Florida Senate - 2009 SB 126
By Senator Dockery
15-00303-09 2009126__
1 A bill to be entitled
2 An act relating to the confidential records of
3 children and vulnerable adults; creating s. 39.00145,
4 F.S.; requiring that the case file of a child under
5 the supervision or in the custody of the Department of
6 Children and Family Services be maintained in a
7 complete and accurate manner; specifying who has
8 access to the case file and records in the file;
9 authorizing the court to directly release the child's
10 records to certain entities; providing that entities
11 that have access to confidential information
12 concerning a child may share it with other entities
13 that provide services benefiting children; amending s.
14 39.202, F.S.; limiting the public-records exemption
15 provided for reports relating to child abandonment,
16 abuse, or neglect to personally identifying
17 information in the reports; revising the list of
18 persons or entities that have access to such
19 information; authorizing the secretary of the
20 department to release certain records in the public
21 domain; amending s. 415.107, F.S.; limiting the
22 public-records exemption provided for reports relating
23 to adult abuse, neglect, or exploitation to personally
24 identifying information in the reports; revising the
25 list of persons or entities that have access to such
26 information; authorizing the secretary of the
27 department to release certain records in the public
28 domain; amending ss. 39.01 and 39.201, F.S.;
29 conforming cross-references; providing an effective
30 date.
31
32 Be It Enacted by the Legislature of the State of Florida:
33
34 Section 1. Section 39.00145, Florida Statutes, is created
35 to read:
36 39.00145 Records concerning children.—The case file of
37 every child under the supervision of or in the custody of the
38 department, the department's authorized agents, or providers
39 contracting with the department, including community-based care
40 lead agencies and their subcontracted providers, must be
41 maintained in a complete and accurate manner. Such file must
42 contain the child's case plan required under part VIII of this
43 chapter and the full name and street address of all shelters,
44 foster parents, group homes, treatment facilities, or locations
45 where the child is placed.
46 (1) Notwithstanding any other provision of this chapter,
47 all records in a child's case file must be made available for
48 inspection without cost to the child who is the subject of the
49 case file and the child's caregiver, guardian ad litem, or
50 attorney. A request for inspection by the child's attorney must
51 be submitted in writing.
52 (a) The child and the child's caregiver, guardian ad litem,
53 or attorney shall be provided any records in the case file or a
54 complete and accurate copy of the records, at no cost, upon the
55 request of that child or the child's caregiver, guardian ad
56 litem, or attorney on behalf of the child.
57 (b) The department shall release the information in a
58 manner and setting that is appropriate to the age and maturity
59 of the child and the nature of the information being released,
60 which may include the release of such information in a
61 therapeutic setting, if appropriate. This paragraph does not
62 deny the child access to his or her records.
63 (c) If a child or the child’s caregiver, guardian ad litem,
64 or attorney requests access to the child’s case file, any person
65 or entity that fails to provide records in the case file under
66 assertion of a claim of exemption from the public-records
67 requirements of chapter 119, or fails to provide access within a
68 reasonable time, is subject to sanctions and penalties under s.
69 119.10.
70 (2) If a court determines that sharing information in the
71 child's case file is necessary to ensure access to appropriate
72 services for the child or for the safety of the child, the court
73 may approve the release of confidential records or information
74 contained in them. Any information that is released retains its
75 confidential or exempt status.
76 (3) The placement of a child in shelter care or a finding
77 that a child is dependent pursuant to this chapter is a health
78 and safety emergency for the purpose of disclosure of records
79 under the Family Educational Rights and Privacy Act.
80 (4) Notwithstanding any other provision of law, all state
81 and local agencies and programs that provide services to
82 children or that are responsible for a child's safety, including
83 the Department of Juvenile Justice, the Department of Health,
84 the Agency for Health Care Administration, the Agency for
85 Persons with Disabilities, the Department of Education, the
86 school districts, the Statewide Guardian Ad Litem Office, and
87 any provider contracting with such agencies, may share with each
88 other confidential records or information that is confidential
89 or exempt from disclosure under chapter 119 if the records or
90 information are reasonably necessary to ensure access to
91 appropriate services for the child or for the safety of the
92 child. However:
93 (a) Records or information made confidential by federal law
94 may not be shared.
95 (b) This subsection does not apply to information
96 concerning clients and records of certified domestic violence
97 centers, which are confidential under s. 39.908 and privileged
98 under s. 90.5036.
99 Section 2. Subsections (1) and (2) of section 39.202,
100 Florida Statutes, are amended, and subsection (9) is added to
101 that section, to read:
102 39.202 Confidentiality of reports and records in cases of
103 child abuse or neglect.—
104 (1) All personal identifying information for the following
105 persons contained in records held by the department relating to
106 child abandonment, abuse, abandonment, or neglect is In order to
107 protect the rights of the child and the child's parents or other
108 persons responsible for the child's welfare, All records held by
109 the department concerning reports of child abandonment, abuse,
110 or neglect, including reports made to the central abuse hotline
111 and all records generated as a result of such reports, shall be
112 confidential and exempt from the provisions of s. 119.07(1): and
113 shall not be disclosed except as specifically authorized by this
114 chapter. Such exemption from s. 119.07(1) applies to information
115 in the possession of those entities granted access as set forth
116 in this section.
117 (a) The child or the child's siblings;
118 (b) The child's caregiver, unless the caregiver is arrested
119 as a result of the report of child abuse, abandonment, or
120 neglect or is the subject of an injunction issued pursuant to s.
121 39.504; and
122 (c) The reporter of the alleged abuse, abandonment, or
123 neglect.
124 (2) Except as provided in subsection (4), access to the
125 personal identifying information of individuals listed in
126 subsection (1) such records, excluding the name of the reporter
127 which shall be released only as provided in subsection (5),
128 shall be granted only to the following persons, officials, and
129 agencies:
130 (a) Any employee, authorized agent, or provider contracting
131 with the department; any agency that provides services to the
132 child or the child’s family; and any federal, state, or local
133 governmental entity that needs the information to carry out its
134 legal responsibility to protect the child from abuse,
135 abandonment, or neglect.
136 (a) Employees, authorized agents, or contract providers of
137 the department, the Department of Health, the Agency for Persons
138 with Disabilities, or county agencies responsible for carrying
139 out:
140 1. Child or adult protective investigations;
141 2. Ongoing child or adult protective services;
142 3. Early intervention and prevention services;
143 4. Healthy Start services;
144 5. Licensure or approval of adoptive homes, foster homes,
145 child care facilities, facilities licensed under chapter 393, or
146 family day care homes or informal child care providers who
147 receive subsidized child care funding, or other homes used to
148 provide for the care and welfare of children; or
149 6. Services for victims of domestic violence when provided
150 by certified domestic violence centers working at the
151 department's request as case consultants or with shared clients.
152 Also, employees or agents of the Department of Juvenile Justice
153 responsible for the provision of services to children, pursuant
154 to chapters 984 and 985.
155 (b) Criminal justice agencies of appropriate jurisdiction.
156 (c) The state attorney of the judicial circuit in which the
157 child resides or in which the alleged abuse or neglect occurred.
158 (b)(d) The parent or legal custodian of any child who is
159 alleged to have been abused, abandoned, or neglected, and the
160 child, and their attorneys, including any attorney representing
161 a child in civil or criminal proceedings. This access must shall
162 be made available within no later than 30 days after the
163 department receives the initial report of abuse, neglect, or
164 abandonment. However, any information otherwise made
165 confidential or exempt by law may shall not be released pursuant
166 to this paragraph.
167 (c)(e) Any person alleged in the report as having caused
168 the abuse, abandonment, or neglect of a child. This access must
169 shall be made available within no later than 30 days after the
170 department receives the initial report of abuse, abandonment, or
171 neglect and, if when the alleged perpetrator is not a parent, is
172 shall be limited to information involving the protective
173 investigation only and may shall not include any information
174 relating to subsequent dependency proceedings. However, any
175 information otherwise made confidential or exempt by law may
176 shall not be released pursuant to this paragraph.
177 (d)(f) A court upon its finding that access to such
178 information records may be necessary for determining the
179 determination of an issue before the court.; However, such
180 access is shall be limited to inspection in camera, unless the
181 court determines that public disclosure of the information
182 contained therein is necessary for the resolution of an issue
183 then pending before it.
184 (e)(g) A grand jury, by subpoena, upon determining its
185 determination that access to such information records is
186 necessary in the conduct of its official business.
187 (h) Any appropriate official of the department or the
188 Agency for Persons with Disabilities who is responsible for:
189 1. Administration or supervision of the department's
190 program for the prevention, investigation, or treatment of child
191 abuse, abandonment, or neglect, or abuse, neglect, or
192 exploitation of a vulnerable adult, when carrying out his or her
193 official function;
194 2. Taking appropriate administrative action concerning an
195 employee of the department or the agency who is alleged to have
196 perpetrated child abuse, abandonment, or neglect, or abuse,
197 neglect, or exploitation of a vulnerable adult; or
198 3. Employing and continuing employment of personnel of the
199 department or the agency.
200 (f)(i) Any person authorized by the department who is
201 engaged in the use of such records or information for bona fide
202 research, statistical, or audit purposes. Such individual or
203 entity must shall enter into a privacy and security agreement
204 with the department and shall comply with all laws and rules
205 governing the use of such records and information for research
206 and statistical purposes. The identifying information must
207 identifying the subjects of such records or information shall be
208 treated as confidential by the researcher and may shall not be
209 released in any form.
210 (g)(j) The Division of Administrative Hearings for purposes
211 of any administrative challenge.
212 (h)(k) Any appropriate official of a Florida advocacy
213 council investigating a report of known or suspected child
214 abuse, abandonment, or neglect.;
215 (i) The Auditor General or the Office of Program Policy
216 Analysis and Government Accountability for the purpose of
217 conducting audits or examinations pursuant to law.; or
218 (j) The guardian ad litem for the child.
219 (k)(l) Employees or agents of an agency of another state
220 that has comparable jurisdiction to the agencies jurisdiction
221 described in paragraph (a).
222 (m) The Public Employees Relations Commission for the sole
223 purpose of obtaining evidence for appeals filed pursuant to s.
224 447.207. Records may be released only after deletion of all
225 information which specifically identifies persons other than the
226 employee.
227 (n) Employees or agents of the Department of Revenue
228 responsible for child support enforcement activities.
229 (l)(o) Any person in the event of the death of a child
230 determined to be a result of abuse, abandonment, or neglect.
231 Information identifying the person reporting abuse, abandonment,
232 or neglect shall not be released. Any information otherwise made
233 confidential or exempt by law may shall not be released pursuant
234 to this paragraph.
235 (m)(p) The principal of a public school, private school, or
236 charter school where the child is a student. Identifying
237 information contained in the records that which the principal
238 determines are necessary for a school employee to effectively
239 provide a student with educational services may be released to
240 that employee.
241 (n)(q) Staff of a children's advocacy center that is
242 established and operated under s. 39.3035.
243 (o) Persons with whom the department is seeking to place
244 the child or placement has been granted, including foster
245 parents for whom an approved home study has been conducted, the
246 designee of a licensed residential group home described in s.
247 39.523, an approved relative or nonrelative with whom a child is
248 placed pursuant to s. 39.402(4), preadoptive parents for whom a
249 favorable preliminary adoptive home study has been conducted,
250 adoptive parents, or an adoption entity acting on behalf of
251 preadoptive or adoptive parents.
252 (9) Notwithstanding any other provision of law, the
253 secretary may release any record reasonably related to a case
254 that is already in the public domain, but must redact the
255 identity of the child unless the child’s name is also in the
256 public domain in the context of the case or the child is already
257 reasonably identifiable from information in the public domain.
258 Section 3. Section 415.107, Florida Statutes, is amended to
259 read:
260 415.107 Confidentiality of reports and records.—
261 (1) All personal identifying information for the following
262 persons contained in records relating to the abuse, neglect, or
263 exploitation of a vulnerable adult is In order to protect the
264 rights of the individual or other persons responsible for the
265 welfare of a vulnerable adult, all records concerning reports of
266 abuse, neglect, or exploitation of the vulnerable adult,
267 including reports made to the central abuse hotline, and all
268 records generated as a result of such reports shall be
269 confidential and exempt from s. 119.07(1): and may not be
270 disclosed except as specifically authorized by ss. 415.101
271 415.113.
272 (a) The adult victim;
273 (b) The adult victim's guardian or legal counsel unless the
274 guardian or legal counsel is arrested as a result of the report
275 of abuse, neglect, or exploitation or is the subject of an
276 injunction issued by a court; and
277 (c) The reporter of the alleged abuse, neglect, or
278 exploitation.
279 (2) Upon the request of the committee chairperson, access
280 to all records shall be granted to staff of the legislative
281 committees with jurisdiction over issues and services related to
282 vulnerable adults, or over the department. All confidentiality
283 provisions that apply to the Department of Children and Family
284 Services continue to apply to the records made available to
285 legislative staff under this subsection.
286 (2)(3) Access to personal identifying information all
287 records, excluding the name of the reporter which shall be
288 released only as provided in subsection (5) (6), shall be
289 granted only to the following persons, officials, and agencies:
290 (a) Employees, authorized agents, and providers contracting
291 with the department; any agency that provides services to
292 vulnerable adults; and any federal, state, or local governmental
293 entity that needs the information to carry out its legal
294 responsibility to protect the vulnerable adult from abuse,
295 neglect, or exploitation or agents of the department, the Agency
296 for Persons with Disabilities, the Agency for Health Care
297 Administration, or the Department of Elderly Affairs who are
298 responsible for carrying out protective investigations, ongoing
299 protective services, or licensure or approval of nursing homes,
300 assisted living facilities, adult day care centers, adult
301 family-care homes, home care for the elderly, hospices,
302 residential facilities licensed under chapter 393, or other
303 facilities used for the placement of vulnerable adults.
304 (b) A criminal justice agency investigating a report of
305 known or suspected abuse, neglect, or exploitation of a
306 vulnerable adult.
307 (c) The state attorney of the judicial circuit in which the
308 vulnerable adult resides or in which the alleged abuse, neglect,
309 or exploitation occurred.
310 (b)(d) The Any victim;, the victim's guardian, caregiver,
311 or legal counsel;, and any person who the department has
312 determined might be abusing, neglecting, or exploiting the
313 victim.
314 (c)(e) A court, by subpoena, upon its finding that access
315 to such information records may be necessary for determining the
316 determination of an issue before the court; however, such access
317 is must be limited to inspection in camera, unless the court
318 determines that public disclosure of the information contained
319 in such records is necessary for the resolution of an issue then
320 pending before it.
321 (d)(f) A grand jury, by subpoena, upon determining its
322 determination that access to such information records is
323 necessary in the conduct of its official business.
324 (e)(g) Any appropriate official of the Florida advocacy
325 council or long-term care ombudsman council investigating a
326 report of known or suspected abuse, neglect, or exploitation of
327 a vulnerable adult.
328 (h) Any appropriate official of the department, the Agency
329 for Persons with Disabilities, the Agency for Health Care
330 Administration, or the Department of Elderly Affairs who is
331 responsible for:
332 1. Administration or supervision of the programs for the
333 prevention, investigation, or treatment of abuse, neglect, or
334 exploitation of vulnerable adults when carrying out an official
335 function; or
336 2. Taking appropriate administrative action concerning an
337 employee alleged to have perpetrated abuse, neglect, or
338 exploitation of a vulnerable adult in an institution.
339 (i) Any person engaged in bona fide research or auditing.
340 However, information identifying the subjects of the report must
341 not be made available to the researcher.
342 (f)(j) Employees or agents of an agency of another state
343 that has jurisdiction comparable to the jurisdiction described
344 in paragraph (a).
345 (k) The Public Employees Relations Commission for the sole
346 purpose of obtaining evidence for appeals filed pursuant to s.
347 447.207. Records may be released only after deletion of all
348 information that specifically identifies persons other than the
349 employee.
350 (g)(l) Any person in the event of the death of a vulnerable
351 adult determined to be a result of abuse, neglect, or
352 exploitation. Information identifying the person reporting
353 abuse, neglect, or exploitation shall not be released. Any
354 information otherwise made confidential or exempt by law may
355 shall not be released pursuant to this paragraph.
356 (4) The Department of Health, the Department of Business
357 and Professional Regulation, and the Agency for Health Care
358 Administration may have access to a report, excluding the name
359 of the reporter, when considering disciplinary action against a
360 licensee or certified nursing assistant pursuant to allegations
361 of abuse, neglect, or exploitation.
362 (3)(5) The department may release to any professional
363 person such personal identifying information as is necessary for
364 the diagnosis and treatment of, and service delivery to, a
365 vulnerable adult or the person perpetrating the abuse, neglect,
366 or exploitation.
367 (4)(6) The identity of any person reporting abuse, neglect,
368 or exploitation of a vulnerable adult may not be released,
369 without that person's written consent, to any person other than
370 employees of the department responsible for protective services,
371 the central abuse hotline, or the appropriate state attorney or
372 law enforcement agency. This subsection grants protection only
373 for the person who reported the abuse, neglect, or exploitation
374 and protects only the fact that the person is the reporter. This
375 subsection does not prohibit the subpoena of a person reporting
376 the abuse, neglect, or exploitation if when deemed necessary by
377 the state attorney or the department to protect a vulnerable
378 adult who is the subject of a report, if the fact that the
379 person made the report is not disclosed.
380 (5)(7) For the purposes of this section, the term “access
381 to personal identifying information” means information a visual
382 inspection or copy of the hard-copy record maintained in the
383 district.
384 (6)(8) Personal identifying information in the central
385 abuse hotline may not be used for employment screening.
386 (7) Notwithstanding any other provision of law, the
387 secretary may release any record reasonably related to a case
388 that is already in the public domain, but must redact the
389 identity of the victim unless the victim’s name is also in the
390 public domain in the context of the case or is already
391 reasonably identifiable from information in the public domain.
392 Section 4. Subsection (10) of section 39.01, Florida
393 Statutes, is amended to read:
394 39.01 Definitions.—When used in this chapter, unless the
395 context otherwise requires:
396 (10) “Caregiver” means the parent, legal custodian,
397 permanent guardian, adult household member, or other person
398 responsible for a child's welfare as defined in subsection (47)
399 (46).
400 Section 5. Subsection (6) of section 39.201, Florida
401 Statutes, is amended to read:
402 39.201 Mandatory reports of child abuse, abandonment, or
403 neglect; mandatory reports of death; central abuse hotline.—
404 (6) Information in the central abuse hotline may not be
405 used for employment screening, except as provided in s.
406 39.202(2)(a) and (h). Information in the central abuse hotline
407 and the department's automated abuse information system may be
408 used by the department, its authorized agents or contract
409 providers, the Department of Health, or county agencies as part
410 of the licensure or registration process provided in pursuant to
411 ss. 402.301-402.319 and ss. 409.175-409.176.
412 Section 6. This act shall take effect July 1, 2009.