adult victim, an emancipated minor, or the minor's parent or guardian if the parent or guardian is not the perpetrator. MS. MOSS continued to proposed section 3, which amends rule 16(d)(3) of Alaska Rules of Criminal Code, to include this crime as evidence that cannot be in the physical custody of the defendant. 1:19:25 PM REPRESENTATIVE LYNN moved to adopt the proposed House committee substitute (HCS) for CSSB 187(JUD)(title am), Version 28- LS1145\P, Strasbaugh, 4/3/14, as the work draft. There being no objection, Version P was before the committee. MS. MOSS directed attention to page 4 of the work draft, stating that section 3 of the proposed legislation emphasizes that when defendants do not have counsel they have physical custody of this [confidential] information, but if they share the information, it is punishable by contempt of court and requires that the court inform the defendant that sharing the information constitutes a criminal offense. MS. MOSS explained that section 4 adds to court rule 16(d), that when evidence is submitted to the court, it must be in an envelope sealed and marked "confidential." She advised that the sponsor has worked closely with the Department of Law (DOL), the Public Defender Agency, (PDA), the Department of Administration (DOA), and the Office of Public Advocacy (OPA), DOA, on section 5, which amends Direct Court Rule Amendment, Rule (8), Alaska Child in Need of Aid Rules (CINA). The purpose of this change is to ensure that the information is confidential and out of the reach of the defendant, but to also have access to medical records when medical records are needed for medical treatment. For example, in a child abuse case where a child is physically injured by a parent and medical records are needed for a physician to treat the child. Section 5 also "mirrors" rule (16), by informing the "pro se parent" that if the information is shared with anyone, that would constitute a criminal crime, and allows for confidential filing in an envelope sealed and marked "confidential." MS. MOSS further explained the proposed legislation addresses evidence for crimes under AS 11.41.410-11.41.450 which are sexual assault in the first, second, third, and fourth degrees, sexual abuse of a minor in the first, second, third, and fourth degrees, and incest. She directed attention to the conceptual amendment which addressed the language of the bill on page 4, line 30. 1:22:54 PM REPRESENTATIVE LYNN moved to adopt Conceptual Amendment [1] to Version P, which read as follows [original punctuation provided]: Page 4, line 30, after the word "records" Insert: "that are also evidence under AS 11.41.410-11.41.450" Page 4, line 31-Page 5, line 1, after the words "AS 47.10.011 or AS 47.14.300": Delete: "that is also evidence for an investigation under AS 11.41.410-11.41.450" 1:23:18 PM CHAIR KELLER objected for the purpose of discussion. MS. MOSS stated Conceptual Amendment 1 was suggested by Quinlan Steiner, director of the Public Defender Agency, for the purpose of clarifying that the video and audio recordings and medical records are only connected to investigations involving the aforementioned crimes. REPRESENTATIVE LEDOUX read from the proposed HCS, on page 4, beginning on line [14] as follows: The clerk shall inform the defendant ... that violation of the order issued under this paragraph is punishable as contempt of court and may also constitute a criminal [offense]. REPRESENTATIVE LEDOUX questioned why not say, "and also constitutes a criminal [offense]." 1:26:17 PM EMILY WRIGHT, Assistant Attorney General, Child Protection Section, Civil Division(Juneau), Department of Law, advised that this language is covered under the criminal rule of procedure 16(d)(3). She observed the term "may" leaves the question of criminality up to a jury thus "this is an advisement that a judge would be giving to ... a defendant." REPRESENTATIVE LEDOUX further questioned whether a judge would tell a defendant, "this may constituent a crime [instead of] this is a crime." MS. MOSS cautioned that the language is permissive because there could be a situation that arises in which the evidence "gets into somebody else's hands through no action of the defendant." CHAIR KELLER clarified for the record that he removed his objection to Conceptual Amendment 1. There being no further objection, Conceptual Amendment 1 was adopted. REPRESENTATIVE LEDOUX returned attention to page 4, lines 14-17, and pointed out that "may" is not used in the admonishment to the defendant regarding a contempt of court, which is inconsistent with the admonishment regarding a criminal offense. MS. MOSS said the sponsor is open to discussion on a possible change. CHAIR KELLER opined that it is best to leave the word "may." 1:31:44 PM ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Central Office, Criminal Division, Department of Law, stated that the proposed change is to a court rule which does not set out elements of the offense of any crime. Therefore, conduct that is covered under subparagraph (D), page 4, may include other conduct than that which is prohibited under the proposed new crime. She advised that using "may" is the cautious approach and ensures that the person is forewarned about the seriousness of his/her conduct. REPRESENTATIVE LEDOUX accepted the opinion from DOL. REPRESENTATIVE GRUENBERG further discussed the parameters of court rules. He concurred with Ms. Carpeneti. REPRESENTATIVE LEDOUX then asked for details on the incident that prompted SB 187. MS. MOSS said the attorney gave the videotape to a relative, who gave it to another relative who was upset about the situation and posted it on the Internet. 1:34:07 PM REPRESENTATIVE GRUENBERG surmised the proposed new crime is directed at the following two sets of circumstances: A document in the hands of a prosecutor or defense attorney in a criminal case "gets out," or in a Child in Need of Aid (CINA) case. From his experience practicing family law, he asked whether a family law case, such as a custody case, could be covered by the proposed bill. He suggested a provision that would state, "That if somebody releases this in violation of a custody order or an order involving child visitation ... something like that, in a private context also." Representative Gruenberg observed that this situation can come up in a private custody dispute. MS. MOSS said the proposed bill as written only applies to evidence in the aforementioned criminal cases. In further response to Representative Gruenberg, she said the proposed legislation applies to CINA cases when there are criminal charges. REPRESENTATIVE GRUENBERG pointed out there is a provision that the attorney cannot share certain information with his own client. MS. MOSS directed attention to page 3, lines 2-4 which read [in part]: The materials listed in this paragraph shall not be provided to the defendant, but the information in the materials may be shared with the defendant to the extent necessary to prepare the defense of the case MS. MOSS concluded that the defendant cannot have physical custody of the materials. 1:37:14 PM REPRESENTATIVE GRUENBERG questioned whether this restriction may be permissible under the Alaska Bar Rules of the Alaska Court System. He then directed attention to page 5, lines 27-28, and asked whether the sponsor would consider a change from "treating physician" to "health care professional" in order to be more inclusive. MS. MOSS responded to Representative Gruenberg's earlier question saying that the proposed legislation includes child protection investigations, but does not include child custody investigations, thus that distinction may require clarification. Returning to "treating physician" on page 5, lines 27-28, she agreed with the point raised by Representative Gruenberg. 1:40:17 PM REPRESENTATIVE MILLETT read from page 5, lines 26-28 as follows: Notwithstanding another provision of this section, the legal custodian of a child may provide records of a medical examination of a child to the child's treating physician .... REPRESENTATIVE MILLETT asked whether the treating physician "could be anybody - it could be the ER ... - that is a licensed medical professional." MS. MOSS expressed her belief the possibilities include a nurse or someone in a health clinic, or a dentist. REPRESENTATIVE MILLETT asked whether medical testimony from nurses, physician assistants (PAs), or advanced nurse practitioners (ANPs) has been used in previous cases or if all testimony pertaining to child abuse in CINA cases is from a medical doctor (MD). She expressed her understanding that this testimony was required to come from none other than an MD. MS. MOSS was unsure. REPRESENTATIVE GRUENBERG, speaking from his experience in many cases, said that if a child appears to be the victim of rape, an advanced nurse practitioner becomes involved. REPRESENTATIVE MILLETT related that advanced nurse practitioners conduct rape kit tests. She stressed that her question is whether testimony from an MD is required in a child abuse case that does not involve rape. 1:42:01 PM [SB 187 was heard and held.]