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