House Bill 3887e1

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                                      HB 3887, First Engrossed/ntc



  1                      A bill to be entitled

  2         An act relating to public records; amending and

  3         renumbering s. 415.51, F.S.; revising

  4         provisions relating to confidentiality of

  5         Department of Children and Family Services

  6         reports and records of cases of child abuse and

  7         neglect; providing an exemption from public

  8         records requirements for department reports and

  9         records of cases of child abandonment;

10         requiring certain recordkeeping and

11         preservation by the department; providing for

12         future review and repeal; providing a finding

13         of public necessity; amending s. 119.07, F.S.,

14         to conform; providing a contingent effective

15         date.

16

17  Be It Enacted by the Legislature of the State of Florida:

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19         Section 1.  Section 415.51, Florida Statutes, is

20  renumbered as section 39.202, Florida Statutes, and amended to

21  read:

22         39.202 415.51  Confidentiality of reports and records

23  in cases of child abuse, abandonment, or neglect.--

24         (1)(a)  In order to protect the rights of the child and

25  the child's parents, legal custodians, or caregivers or other

26  persons responsible for the child's welfare, all records held

27  by the department concerning reports of child abuse,

28  abandonment, or neglect, including reports made to the central

29  abuse hotline and all records generated as a result of such

30  reports, shall be confidential and exempt from the provisions

31  of s. 119.07(1) and shall not be disclosed except as


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                                      HB 3887, First Engrossed/ntc



  1  specifically authorized by this chapter ss. 415.502-415.514.

  2  Such exemption from s. 119.07(1) applies to information in the

  3  possession of those entities granted access as set forth in

  4  this section.

  5         (b)  Except for information identifying individuals,

  6  all records involving the death of a child determined to be a

  7  result of abuse, abandonment, or neglect shall be released to

  8  the public within 10 days after completion of the

  9  investigation.

10         (2)  Access to such records, excluding the name of the

11  reporter which shall be released only as provided in

12  subsection (4) (9), shall be granted only to the following

13  persons, officials, and agencies:

14         (a)  Employees, authorized or agents, or contract

15  providers of the department, the Department of Health, or

16  county agencies responsible for carrying out child or adult

17  protective investigations, ongoing child or adult protective

18  services, Healthy Start services, or licensure or approval of

19  adoptive homes, foster homes, or child care facilities, or

20  family day care homes or informal child care providers who

21  receive subsidized child care funding, or other homes used to

22  provide for the care and welfare of children.  Also, employees

23  or agents of the Department of Juvenile Justice responsible

24  for the provision of services to children, pursuant to parts

25  II and IV of chapter 985 39.

26         (b)  Criminal justice agencies of appropriate

27  jurisdiction.

28         (c)  The state attorney of the judicial circuit in

29  which the child resides or in which the alleged abuse,

30  abandonment, or neglect occurred.

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                                      HB 3887, First Engrossed/ntc



  1         (d)  The parent, caregiver, or legal custodian of any

  2  child who is alleged to have been abused, abandoned, or

  3  neglected, and the child, and their attorneys or abandoned.

  4  This access shall be made available no later than 30 days

  5  after the department receives the initial report of abuse,

  6  neglect, or abandonment. However, any information otherwise

  7  made confidential or exempt by law shall not be released

  8  pursuant to this paragraph.

  9         (e)  Any person alleged in the report as having caused

10  the abuse, abandonment, or neglect, or abandonment of a child.

11  This access shall be made available no later than 30 days

12  after the department receives the initial report of abuse,

13  abandonment, or neglect, or abandonment. However, any

14  information otherwise made confidential or exempt by law shall

15  not be released pursuant to this paragraph.

16         (f)  A court upon its finding that access to such

17  records may be necessary for the determination of an issue

18  before the court; however, such access shall be limited to

19  inspection in camera, unless the court determines that public

20  disclosure of the information contained therein is necessary

21  for the resolution of an issue then pending before it.

22         (g)  A grand jury, by subpoena, upon its determination

23  that access to such records is necessary in the conduct of its

24  official business.

25         (h)  Any appropriate official of the department

26  responsible for:

27         1.  Administration or supervision of the department's

28  program for the prevention, investigation, or treatment of

29  child abuse, abandonment, or neglect, or exploitation, or

30  abuse, abandonment, neglect, or exploitation of a disabled

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                                      HB 3887, First Engrossed/ntc



  1  adult or elderly person, when carrying out his or her official

  2  function; or

  3         2.  Taking appropriate administrative action concerning

  4  an employee of the department alleged to have perpetrated

  5  institutional child abuse, abandonment, or neglect, or

  6  exploitation, or abuse, abandonment, neglect, or exploitation

  7  of a disabled adult or elderly person; or.

  8         3.  Employing and continuing employment of personnel of

  9  the department.

10         (i)  Any person engaged in the use of such records or

11  information for bona fide research, statistical, or audit

12  purposes. All such requests for records or information shall

13  require the requesting individual or entity to enter into a

14  privacy and security agreement which provides that the

15  requesting individual or entity shall comply with all laws and

16  rules governing the use of such records and information for

17  research, statistical, or audit purposes. However, no

18  information identifying the subjects of the report shall be

19  made available to the researcher.

20         (j)  The Division of Administrative Hearings for

21  purposes of any administrative challenge.

22         (k)  Any appropriate official of the human rights

23  advocacy committee investigating a report of known or

24  suspected child abuse, abandonment, or neglect, the Auditor

25  General for the purpose of conducting preliminary or

26  compliance reviews pursuant to s. 11.45, or the guardian ad

27  litem for the child as defined in s. 415.503.

28         (l)  Employees or agents of an agency of another state

29  that has comparable jurisdiction to the jurisdiction described

30  in paragraph (a).

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                                      HB 3887, First Engrossed/ntc



  1         (m)  The Public Employees Relations Commission for the

  2  sole purpose of obtaining evidence for appeals filed pursuant

  3  to s. 447.207.  Records may be released only after deletion of

  4  all information which specifically identifies persons other

  5  than the employee.

  6         (n)  Employees or agents of the Department of Revenue

  7  responsible for child support enforcement activities.

  8         (3)  The department may release to professional persons

  9  such information as is necessary for the diagnosis and

10  treatment of the child or the person perpetrating the abuse,

11  abandonment, or neglect.

12         (4)  The name of any person reporting child abuse,

13  abandonment, or neglect may not be released to any person

14  other than employees of the department responsible for child

15  protective services, or the central abuse hotline, law

16  enforcement, or the appropriate state attorney or law

17  enforcement agency, without the written consent of the person

18  reporting. This does not prohibit the subpoenaing of a person

19  reporting child abuse, abandonment, or neglect when deemed

20  necessary by the court, the state attorney, or the department,

21  provided the fact that such person made the report is not

22  disclosed.  Any person who reports a case of child abuse,

23  abandonment, or neglect may, at the time he or she makes the

24  report, request that the department notify him or her that a

25  child protective investigation occurred as a result of the

26  report.  The department shall mail such a notice to the

27  reporter within 10 days after completing the child protective

28  investigation.

29         (5)  All records and reports of the child protection

30  team are confidential and exempt from the provisions of ss.

31  119.07(1) and 455.667 455.241, and shall not be disclosed,


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                                      HB 3887, First Engrossed/ntc



  1  except, upon request, to the state attorney, law enforcement,

  2  the department, and necessary professionals, in furtherance of

  3  the treatment or additional evaluative needs of the child or

  4  by order of the court.

  5         (6)  The department shall make and keep reports and

  6  records of all cases under this chapter relating to child

  7  abuse, abandonment, and neglect and shall preserve the records

  8  pertaining to a child and family until 7 years after the last

  9  entry was made or until the child is 18 years of age,

10  whichever date is first reached, and may then destroy the

11  records. Department records required by this chapter relating

12  to child abuse, abandonment, and neglect may be inspected only

13  upon order of the court or as provided for in this section.

14         (7)(6)  A person who knowingly or willfully makes

15  public or discloses to any unauthorized person any

16  confidential information contained in the central abuse

17  hotline is subject to the penalty provisions of s. 39.205

18  415.513. This notice shall be prominently displayed on the

19  first sheet of any documents released pursuant to this

20  section.

21         Section 2.  The provisions in s. 39.202, Florida

22  Statutes, as amended by this act, which provide an exemption

23  from public records requirements for reports and records of

24  cases of child abandonment held by the Department of Children

25  and Family Services are subject to the Open Government Sunset

26  Review Act of 1995 in accordance with s. 119.15, Florida

27  Statutes, and shall stand repealed on October 2, 2003, unless

28  reviewed and saved from repeal by reenactment of the

29  Legislature.

30         Section 3.  It is a public necessity that reports and

31  records of cases of child abandonment held by the Department


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                                      HB 3887, First Engrossed/ntc



  1  of Children and Family Services be confidential and exempt

  2  from public records requirements due to the sensitive and

  3  personal nature of these records and the detrimental effect

  4  that release of such personal information could have on the

  5  families and children involved. Further, the disclosure of

  6  such information could interfere with the department's ability

  7  to carry out its duties with respect to the protection of

  8  families and children.

  9         Section 4.  Paragraphs (a), (b), (c), and (d) of

10  subsection (7) of section 119.07, Florida Statutes, are

11  amended to read:

12         119.07  Inspection, examination, and duplication of

13  records; exemptions.--

14         (7)(a)  Any person or organization, including the

15  Department of Children and Family Health and Rehabilitative

16  Services, may petition the court for an order making public

17  the records of the Department of Children and Family Health

18  and Rehabilitative Services that pertain to investigations of

19  alleged abuse, neglect, abandonment, or exploitation of a

20  child, a disabled adult, or an elderly person. The court shall

21  determine if good cause exists for public access to the

22  records sought or a portion thereof. In making this

23  determination, the court shall balance the best interest of

24  the disabled adult, elderly person, or child who is the focus

25  of the investigation, and in the case of the child, the

26  interest of that child's siblings, together with the privacy

27  right of other persons identified in the reports against the

28  public interest. The public interest in access to such records

29  is reflected in s. 119.01(1), and includes the need for

30  citizens to know of and adequately evaluate the actions of the

31  Department of Children and Family Health and Rehabilitative


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                                      HB 3887, First Engrossed/ntc



  1  Services and the court system in providing disabled adults,

  2  elderly persons, and children of this state with the

  3  protections enumerated in ss. 39.001 and 415.101 and 415.502.

  4  However, nothing in this subsection shall contravene the

  5  provisions of ss. 39.202 415.51 and 415.107, which protect the

  6  name of any person reporting the abuse, neglect, abandonment,

  7  or exploitation of a child, a disabled adult, or an elderly

  8  person.

  9         (b)1.  In cases involving the death of a disabled adult

10  or an elderly person as the result of abuse, neglect, or

11  exploitation, there shall be a presumption that the best

12  interest of the disabled adult or elderly person and the

13  public interest will be served by full public disclosure of

14  the circumstances of the investigation of the death and any

15  other investigation concerning the disabled adult or elderly

16  person.

17         2.  In cases involving the death of a child as the

18  result of abuse, neglect, or abandonment, there shall be a

19  presumption that the best interest of the child and the

20  child's siblings and the public interest will be served by

21  full public disclosure of the circumstances of the

22  investigation of the death of the child and any other

23  investigation concerning the child and the child's siblings.

24         (c)  In cases involving serious bodily injury to a

25  child, a disabled adult or an elderly person, the Department

26  of Children and Family Health and Rehabilitative Services may

27  petition the court for an order for the immediate public

28  release of records of the department which pertain to the

29  investigation of abuse, neglect, abandonment, or exploitation

30  of the child, disabled adult, or elderly person who suffered

31  serious bodily injury. The petition must be personally served


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                                      HB 3887, First Engrossed/ntc



  1  upon the child, disabled adult, or elderly person, the child's

  2  parents or guardian, the legal guardian of that person, if

  3  any, and any person named as an alleged perpetrator in the

  4  report of abuse, neglect, abandonment, or exploitation. The

  5  court must determine if good cause exists for the public

  6  release of the records sought no later than 24 hours,

  7  excluding Saturdays, Sundays, and legal holidays, from the

  8  date the department filed the petition with the court. If the

  9  court has neither granted nor denied the petition within the

10  24-hour time period, the department may release to the public

11  summary information including:

12         1.  A confirmation that an investigation has been

13  conducted concerning the alleged victim.

14         2.  The dates and brief description of procedural

15  activities undertaken during the department's investigation.

16         3.  The date of each judicial proceeding, a summary of

17  each participant's recommendations made at the judicial

18  proceedings, and the rulings of the court.

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20  The summary information may not include the name of, or other

21  identifying information with respect to, any person identified

22  in any investigation. In making a determination to release

23  confidential information, the court shall balance the best

24  interests of the disabled adult or elderly person or child who

25  is the focus of the investigation and, in the case of the

26  child, the interests of that child's siblings, together with

27  the privacy rights of other persons identified in the reports

28  against the public interest for access to public records.

29  However, nothing in this paragraph shall contravene the

30  provisions of ss. 39.202 415.51 and 415.107, which protect the

31  name of any person reporting abuse, neglect, abandonment, or


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                                      HB 3887, First Engrossed/ntc



  1  exploitation of a child, a disabled adult, or an elderly

  2  person.

  3         (d)  In cases involving the death of a child or a

  4  disabled adult or an elderly person, the Department of

  5  Children and Family Health and Rehabilitative Services may

  6  petition the court for an order for the immediate public

  7  release of records of the department which pertain to the

  8  investigation of abuse, neglect, abandonment, or exploitation

  9  of the child, disabled adult, or elderly person who died.  The

10  department must personally serve the petition upon the child's

11  parents or guardian, the legal guardian of the disabled adult

12  or elderly person, if any, and any person named as an alleged

13  perpetrator in the report of abuse, neglect, abandonment, or

14  exploitation. The court must determine if good cause exists

15  for the public release of the records sought no later than 24

16  hours, excluding Saturdays, Sundays, and legal holidays, from

17  the date the department filed the petition with the court. If

18  the court has neither granted nor denied the petition within

19  the 24-hour time period, the department may release to the

20  public summary information including:

21         1.  A confirmation that an investigation has been

22  conducted concerning the alleged victim.

23         2.  The dates and brief description of procedural

24  activities undertaken during the department's investigation.

25         3.  The date of each judicial proceeding, a summary of

26  each participant's recommendations made at the judicial

27  proceedings, and the ruling of the court.

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29  In making a determination to release confidential information,

30  the court shall balance the best interests of the disabled

31  adult or elderly person or child who is the focus of the


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                                      HB 3887, First Engrossed/ntc



  1  investigation and, in the case of the child, the interest of

  2  that child's siblings, together with the privacy right of

  3  other persons identified in the reports against the public

  4  interest.  However, nothing in this paragraph shall contravene

  5  the provisions of ss. 39.202 415.51 and 415.107, which protect

  6  the name of any person reporting abuse, neglect, abandonment,

  7  or exploitation of a child, a disabled adult, or an elderly

  8  person.

  9         Section 5.  This act shall take effect on the same date

10  as House Bill 3883 or similar legislation takes effect, if

11  such legislation is adopted in the same legislative session or

12  an extension thereof.

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