1

A bill to be entitled

2

An act relating to confidential records of children;

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

4

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

5

Department of Children and Family Services be maintained

6

in a complete and accurate manner; specifying who has

7

access to the case file and the records in the file;

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authorizing the court to directly release the child's

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records to certain entities; requiring that the department

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release information in a manner and setting that is

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appropriate to the child's age and maturity and the nature

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of the information; providing that certain entities may

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share confidential information about a child with other

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entities that provide services benefiting children;

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amending s. 39.202, F.S.; clarifying who has access to a

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child's records and who may bring an action to require

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access to confidential records held by the department;

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revising provisions relating to the amount of time the

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department is required to make and keep such records;

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

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authority to release records relating to children on its

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own initiative upon a showing of good cause; requiring

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notice to certain parties before such release; providing

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for a court order to stop such release; amending s.

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402.115, F.S.; adding the Department of Juvenile Justice

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to the list of agencies that are authorized to exchange

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

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clarifying who may bring an action to require access to

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confidential records held by the Department of Children

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

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the department's authority to release records relating to

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vulnerable adults on its own initiative upon a showing of

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good cause; requiring notice to certain parties before

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such release; providing for a court order to stop such

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release; providing an effective date.

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

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     Section 1.  Section 39.00145, Florida Statutes, is created

40

to read:

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     39.00145 Records concerning children.--

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

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

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agents, or contract providers for the department, including

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community-based care lead agencies and their subcontracted

46

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

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Such case file must contain the child's case plan required by

48

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

49

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

50

facilities, or locations where the child is placed.

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     (2)(a) Notwithstanding any other provision in this chapter,

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any records in a case file shall be made available for inspection

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without cost to the child who is the subject of the case file and

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the child's caregiver, guardian ad litem, or attorney. A request

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for inspection by the child's attorney must be submitted in

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writing.

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     (b) The child who is the subject of the case file and the

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child's caregiver, guardian ad litem, or attorney shall be

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provided any records in the child's case file or a complete and

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accurate copy of the child's case file, at no cost, upon the

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

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litem, or attorney on behalf of the child.

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     (c) The department shall release the information in a

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manner and setting that is appropriate to the age and maturity of

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the child and the nature of the information being released which

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may include the release of such information in a therapeutic

67

setting, if appropriate. This paragraph does not deny the child

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access to his or her records.

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

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

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

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may approve the release of confidential records or information

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contained in them. Any such information retains its confidential

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or exempt status.

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     (4) The placement of a child in shelter care or a finding

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that a child is dependent pursuant to this chapter is a health

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and safety emergency for the purpose of disclosure of records

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under the Family Educational Rights and Privacy Act.

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     (5)(a) Notwithstanding any other provision of law, all

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state and local agencies and programs that provide services to

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

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the Department of Juvenile Justice, the Department of Health, the

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Agency for Health Care Administration, the Agency for Persons

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with Disabilities, the Department of Education, individual school

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districts, the Statewide Guardian Ad Litem Office, and any

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contract provider of such agencies, may share with each other

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confidential records or information that is confidential or

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exempt from disclosure under chapter 119 if the records or

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information are reasonably necessary to ensure access to

90

appropriate services for the child or for the safety of the

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child.

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     (b) Records or information made confidential by federal law

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may not be shared under this subsection.

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     (c) This subsection does not apply to information

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concerning clients and records of certified domestic violence

96

centers which are confidential under s. 39.908 and privileged

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under s. 90.5036.

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

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and subsection (7) of section 39.202, Florida Statutes, are

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amended, paragraph (r) is added to subsection (2) of that

101

section, and subsection (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

110

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 the department is seeking to place

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the child or with whom placement has been granted, including, but

144

not limited to, foster parents for whom an approved home study

145

has been conducted; the designee of a licensed residential group

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home under s. 39.523; an approved relative or nonrelative

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placement pursuant to s. 39.402(4); or preadoptive parents for

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whom a favorable preliminary adoptive home study has been

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conducted, adoptive parents, or an adoptive entity acting on

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behalf of preadoptive parents or adoptive parents.

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     (7)  The department shall make and keep reports and records

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of all cases under this chapter relating to child abuse,

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abandonment, and neglect and shall preserve the records

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

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entry was made or until the child is 18 years of age after which

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time the department, whichever date is first reached, and may

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then destroy the records. Department records required by this

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chapter relating to child abuse, abandonment, and neglect may be

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inspected only upon order of the court or as provided for in this

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section.

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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

164

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)(a) Any person or organization, including the department

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

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order 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.

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     (b) In making a this determination of good cause, the court

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shall balance the best interests of the child who is the focus of

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the investigation and the interest of the that child's siblings,

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together with the privacy rights of other persons identified in

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the reports, against the public interest. The public interest in

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

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the need for the public citizens to know of and adequately

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evaluate the actions of the department of Children and Family

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Services and the court system in providing children of this state

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with the protections enumerated in s. 39.001. 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 the abuse, abandonment, or neglect of a

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child.

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     (2)(a) 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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     1.(a) A confirmation that an investigation has been

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conducted concerning the alleged victim.

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     2.(b) The dates and brief description of procedural

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activities undertaken during the department's investigation.

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     3.(c) The date of each judicial proceeding, a summary of

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each participant's recommendations made at the judicial

208

proceeding, and the ruling of the court.

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     (b) The summary information shall not include the name of,

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or other identifying information with respect to, any person

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identified in any investigation. In making a determination to

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release confidential information, 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 interests of that child's siblings, together with the

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privacy rights of other persons identified in the reports against

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the 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 any 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

232

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; however, this section does not contravene s.

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39.202, which protects the name of any person reporting abuse,

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abandonment, or neglect of a child. The public interest in access

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

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need for the public to know and adequately evaluate the actions

239

of the department and the court system in providing children with

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the protections enumerated in s. 39.001.

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     (a) In making a determination that the release of the

242

records is in the public interest, the secretary shall balance

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

244

investigation and the interest of the child's siblings, together

245

with the privacy rights of other persons identified in the

246

reports, against the public interest.

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

248

state in writing and with specificity the basis for the

249

determination that the release of the records is in the public

250

interest.

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     (c) If the secretary determines that release of the records

252

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

253

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 named in the records, the

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child's caregiver if the child is under the age of 18, the

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

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person named as an alleged perpetrator in the report of abuse,

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abandonment, or neglect, and any law enforcement agency actively

264

involved in investigating the alleged abuse, abandonment, or

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neglect. Such notification must take place at least 3 business

266

days before the release of the records, by hand or via overnight

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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

272

allegation may petition a circuit court for an order preventing

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the department from releasing the records. If the department is

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provided actual or constructive notice by the child, or his her

275

representative, the alleged perpetrator or his or her

276

representative, or any law enforcement agency actively

277

investigating an allegation of an intent to file a petition for

278

an order preventing the release of such records, the department

279

may not release the records until the court has denied the

280

petition. If the department is notified that there is an intent

281

to file a petition and such petition is not filed within 10

282

business days after such notification, the department may release

283

the records thereafter.

284

     (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

286

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

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of the child's siblings, together with the privacy rights of

288

other persons identified in the reports, are outweighed by the

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public interest. If the petition is filed by a law enforcement

290

agency actively involved in an investigation, the court shall

291

also weigh the interest of the law enforcement agency in

292

maintaining the confidentiality of those records while the

293

investigation is active.

294

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

295

read:

296

     402.115  Sharing confidential or exempt

297

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

298

contrary, the Department of Health, the Department of Children

299

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

300

Agency for Persons with Disabilities may share confidential

301

information or information exempt from disclosure under chapter

302

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

303

within the jurisdiction of each agency. Information so exchanged

304

remains confidential or exempt as provided by law.

305

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

306

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

307

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

308

that section, to read:

309

     415.107  Confidentiality of reports and records.--

310

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

311

access records under this section may petition a circuit court,

312

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

313

section.

314

     Section 6.  Section 415.1071, Florida Statutes, is amended

315

to read:

316

     415.1071  Release of confidential information.--

317

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

318

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

319

making public the records of the department of Children and

320

Family Services which pertain to an investigation investigations

321

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

322

The court shall determine whether there is good cause exists for

323

public access to the records sought or a portion thereof.

324

     (b) In making a this determination of good cause, the court

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shall balance the best interests of the vulnerable adult who is

326

the focus of the investigation together with the privacy right of

327

other persons identified in the reports against the public

328

interest. The public interest in access to such records is

329

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

330

citizens to know of and adequately evaluate the actions of the

331

department of Children and Family Services and the court system

332

in providing vulnerable adults of this state with the protections

333

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

334

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

335

reporting the abuse, neglect, or exploitation of a vulnerable

336

adult.

337

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

338

vulnerable adult, the department of Children and Family Services

339

may petition the court for an order for the immediate public

340

release of records of the department which pertain to the

341

protective investigation. The petition must be personally served

342

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

343

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

344

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

345

determine whether good cause exists for the public release of the

346

records sought no later than 24 hours, excluding Saturdays,

347

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

348

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

349

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

350

release to the public summary information including:

351

     1.(a) A confirmation that an investigation has been

352

conducted concerning the alleged victim.

353

     2.(b) The dates and brief description of procedural

354

activities undertaken during the department's investigation.

355

     3.(c) The date of each judicial proceeding, a summary of

356

each participant's recommendations made at the judicial

357

proceeding, and the ruling of the court.

358

     (b) The summary information shall not include the name of,

359

or other identifying information with respect to, any person

360

identified in any investigation. In making a determination to

361

release confidential information, the court shall balance the

362

best interests of the vulnerable adult who is the focus of the

363

investigation together with the privacy rights of other persons

364

identified in the reports against the public interest for access

365

to public records. However, this subsection does not contravene

366

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

367

abuse, neglect, or exploitation of a vulnerable adult.

368

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

369

for public access exists, the court shall direct that the

370

department to redact the name of and other identifying

371

information with respect to any person identified in the any

372

protective investigation report until such time as the court

373

finds that there is probable cause to believe that the person

374

identified committed an act of alleged abuse, neglect, or

375

exploitation.

376

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

377

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

378

investigation of alleged abuse, neglect, or exploitation of a

379

vulnerable adult which resulted in serious mental, emotional, or

380

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

381

records, if the secretary determines that the release of the

382

records is in the public interest. The public interest in access

383

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

384

need for the public to know and adequately evaluate the actions

385

of the department and the court system in providing vulnerable

386

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

387

this subsection does not contravene s. 415.107, which protects

388

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

389

exploitation of a vulnerable adult.

390

     (a) In making a determination that the release of the

391

records is in the public interest, the secretary shall balance

392

the best interests of the vulnerable adult who is the focus of

393

the investigation, together with the privacy rights of other

394

persons identified in the reports, against the public interest.

395

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

396

state in writing and with specificity the basis for the

397

determination that the release of the records is in the public

398

interest.

399

     (c) If the secretary determines that release of the records

400

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

401

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

402

person identified in the report of abuse, neglect, or

403

exploitation until the court finds that there is probable cause

404

to believe the person identified committed an act of alleged

405

abuse, neglect, or exploitation.

406

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

407

a good faith effort to notify the vulnerable adult, the

408

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

409

attorney, any person named as an alleged perpetrator in the

410

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

411

enforcement agency actively involved in investigating the alleged

412

abuse, neglect, or exploitation. Such notification must take

413

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

414

by hand or via overnight delivery service, with evidence of

415

delivery.

416

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

417

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

418

attorney, any person named as an alleged perpetrator in the

419

report, and any law enforcement agency actively investigating an

420

allegation may petition a circuit court for an order preventing

421

the department from releasing the records. If the department is

422

provided actual or constructive notice by the vulnerable adult,

423

or his her representative, the alleged perpetrator or his or her

424

representative, or any law enforcement agency actively

425

investigating an allegation of an intent to file a petition for

426

an order preventing the release of such records, the department

427

may not release the records until the court has denied the

428

petition. If the department is notified that there is an intent

429

to file a petition and such petition is not filed within 10

430

business days after such notification, the department may release

431

the records thereafter.

432

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

433

release the records only after finding that the best interests of

434

the petitioner outweigh the public interest. The public interest

435

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

436

includes the need for the public to know and adequately evaluate

437

the actions of the department and the court system in providing

438

vulnerable adults with the protections enumerated in s. 415.101.

439

     Section 7.  This act shall take effect July 1, 2008.