2017 Montana Legislature

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SENATE BILL NO. 113

INTRODUCED BY F. MOORE, M. CAFERRO

 

AN ACT PROVIDING INCREASED TRANSPARENCY IN THE DISCLOSURE OF CHILD AND FAMILY SERVICES RECORDS; PROVIDING FOR THE DISCLOSURE OF RECORDS TO MEMBERS OF THE UNITED STATES CONGRESS AND MONTANA LEGISLATURE UNDER CERTAIN CIRCUMSTANCES; AND AMENDING SECTIONS 41-3-205 AND 41-3-208, MCA.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     Section 1.  Section 41-3-205, MCA, is amended to read:

     "41-3-205.  Confidentiality -- disclosure exceptions. (1) The case records of the department and its local affiliate, the local office of public assistance, the county attorney, and the court concerning actions taken under this chapter and all records concerning reports of child abuse and neglect must be kept confidential except as provided by this section. Except as provided in subsections (8) (9) and (9) (10), a person who purposely or knowingly permits or encourages the unauthorized dissemination of the contents of case records is guilty of a misdemeanor.

     (2)  Records may be disclosed to a court for in camera inspection if relevant to an issue before it. The court may permit public disclosure if it finds disclosure to be necessary for the fair resolution of an issue before it.

     (3)  Records, including case notes, correspondence, evaluations, videotapes, and interviews, unless otherwise protected by this section or unless disclosure of the records is determined to be detrimental to the child or harmful to another person who is a subject of information contained in the records, may be disclosed to the following persons or entities in this state and any other state or country:

     (a)  a department, agency, or organization, including a federal agency, military enclave, or Indian tribal organization, that is legally authorized to receive, inspect, or investigate reports of child abuse or neglect and that otherwise meets the disclosure criteria contained in this section;

     (b)  a licensed youth care facility or a licensed child-placing agency that is providing services to the family or child who is the subject of a report in the records or to a person authorized by the department to receive relevant information for the purpose of determining the best interests of a child with respect to an adoptive placement;

     (c)  a health or mental health professional who is treating the family or child who is the subject of a report in the records;

     (d)  a parent, grandparent, aunt, uncle, brother, sister, guardian, mandatory reporter provided for in 41-3-201(2) and (5), or person designated by a parent or guardian of the child who is the subject of a report in the records or other person responsible for the child's welfare, without disclosure of the identity of any person who reported or provided information on the alleged child abuse or neglect incident contained in the records;

     (e)  a child named in the records who was allegedly abused or neglected or the child's legal guardian or legal representative, including the child's guardian ad litem or attorney or a special advocate appointed by the court to represent a child in a pending case;

     (f)  the state protection and advocacy program as authorized by 42 U.S.C. 15043(a)(2);

     (g)  approved foster and adoptive parents who are or may be providing care for a child;

     (h)  a person about whom a report has been made and that person's attorney, with respect to the relevant records pertaining to that person only and without disclosing the identity of the reporter or any other person whose safety may be endangered;

     (i)  an agency, including a probation or parole agency, that is legally responsible for the supervision of an alleged perpetrator of child abuse or neglect;

     (j)  a person, agency, or organization that is engaged in a bona fide research or evaluation project and that is authorized by the department to conduct the research or evaluation;

     (k)  the members of an interdisciplinary child protective team authorized under 41-3-108 or of a family group decisionmaking meeting for the purposes of assessing the needs of the child and family, formulating a treatment plan, and monitoring the plan;

     (l)  the coroner or medical examiner when determining the cause of death of a child;

     (m)  a child fatality review team recognized by the department;

     (n)  a department or agency investigating an applicant for a license or registration that is required to operate a youth care facility, day-care facility, or child-placing agency;

     (o)  a person or entity who is carrying out background, employment-related, or volunteer-related screening of current or prospective employees or volunteers who have or may have unsupervised contact with children through employment or volunteer activities. A request for information under this subsection (3)(o) must be made in writing. Disclosure under this subsection (3)(o) is limited to information that indicates a risk to children, persons with developmental disabilities, or older persons posed by the person about whom the information is sought, as determined by the department.

     (p)  the news media, a member of the United States congress, or a state legislator, if disclosure is limited to confirmation of factual information regarding how the case was handled and if disclosure does not violate the privacy rights of the child or the child's parent or guardian, as determined by the department;

     (q)  an employee of the department or other state agency if disclosure of the records is necessary for administration of programs designed to benefit the child;

     (r)  an agency of an Indian tribe, a qualified expert witness, or the relatives of an Indian child if disclosure of the records is necessary to meet requirements of the federal Indian Child Welfare Act;

     (s)  a juvenile probation officer who is working in an official capacity with the child who is the subject of a report in the records;

     (t)  an attorney who is hired by or represents the department if disclosure is necessary for the investigation, defense, or prosecution of a case involving child abuse or neglect;

     (u)  a foster care review committee established under 41-3-115 or, when applicable, a citizen review board established under Title 41, chapter 3, part 10;

     (v)  a school employee participating in an interview of a child by a social worker, county attorney, or peace officer, as provided in 41-3-202;

     (w)  a member of a county interdisciplinary child information and school safety team formed under the provisions of 52-2-211;

     (x)  members of a local interagency staffing group provided for in 52-2-203;

     (y)  a member of a youth placement committee formed under the provisions of 41-5-121; or

     (z)  a principal of a school or other employee of the school district authorized by the trustees of the district to receive the information with respect to a student of the district who is a client of the department.

     (4) (a) The records described in subsection (3) must be disclosed to a member of the United States congress or a member of the Montana legislature if all of the following requirements are met:

     (i) the member receives a written inquiry regarding a child and whether the laws of the United States or the state of Montana that protect children from abuse or neglect are being complied with or whether the laws need to be changed to enhance protections for children;

     (ii) the member submits a written request to the department requesting to review the records relating to the written inquiry. The member's request must include a copy of the written inquiry, the name of the child whose records are to be reviewed, and any other information that will assist the department in locating the records.

     (iii) before reviewing the records, the member:

     (A) signs a form that outlines the state and federal laws regarding confidentiality and the penalties for unauthorized release of the information; and

     (B) receives from the department an orientation of the content and structure of the records.

     (b) Records disclosed pursuant to subsection (4)(a) are confidential, must be made available for the member to view at a location determined by the department but may not be copied, recorded, photographed, or otherwise replicated by the member, and must remain solely in the department's possession.

     (c) Access to records requested pursuant to this subsection (4) is limited to 6 months from the date the written request to review records was received by the department.

     (4)(5)  (a) The records described in subsection (3) must be promptly released to any of the following individuals upon a written request by the individual to the department or the department's designee:

     (i)  the attorney general;

     (ii) a county attorney or deputy county attorney of the county in which the alleged abuse or neglect occurred;

     (iii) a peace officer, as defined in 45-2-101, in the jurisdiction in which the alleged abuse or neglect occurred; or

     (iv) the office of the child and family ombudsman.

     (b)  The records described in subsection (3) must be promptly disclosed by the department to an appropriate individual described in subsection (4)(a) (5)(a) or to a county interdisciplinary child information and school safety team established pursuant to 52-2-211 upon the department's receipt of a report indicating that any of the following has occurred:

     (i)  the death of the child as a result of child abuse or neglect;

     (ii) a sexual offense, as defined in 46-23-502, against the child;

     (iii) exposure of the child to an actual and not a simulated violent offense as defined in 46-23-502; or

     (iv) child abuse or neglect, as defined in 41-3-102, due to exposure of the child to circumstances constituting the criminal manufacture or distribution of dangerous drugs.

     (5)(6)  A school or school district may disclose, without consent, personally identifiable information from the education records of a pupil to the department, the court, a review board, and the child's assigned attorney, guardian ad litem, or special advocate.

     (6)(7)  Information that identifies a person as a participant in or recipient of substance abuse treatment services may be disclosed only as allowed by federal substance abuse confidentiality laws, including the consent provisions of the law.

     (7)(8)  The confidentiality provisions of this section must be construed to allow a court of this state to share information with other courts of this state or of another state when necessary to expedite the interstate placement of children.

     (8)(9)  A person who is authorized to receive records under this section shall maintain the confidentiality of the records and may not disclose information in the records to anyone other than the persons described in subsections (3)(a) and (4) (5). However, this subsection may not be construed to compel a family member to keep the proceedings confidential.

     (9)(10) A news organization or its employee, including a freelance writer or reporter, is not liable for reporting facts or statements made by an immediate family member under subsection (8) (9) if the news organization, employee, writer, or reporter maintains the confidentiality of the child who is the subject of the proceeding.

     (10)(11) This section is not intended to affect the confidentiality of criminal court records, records of law enforcement agencies, or medical records covered by state or federal disclosure limitations.

     (11)(12) Copies of records, evaluations, reports, or other evidence obtained or generated pursuant to this section that are provided to the parent, grandparent, aunt, uncle, brother, sister, guardian, or parent's or guardian's attorney must be provided without cost."

 

     Section 2.  Section 41-3-208, MCA, is amended to read:

     "41-3-208.  Rulemaking authority. (1) The department of public health and human services shall adopt rules to govern the procedures used by department personnel in preparing and processing reports and in making investigations authorized by this chapter.

     (2)  The department may adopt rules to govern the disclosure of case records containing reports of child abuse and neglect.

     (3)  The department shall adopt a rule specifying the procedure to be used for the release and disclosure of records as provided in 41-3-205(4)(5). In adopting the rule, the department shall collaborate with the attorney general, the office of the child and family ombudsman, and appropriate county attorneys, law enforcement agencies, and county interdisciplinary child information and school safety teams established pursuant to 52-2-211."

- END -

 


Latest Version of SB 113 (SB0113.ENR)
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