Florida Senate - 2008 CS for CS for SB 2762

By the Committees on Judiciary; Children, Families, and Elder Affairs; and Senators Dockery and Lynn

590-06975-08 20082762c2

A bill to be entitled

An act relating to confidential records of children;

creating s. 39.00145, F.S.; requiring that the case file

of a child under the supervision or in the custody of the

Department of Children and Family Services be maintained

in a complete and accurate manner; specifying who has

access to the case file and records in the file;

authorizing the court to directly release the child's

records to certain entities; providing that entities that

have access to confidential information about a child may

share it with other entities that provide services

benefiting children; amending s. 39.202, F.S.; clarifying

who has access to a child's records and who may bring an

action to require access to confidential records held by

the department; amending s. 39.2021, F.S.; expanding the

authority of the Department of Children and Family

Services to release records relating to children on its

own initiative upon a showing of good cause; requiring

notice to certain parties before release; providing for a

court order to stop the release; amending s. 402.115,

F.S.; adding the Department of Juvenile Justice to the

list of agencies that are authorized to exchange

confidential information; amending s. 415.107, F.S.;

clarifying who may bring an action to require access to

confidential records held by the Department of Children

and Family Services; amending s. 415.1071, F.S.; expanding

the authority of the department to release records

relating to vulnerable adults on its own initiative upon a

showing of good cause; requiring notice to certain parties

before release; providing for a court order to stop the

release; providing an effective date.

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

Section 1. Section 39.00145, Florida Statutes, is created

to read:

39.00145 Records concerning children.--

(1) The case file of every child under the supervision of

or in the custody of the department, the department's authorized

agents, or contract providers for the department, including

community-based care lead agencies and their subcontracted

providers, must be maintained in a complete and accurate manner,

including, but not limited to, the child's case plan required by

part VIII of this chapter, and the full name and street address

of any and all shelters, foster parents, group homes, treatment

facilities, or locations where the child is placed. The child

shall be provided with a complete and accurate copy of his or her

entire case file, at no cost, upon the request of the child or

the child's caregiver, guardian ad litem, or attorney on behalf

of the child. At the time that a prospective adoptive parent is

identified for a child whose parents have had their rights

terminated pursuant to this chapter, the adoption entity shall be

provided with a copy of that child's case file upon request.

(2) Notwithstanding any other provision in this chapter,

the records in the case file shall be made available for review

upon request of the child or the child's caregiver, guardian ad

litem, or attorney, at no cost. A request by the child's attorney

or guardian ad litem must be submitted in writing.

(a) The release of records in the case file to the child's

caregiver or guardian ad litem does not waive the confidential

status of the information contained in the records.

(b) If a child, or the child's caregiver, attorney, or

guardian ad litem, requests access to the child's case file, any

person who fails to provide records in the case file under

assertion of a claim of an exemption from the public-records

requirements of chapter 119, or who fails to provide access

within a reasonable time, is subject to sanctions and penalties

under s. 119.10.

(3) If a court determines that sharing information in the

child's case file is necessary to ensure access to appropriate

services or for the safety of the child, the court may approve

the release of confidential records or information contained in

them. Information so released retains its confidential or exempt

status. For purposes of the Family Educational Rights and Privacy

Act, the disclosure of information in health and safety

emergencies applies to a child placed in shelter care or found to

be dependent under this chapter.

(4) Notwithstanding any other provision of law, all state

and local agencies and programs that provide services to

children, or are responsible for a child's safety, including the

Department of Juvenile Justice, the Department of Health, the

Agency for Health Care Administration, the Agency for Persons

with Disabilities, the Department of Education, individual school

districts, the Statewide Guardian Ad Litem Office, and any

contract provider of such agencies, may share with each other

confidential records or information that is confidential and

exempt from disclosure under chapter 119 if the records or

information are reasonably necessary to assure access to

appropriate services or for the safety of the child. Confidential

or exempt information shared among agencies and agency

contractors, as agents for the state, remains confidential or

exempt as provided by law. Any records or information otherwise

made confidential by federal law may not be released under this

section. This subsection does not apply to information concerning

clients and records of certified domestic violence centers which

are confidential under s. 39.908 and privileged under s. 90.5036.

Section 2. Subsection (1) and paragraph (a) of subsection

(2) of section 39.202, Florida Statutes, are amended, paragraph

(r) is added to subsection (2) of that section, and subsection

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(9) is added to that section, to read:

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39.202 Confidentiality of reports and records in cases of

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child abuse or neglect.--

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

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child's parents or other persons responsible for the child's

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welfare, all records held by the department concerning reports of

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child abandonment, abuse, or neglect, including reports made to

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the central abuse hotline and all records generated as a result

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of such reports, shall be confidential and exempt from the

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

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specifically authorized by this chapter. Such exemption from s.

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119.07(1) applies to information in the possession of those

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entities granted access as set forth in this section. As provided

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in s. 39.00145, any entity granted access to records under this

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section shall grant access to any other entity or individual

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entitled to access under this section.

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(2) Except as provided in subsection (4), access to such

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records, excluding the name of the reporter which shall be

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released only as provided in subsection (5), shall be granted

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only to the following persons, officials, and agencies:

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(a) Employees, authorized agents, or contract providers of

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the department, including community-based care lead agencies and

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their subcontracted providers, the Department of Health, the

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Agency for Persons with Disabilities, or county agencies

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responsible for carrying out:

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1. Child or adult protective investigations;

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2. Ongoing child or adult protective services;

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3. Early intervention and prevention services;

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4. Healthy Start services;

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5. Licensure or approval of adoptive homes, foster homes,

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child care facilities, facilities licensed under chapter 393, or

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family day care homes or informal child care providers who

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receive subsidized child care funding, or other homes used to

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provide for the care and welfare of children; or

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6. Services for victims of domestic violence when provided

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by certified domestic violence centers working at the

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department's request as case consultants or with shared clients.

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Also, employees or agents of the Department of Juvenile Justice

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responsible for the provision of services to children, pursuant

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to chapters 984 and 985.

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(r) Persons with whom placement of a child is being

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actively considered or has been granted, including foster parents

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for whom an approved home study has been conducted; the designee

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of a licensed residential group home under s. 39.523; an approved

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relative or nonrelative placement pursuant to s. 39.402(4); or

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preadoptive parents for whom a favorable preliminary adoptive

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home study has been conducted, adoptive parents, or an adoptive

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entity acting on behalf of preadoptive parents or adoptive

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parents.

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(9) Any individual, agency, or other entity entitled to

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access records under this section may petition a circuit court,

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in accordance with s. 119.11, to enforce the provisions of this

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section.

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Section 3. Section 39.2021, Florida Statutes, is amended to

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read:

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39.2021 Release of confidential information.--

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(1) Any person or organization, including the department of

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Children and Family Services, may petition the court for an order

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making public the records of the department of Children and

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Family Services which pertain to an investigation investigations

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of alleged abuse, abandonment, or neglect of a child. The court

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shall determine whether there is good cause exists for public

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access to the records sought or a portion thereof. In making a

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this determination of good cause, the court shall balance the

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best interests of the child who is the focus of the investigation

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and the interest of the that child's siblings, together with the

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privacy rights of other persons identified in the reports,

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against the public interest. The public interest in access to

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such records is reflected in s. 119.01(1), and includes the need

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for the public citizens to know of and adequately evaluate the

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actions of the department of Children and Family Services and the

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court system in providing children of this state with the

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protections enumerated in s. 39.001. However, this subsection

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does not contravene s. 39.202, which protects the name of any

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person reporting the abuse, abandonment, or neglect of a child.

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(2) In cases involving serious bodily injury to a child,

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the department of Children and Family Services may petition the

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court for an order for the immediate public release of records of

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the department which pertain to the protective investigation. The

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petition must be personally served upon the child, the child's

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parent or guardian, and any person named as an alleged

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perpetrator in the report of abuse, abandonment, or neglect. The

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court must determine whether good cause exists for the public

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

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Saturdays, Sundays, and legal holidays, after the date the

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department filed the petition with the court. If the court does

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not grant or deny the petition within the 24-hour time period,

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the department may release to the public summary information

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including:

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(a) A confirmation that an investigation has been conducted

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concerning the alleged victim.

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(b) The dates and brief description of procedural

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activities undertaken during the department's investigation.

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participant's recommendations made at the judicial proceeding,

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and the ruling of the court.

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The summary information shall not include the name of, or other

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identifying information with respect to, any person identified in

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any investigation. In making a determination to release

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confidential information, the court shall balance the best

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interests of the child who is the focus of the investigation and

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

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rights of other persons identified in the reports against the

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public interest for access to public records. However, this

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subsection does not contravene s. 39.202, which protects the name

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of any person reporting abuse, abandonment, or neglect of a

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child.

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(3) If When the court determines that there is good cause

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for public access exists, the court shall direct that the

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department to redact the name of, and other identifying

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information with respect to, any person identified in the any

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protective investigation report until such time as the court

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finds that there is probable cause to believe that the person

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identified committed an act of alleged abuse, abandonment, or

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neglect.

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(4) Notwithstanding subsections (1) and (2), the secretary

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may make public the records of the department which pertain to an

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investigation of alleged abuse, abandonment, or neglect of a

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child which resulted in serious mental, emotional, or physical

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injury to the child, or any information included in such records,

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if the secretary determines that the release of the records is in

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the public interest.

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(a) In making a determination of the public interest, the

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secretary shall balance the best interests of the child who is

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the focus of the investigation and the interest of the child's

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siblings, together with the privacy rights of other persons

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identified in the reports, against the public interest. The

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public interest in access to such records is reflected in s.

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119.01(1) and includes the need for the public to know and

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adequately evaluate the actions of the department and the court

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system in providing children with the protections enumerated in

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s. 39.001. However, this subsection does not contravene s.

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39.202, which protects the name of any person reporting the

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abuse, abandonment, or neglect of a child.

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(b) Before the records are made public, the secretary must

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state in writing and with specificity the basis for the

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determination of public interest.

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is in the public interest, the department shall redact the name

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of, and any other identifying information with respect to, any

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person identified in the report of abuse, abandonment, or neglect

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until the court finds that there is probable cause to believe the

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person identified committed an act of alleged abuse, abandonment,

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or neglect.

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(d) Before releasing the records, the department shall make

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a good faith effort to notify the child, the child's caregiver,

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the child's attorney, the guardian ad litem assigned to the case,

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any person named as an alleged perpetrator in the report of

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abuse, abandonment, or neglect, and any law enforcement agency

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actively involved in investigating the alleged abuse,

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abandonment, or neglect. Such notification must take place at

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least 3 business days before the release of the records, by hand

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or via overnight delivery service, with evidence of delivery.

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(e) After receiving notice, the child, the child's

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caregiver, the child's attorney, the guardian ad litem assigned

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to the case, any person named as an alleged perpetrator in the

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report, and any law enforcement agency actively investigating an

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allegation may petition a circuit court for an order preventing

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the department from releasing the records.

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(f) The circuit court may order the department not to

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release the records only after finding that the best interests of

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the petitioner outweigh the public interest. The public interest

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in access to such records is reflected in s. 119.01(1), and

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includes the need for the public to know and adequately evaluate

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the actions of the department and the court system in providing

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children with the protections enumerated in s. 39.001.

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Section 4. Section 402.115, Florida Statutes, is amended to

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read:

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402.115 Sharing confidential or exempt

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information.--Notwithstanding any other provision of law to the

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contrary, the Department of Health, the Department of Children

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and Family Services, the Department of Juvenile Justice, and the

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Agency for Persons with Disabilities may share confidential

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information or information exempt from disclosure under chapter

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119 on any individual who is or has been the subject of a program

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within the jurisdiction of each agency. Information so exchanged

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remains confidential or exempt as provided by law.

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Section 5. Present subsections (6), (7), and (8) of section

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415.107, Florida Statutes, are renumbered as subsections (7),

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(8), and (9), respectively, and a new subsection (6) is added to

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that section, to read:

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415.107 Confidentiality of reports and records.--

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(6) Any individual, agency, or other entity entitled to

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access records under this section may petition a circuit court,

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in accordance with s. 119.11, to enforce the provisions of this

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section.

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Section 6. Section 415.1071, Florida Statutes, is amended

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to read:

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415.1071 Release of confidential information.--

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(1) Any person or organization, including the department of

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Children and Family Services, may petition the court for an order

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making public the records of the department of Children and

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Family Services which pertain to an investigation investigations

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of alleged abuse, neglect, or exploitation of a vulnerable adult.

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The court shall determine whether there is good cause exists for

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public access to the records sought or a portion thereof. In

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making a this determination of good cause, the court shall

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balance the best interests of the vulnerable adult who is the

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focus of the investigation together with the privacy right of

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other persons identified in the reports, against the public

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interest. The public interest in access to such records is

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

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citizens to know of and adequately evaluate the actions of the

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department of Children and Family Services and the court system

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in providing vulnerable adults of this state with the protections

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enumerated in s. 415.101. However, this subsection does not

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contravene s. 415.107, which protects the name of any person

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reporting the abuse, neglect, or exploitation of a vulnerable

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adult.

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(2) In cases involving serious bodily injury to a

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vulnerable adult, the department of Children and Family Services

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may petition the court for an order for the immediate public

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release of records of the department which pertain to the

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protective investigation. The petition must be personally served

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upon the vulnerable adult, the vulnerable adult's legal guardian,

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

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report of abuse, neglect, or exploitation. The court must

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determine whether good cause exists for the public release of the

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records sought no later than 24 hours, excluding Saturdays,

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Sundays, and legal holidays, after the date the department filed

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the petition with the court. If the court does not grant or deny

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the petition within the 24-hour time period, the department may

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release to the public summary information including:

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(a) A confirmation that an investigation has been conducted

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concerning the alleged victim.

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(b) The dates and brief description of procedural

328

activities undertaken during the department's investigation.

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participant's recommendations made at the judicial proceeding,

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and the ruling of the court.

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The summary information shall not include the name of, or other

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identifying information with respect to, any person identified in

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any investigation. In making a determination to release

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confidential information, the court shall balance the best

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interests of the vulnerable adult who is the focus of the

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investigation together with the privacy rights of other persons

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identified in the reports against the public interest for access

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to public records. However, this subsection does not contravene

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s. 415.107, which protects the name of any person reporting

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abuse, neglect, or exploitation of a vulnerable adult.

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(3) If When the court determines that there is good cause

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for public access exists, the court shall direct that the

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department to redact the name of and other identifying

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information with respect to any person identified in the any

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protective investigation report until such time as the court

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finds that there is probable cause to believe that the person

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identified committed an act of alleged abuse, neglect, or

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exploitation.

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(4) Notwithstanding subsections (1) and (2), the secretary

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may make public the records of the department which pertain to an

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investigation of alleged abuse, neglect, or exploitation of a

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vulnerable adult which resulted in serious mental, emotional, or

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physical injury to the adult, or any information included in such

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records, if the secretary determines that the release of the

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records is in the public interest.

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(a) In making a determination of the public interest, the

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secretary shall balance the best interests of the vulnerable

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adult who is the focus of the investigation, together with the

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privacy rights of other persons identified in the reports,

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against the public interest. The public interest in access to

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such records is reflected in s. 119.01(1) and includes the need

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for the public to know and adequately evaluate the actions of the

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department and the court system in providing vulnerable adults

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with the protections enumerated in s. 415.101. However, this

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subsection does not contravene s. 415.107, which protects the

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name of any person reporting the abuse, neglect, or exploitation

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of a vulnerable adult.

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(b) Before the records are made public, the secretary must

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state in writing and with specificity the basis for the

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determination of public interest.

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is in the public interest, the department shall redact the name

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of, and any other identifying information with respect to, any

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person identified in the report of abuse, neglect, or

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exploitation until the court finds that there is probable cause

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to believe the person identified committed an act of alleged

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abuse, neglect, or exploitation.

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(d) Before releasing the records, the department shall make

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a good faith effort to notify the vulnerable adult, the

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vulnerable adult's guardian, if any, the vulnerable adult's

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attorney, any person named as an alleged perpetrator in the

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report of abuse, neglect, or exploitation, and any law

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enforcement agency actively involved in investigating the alleged

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abuse, neglect, or exploitation. Such notification must take

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place at least 3 business days before the release of the records,

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by hand or via overnight delivery service, with evidence of

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delivery.

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(e) After receiving notice, the vulnerable adult, the

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