SD54 - The Study of Confidentiality of Juvenile Records
Executive Summary: During the 1992 and 1993 Sessions of the General Assembly, an unprecedented number of bills was introduced which sought to disclose previously confidential juvenile information. In particular, legislation establishing the Comprehensive Services Act For At-Risk Youth and Families and the Serious Habitual Offender Comprehensive Action Program (SHOCAP) and legislation resulting from the School Safety Summit for the first time allowed for disclosure and exchange of certain types of previously confidential juvenile information. This exchange of information takes place between local school divisions, local law enforcement agencies, local juvenile court service units, local community service boards and other human service agencies with the goal of developing interagency approaches to service delivery. The disclosure of information involves the release of juvenile court records, school records, abuse investigations, treatment records and other information. The disclosure was justified on the grounds that it would enhance services and provide greater community safety. The Senate Joint Resolution 205 study mandate called for the Commission on Youth to review recent legislation and analyze their effects on juvenile confidentiality provisions. Therefore, this study was less dependent upon data analysis and relied instead upon discussion and debate by professional state and local service providers serving youth and their families from each of the disciplines dealing with juvenile records. A work group representing social service agencies, the schools, the court service units, the courts, the press, civil liberties organizations, parent associations and victims' rights groups was formed. This study group met four times in Fall 1993 to review legislation and formulate recommendations for the Commission on Youth's consideration. For a listing of the work group membership, please refer to Appendix B. In addition to the work group's meetings, two additional activities contributed to the overall study recommendations. First, the Commission on Youth sponsored a public hearing on the issue of juvenile confidentiality. Thirteen speakers addressed the Commission on Youth members with their concerns regarding the recently enacted legislation. The responses of the public hearing were incorporated in the work group's overall recommendations. The public hearing notice and summary of the testimony can be found in Appendix C. The second additional activity involved participation by Commission on Youth staff in other statewide projects which related to the issues addressed in the legislation the work group was reviewing. Commission staff participated in the Department of Education's work group charged with the task of evaluating and rewriting the Department's regulations to incorporate recent changes in the state and federal laws. Staff also attended the work group of the Committee on District Courts and the Department of Education that was charged with developing procedures for the dissemination of juvenile court records to the local school divisions. On the basis of the SJR 205 work group's review, public hearing comments and consultation with the other statewide work groups addressing similar issues, the Commission on Youth offers sixteen recommendations concerning issues of juvenile confidentiality. Copies of the introduced legislation which reflects these recommendations can be found in Appendix D. A. Serious Habitual offender Comprehensive Action Program Recommendation 1 Request the Department of Criminal Justice Services to develop regulations regarding the SHOCAP program and revise the Code of Virginia to reflect the regulatory process. Recommendation 2 Introduce legislation which specifies a three-year time period for the accumulation of offenses that determine a juvenile's eligibility for a local SHOCAP program. In addition, program regulations should be developed, juvenile placement in the program should be under local discretion and information-sharing should be in accordance with federal law. Recommendation 3 Request the Department of Criminal Justice Services to consult with representatives from relevant agencies when developing SHOCAP guidelines to incorporate the following concepts: • inclusion of supervisory goals for the SHOCAP juveniles; • identification of conditions which constitute "graduation" or exiting from the program; • inclusion of periodic evaluation of progress toward program goals; • allowance for additional community members to participate in SHOCAP staffing when their client is being discussed; • definition of "authorized release of information" by SHOCAP team members; • identification of state and federal laws which impact SHOCAP program provisions; and, • provisions for the juvenile court to secure parental consent for the release of information prior to participation in the program. B. Comprehensive Services Act for At-Risk Youth and Families Recommendation 4 Introduce legislation that would exempt the proceedings of the Family Assessment and Planning teams of the Comprehensive Services Act from provisions of the Freedom of Information Act. Recommendation 5 Convey from the Commission on Youth to the Executive Management Council of the Comprehensive Services Act and the Department of Education the potential for conflict between local Family Assessment and Planning Team plans for juveniles and Individualized Education Program plans for special education students. Recommendation 6 Introduce legislation calling for a General Assembly study of mandatory state and federal confidentiality, disclosure and expungement laws which affect Virginia service providers. This study would identify: • existing state and federal confidentiality, disclosure and expungement laws across agencies and disciplines, • circumstances under which mandatory disclosure laws supersede confidentiality laws, • areas of conflict and needed clarification in the Code of Virginia concerning confidential records, and • areas where third party expungement laws are necessary. In addition, the study should contain provisions for the development of a statewide resource manual and training curriculum for Virginia service providers on the confidentiality and disclosure laws. C. School Safety Summit Legislation Recommendation 7 Amend recently enacted legislation concerning notification of delinquent adjudications to the schools by the Juvenile and Domestic Relations District Court to delineate the Code of Virginia citations which reflect the offenses that the School Safety Summit recommended and felonious offenses only within each of the categories of offenses included § 16.1-305.1. Recommendation 8 Introduce legislation which requires Circuit Court notification to the school superintendent when a juvenile has been transferred and found guilty for the offenses enumerated by the School Safety Summit participants. Recommendation 9 Introduce legislation which would delineate the procedures for school divisions to follow when receiving a notice from the juvenile court of a case disposition. These procedures would require that: • the superintendent disclose the information contained in the court notice if school board action is necessary to (i) protect the physical safety of either the juvenile or other students, or (ii) to make an alternative educational placement for the juvenile; • when the court notice is received by the principal, the notice shall be kept separate from the student's scholastic record; and • if school disciplinary action is taken as a result of the court notification (i) documentation concerning the disciplinary action shall be placed in the juvenile's Category II file, (ii) the student's parent, guardian or person standing in loco parentis must be informed of the action and allowed to respond to the record, and (iii) the committing juvenile court shall be informed of the disciplinary action. Recommendation 10 Introduce legislation which establishes guidelines for annual review and purging of court notices by school systems. Recommendation 11 Introduce legislation to require the clerk of court to notify the superintendent if an adjudication of delinquency or finding of guilt is overturned on appeal and to require that the original court notices that went to the school be purged. Recommendation 12 Introduce legislation which defines disciplinary records for school systems and sets forth a retention schedule for the records. • Disciplinary records would be defined as records that are directly related to a student and the disciplinary action taken against that student for violating school board or school rules or policies on school property or at school sponsored events. • Disciplinary records involving (i) possession and/or use of guns or other weapons, alcohol and other drugs, and assaults upon staff or others on school property or at school sponsored activities, and (ii) disciplinary actions taken as a result of a court notification in § 16.1-305.1 shall be destroyed when no longer educationally relevant. Disciplinary records of actions other than those defined in (i) and (ii) shall be destroyed at the end of each school year. Recommendation 13 Introduce legislation to require that schools notify students (if they are 18 years old), their parent, guardian, or other person standing in loco parentis, or other persons having control or charge of the student when the scholastic record is being transferred to a requesting school or school division. D. Related Issues Recommendation 14 Introduce legislation which defines Court Service Unit records in terms of (i) the types of juvenile information they contain, (ii) the nature of their confidentiality and (iii) their distinction from juvenile court records. Recommendation 15 Introduce legislation which allows the Department of Correctional Education to obtain scholastic records when providing local educational services to juveniles in jail. Recommendation 16 Introduce legislation which mandates that victim compensation appeal hearings for juveniles be closed and all written records of the proceedings, with the exception of the amount of monetary awards, be confidential. |
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