BILL ANALYSIS Ó AB 899 Page A Date of Hearing: April 7, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 899 (Levine) - As Introduced February 26, 2015 As Proposed to be Amended SUBJECT: Juveniles: confidentiality of records KEY ISSUE: SHOULD THE LEGISLATURE RESTATE ITS INTENT THAT RECORDS ABOUT JUVENILES, INCLUDING RECORDS IN JUVENILE CASE FILES, CANNOT LAWFULLY BE DISCLOSED TO ANYONE OTHER THAN A PERSON WHO IS AUTHORIZED BY LAW TO REVIEW THEM ABSENT A JUVENILE COURT ORDER ALLOWING DISCLOSURE IN ORDER TO CLARIFY THAT THESE CONFIDENTIALITY PROTECTIONS APPLY REGARDLESS OF THE IMMIGRATION STATUS OF THE PERSON WHO IS THE SUBJECT OF THE JUVENILE RECORD? SYNOPSIS This bill clarifies and restates the Legislature's intent, originally expressed in Section 827 of the Welfare and Institutions Code, that records relating to proceedings of the juvenile court should remain confidential and only be accessed by those individuals and entities who are authorized by law to inspect them, except when a juvenile court, after weighing the interests in favor of disclosure and nondisclosure and upon proper application, orders that another individual or entity may AB 899 Page B access them. Specifically, the bill seeks to clarify that information about the immigration status of a minor or nonminor contained in records related to proceedings of the juvenile court should not be shared with or by federal immigration officials. The author presents evidence that despite Section 827 clear prohibitions against disclosure and dissemination of juvenile records, some probation departments in the state are routinely providing information relating to juveniles directly to federal immigration authorities without obtaining authorization from the juvenile court. Because the bill's original definition of "juvenile information" did not encompass all information that is protected from disclosure by Section 827 and the case law interpreting it, the author has agreed to expand the definition to encompass all of those records. There is no reported opposition to the bill. SUMMARY: Clarifies that information about a minor who is or has been the subject of juvenile dependency or wardship proceedings is confidential and can only be disclosed to specified persons, or to others designated by court order of the judge of the juvenile court upon the filing of a petition. Specifically, this bill: 1)States that it is the intent of the Legislature that juvenile records remain confidential in order to serve the compelling interest of avoiding stigma and promoting rehabilitation for juveniles, but it is not the intent of the Legislature to attempt to resist federal officials. 2)States that it is the intent of the Legislature in enacting this section to clarify that juvenile court records should remain confidential regardless of the juvenile's immigration status. 3)States that existing law does not authorize disclosure of any of the following, absent a court order of the judge of the juvenile court, upon proper application thereto: (a) the AB 899 Page C disclosure of juvenile information to federal officials; (b) the dissemination of juvenile information to, or by, federal officials; (c) the attachment of juvenile information to any other documents given to, or provided by, federal officials. 4)Defines "juvenile information" to include the "juvenile case file," as defined in subdivision (e) of Section 827, and "information related to the juvenile, including, but not limited to, name, date or place of birth, and immigration status." 5)States that "Nothing in this section shall be construed as authorizing any disclosure that would otherwise violate this article." 6)States that the "Legislature finds and declares that this section is declaratory of existing law." EXISTING LAW: 1)Defines "juvenile case file," as a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer. (Welfare & Institutions Code Section 827(e). All statutory references are to the Welfare & Institutions Code, unless otherwise indicated.) 2)Requires that the "order and findings of the superior court in each case [under the provisions of this chapter] shall be entered in a suitable book or other form of written record AB 899 Page D which shall be kept for that purpose and known as the 'juvenile court record.'" (Section 825.) 3)Provides that only specified parties, including but not limited to court personnel, a district attorney, a city attorney, a minor who is the subject of the proceeding, the minor's parents or guardian, the attorneys for the parties, and "[a]ny other person who may be designated by court order of the judge of the juvenile court upon filing a petition" are authorized to inspect a juvenile "case file." (Section 827(a).) 4)Provides that a juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be disseminated by the receiving agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section. (Section 827(a)(1)(P)(4).) 5)Provides that a juvenile case file, any portion thereof, and information relating to the content of the juvenile case file, may not be made as an attachment to any other documents without the prior approval of the presiding judge of the juvenile court, unless it is used in connection with and in the course of a criminal investigation or a proceeding brought to declare a person a dependent child or ward of the juvenile court. (Section 827(a)(1)(P)(4).) 6)Allows the disclosure of any information gathered by a law enforcement agency, including the Department of Justice, relating to the taking of a minor into custody (including disposition information about juvenile court proceedings) to be disclosed to another law enforcement agency or to any person or agency which has a legitimate need for the information for purposes of official disposition of a case. AB 899 Page E (Section 828(a).) 7)Provides that when a petition is sustained for one of the serious or violent offenses listed in Section 676 subdivision (a), specified documents in the juvenile court file (and no others) are available for public inspection: the charging petition, the minutes of the proceeding, and the orders of adjudication and disposition of the court. (Section 676(d).) FISCAL EFFECT: As currently in print this bill is keyed non-fiscal. COMMENTS: It is the express intent of the Legislature that "juvenile court records, in general, should be confidential." (Section 827(b)(1).) This presumption reflects a long recognized public policy of protecting the confidentiality of juvenile proceedings and records. (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 778.) Only those persons who are listed in Section 827 are authorized to inspect records in a juvenile case file without a court order. The juvenile court has exclusive authority to determine the extent to which confidential juvenile records may be released and, if it grants a petition, also has exclusive control over "the time, place and manner of inspection." (In re Gina S. (2005) 133 Cal.App.4th 1074, 1081-1082.) Parties who are authorized to inspect the juvenile court file are not automatically authorized to copy documents in the file. (Id, at p. 1082.) The juvenile court has the authority to not only deny disclosure of juvenile court records, but also to order the return of all copies of juvenile case file documents. (Id, at p. 1084-85.) The juvenile court, not the person who is in possession of juvenile court records, has the authority to decide to whom juvenile court records may lawfully be released. (In re Keisha T. (1995) 38 Cal. App. 4th 220, 234.) AB 899 Page F The California Rules of Court provide guidance to juvenile courts about whether to allow disclosure of juvenile court records. (See In re Keisha T., supra, 38 Cal.App.4th at p. 235.) Rule 1423(b) provides, in relevant part, "In determining whether to authorize inspection or release of juvenile court records, in whole or in part, the court must balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public. The court must permit disclosure of, discovery of, or access to juvenile court records or proceedings only insofar as is necessary, and only if there is a reasonable likelihood that the records in question will disclose information or evidence of substantial relevance to the pending litigation, investigation, or prosecution." Information about a minor that is gathered in the course of a juvenile court proceeding - whether a name, date of birth, country of birth, or charging information - is protected, as are documents that are found either in the juvenile case file or created in connection with a juvenile case. (T.N.G. v. Superior Court, supra, 4 Cal. 3d at pp. 780-81.) These protections extend to law enforcement agencies that are not directly connected to the juvenile court. The fact that information happens to be stored within a law enforcement record is irrelevant to the issue of confidentiality because law enforcement records about juveniles "become equivalent to court records and remain under the control of the juvenile court." (T.N.G., supra, 4 Cal. 3d at 781; see also Cal. Ct. Rule 5.552(a)(4) [providing that the juvenile case file includes "[d]ocuments relating to a child concerning whom a petition has been filed in juvenile court that are maintained in the office files of probation officers"].) Even documents that relate to minors who are not detained are subject to the protections of Section 827. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1315; Wescott v. County of Yuba (1980) 104 Cal. App. 3d 103, 108.) The court in Westcott reasoned that disclosure of information about a law enforcement encounter with juveniles was inappropriate because of "[t]he stigma and ridicule which could AB 899 Page G occur if a third party is given the report," which outweighed the interests of the requester. (Wescott v. County of Yuba, supra, at p. 108.) "The mere fact that the minors, in this case, were not taken into formal custody does not reduce the potentially harmful effect the release of the police report could have on them. (Ibid.) The Legislature has reiterated its intent to protect the confidentiality of information related to juvenile court proceedings held by law enforcement agencies. Section 827.9 provides that, "It is the intent of the Legislature to reaffirm its belief that records or information gathered by law enforcement agencies relating to the taking of a minor into custody, temporary custody, or detention (juvenile police records) should be confidential." California Rule of Court 5.552(f) requires the filing of JV-575 with the juvenile court to obtain information gathered by a law enforcement agency regarding the taking of a minor into custody. Evidence that juvenile information is being shared with federal immigration officials by some probation departments, despite prohibitions in existing law. Despite the Legislature's clear intent to limit disclosure of information related to juvenile court proceedings, some entities that have or obtain the information may be circumventing these legal protections in violation of state law. Indeed, the practice of disclosing confidential juvenile information may be relatively common. For example, a 2012 advisory by the Stanford University Law School Immigrants' Rights Clinic warned about what it characterized as? . . . the troubling practice of San Mateo County Probation Department ("Probation") disclosing confidential information about youth in the juvenile justice system to Immigration and Customs Enforcement ("ICE"). Probation obtains this confidential information during initial AB 899 Page H meetings with youth, when the youth are typically alone and unrepresented by counsel. Because of the relationship of trust between youth and Probation, youth often disclose very personal information, including their address, parents' names and employment, previous delinquency dispositions, developmental issues, school history, medical records, descriptions of home life, and immigration status or other immigration related information, such as foreign place of birth. When Probation suspects that a youth lacks immigration status, Probation has shared the youth's confidential information with ICE, without first obtaining the juvenile court's permission, as it is required to do under § 827 of the California Welfare and Institutions Code. This is not to say that all (or even most) law enforcement agencies and probation departments inappropriately disseminate juvenile court records. In fact, the court in T.N.G. used the police and probation departments of San Francisco to exemplify how other law enforcement agencies should protect the confidentiality of juvenile court information. "[T]he police and probation departments of San Francisco do not reveal detention records to third parties without court order. Welfare and Institutions Code section 827 reposes in the juvenile court control of juvenile records and requires the permission of the court before any information about juveniles is disclosed to third parties by any law enforcement official. The police department of initial contact may clearly retain the information that it obtains from the youths' detention, but it must receive the permission of the juvenile court pursuant to section 827 in order to release that information to any third party, including state agencies." (T.N.G. v. Superior Court, supra, 4 Cal.3d, at pp. 780-781.) According to the author, as explained in the table below, the Bureau of Immigration and Customs Enforcement (ICE) "issued 211 detainers for youth in juvenile detention centers in California AB 899 Page I [during a 21 month period] in Fiscal Years 2012 and 2013 [ http://trac.syr.edu .] . .. This means that at a minimum, 211 breaches of confidentiality occurred during the reporting period. These numbers do not, however, reflect all violations of confidentiality since many youth who are reported to ICE do not receive a detainer. Accordingly, it is likely that far more than 211 violations of juvenile confidentiality occurred." ---------------------------------------------------------------- |FACILITY |Number |Level |Level|Level|Not | | |of |1<1> | 2 | 3 |Convict| | |Detainer| | | |ed | | |s | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |CAYANRC - CA YOUTH |1 |0% |0% |0% |100% | |AUTHORITY/NRC | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |ELJUVCA - EASTLAKE JUVENILE |2 |0% |0% |0% |100% | |HALL | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |JJUSTCA - JUVENILE JUSTICE |1 |0% |0% |0% |100% | |CENTER | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |ORJUVCA - ORANGE COUNTY |100 |23% |19% |25% |33% | |JUV. HALL | | | | | | --------------------------- <1> From most serious (Level 1) to least serious (Level 3) based on "ICE Criminal Offense Levels Business Rules." AB 899 Page J | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |SBAJUCA - SANTA BARBARA CO |40 |8% |5% |25% |63% | |JUVENILE | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |SCJUVCA - SANTA CRUZ CO |5 |40% |0% |0% |60% | |JUVENILE | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |SFJUVCA - SAN FRANCISCO |32 |25% |9% |0% |66% | |JUVY HALL | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |SLJUVCA - SAN LUIS OBISPO |1 |0% |0% |0% |100% | |CO. JUVEN | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |SMJUVCA - SAN MATEO |17 |6% |18% |12% |65% | |JUVENILLE HALL | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |SWKEYCA - SOUTHWEST KEYS |1 |0% |0% |0% |100% | |JUV. FAC. | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |TEJUVCA - TEHAMA COUNTY |1 |0% |0% |100% |0% | |JUVENILE | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |TULJUCA - TULARE COUNTY |5 |20% |0% |0% |80% | AB 899 Page K |JUVENILE FACILITY | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |YOUTHCA - CALIF. YOUTH |5 |60% |20% |20% |0% | |AUTHORITY | | | | | | | | | | | | | | | | | | | | |----------------------------+--------+------+-----+-----+-------| |TOTAL |211 | | | | | | | | | | | | | | | | | | | ---------------------------------------------------------------- Ability to prohibit the dissemination of juvenile information by federal officials. This bill provides that, "Nothing in this article authorizes the dissemination of juvenile information to, or by, federal officials absent a court order of the judge of the juvenile court." While it would certainly be appropriate to clarify that current state law does not authorize the disclosure of juvenile court information to a federal official, it may be less clear that the Legislature has authority to control what federal officials do with juvenile court information once it is in their possession, even if the information was obtained unlawfully. However, the Bureau of Immigration and Customs Enforcement (ICE) is clearly prohibited by federal regulation from obtaining and using confidential information. (5 C.F.R. 2635.703(a).) The regulation forbids "'the improper use of nonpublic information to further [an employee's] own private interest . . . by knowing unauthorized disclosure.' Nonpublic information is defined as information the employee gains by reason of federal employment and 'knows or reasonably should know has not been made available to the general public . . . [or] been disseminated to the general public.' (5 C.F.R. 2635.703(b).)" (Chuyon Yon Hong v. Mukasey (9th Cir. 2008) 518 F.3d 1030, 1035.) AB 899 Page L Information obtained in violation of federal regulations, or state law is subject to exclusion from deportation proceedings. The United State Supreme Court has observed (in dicta) that while exclusion of illegally obtained evidence from deportation proceedings is infrequent, there are several cases where exclusion is required: when the internal regulations of the immigration agency have been violated (See INS v. Delgado (1984) 466 U.S. 210) and when there are "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." (Immigration & Naturalization Service v. Lopez-Mendoza (1984) 468 U.S. 1032, 1050-1051.) Given the clear intent of the Legislature to prohibit the disclosure and dissemination of juvenile records to persons who are not specifically authorized to obtain them, it is entirely consistent with state law, federal regulations, and federal law for this bill to prohibit the further disclosure and dissemination of confidential juvenile information by federal immigration authorities. According to the author: Although current California law does not exempt federal officials, including immigration officials, from having to petition the court to obtain juvenile case information and files, many local counties disagree, citing that there is no explicit statement in state law that federal officials must follow this process. Consequently, some local and state agencies are automatically sharing information with federal immigration officials, without following the procedure enumerated in California Welfare & Institutions Code § 827, which requires filing a separate petition with the juvenile court requesting the files. This is problematic because the petitioning procedure in Welfare & Institutions Code § 827 recognizes that juvenile AB 899 Page M courts have exclusive authority to determine the extent to which juvenile records should be released to third parties given the court's sensitivity and expertise in this area. Further, the procedure provides the minor, his/her parents and his/her attorney (among others) the opportunity to contest the sharing of confidential information that may be contrary to his/her rehabilitation and best interests. This bill makes absolutely clear that federal officials, like all other parties seeking access to juvenile court files who are not actively involved in the proceedings, must file a petition pursuant to Welfare & Institutions Code § 827 in order to request access to a youth's juvenile case file. Effect on Pending Litigation. According to the author, "the issues addressed by the bill are the subject of two pending appeals in the First Appellate District: The People v. Y.V., No. A142355 (Cal. App. 1st Dist. filed July 1, 2014); The People v. C.H., No. A141758 (Cal. App. 1st Dist. filed May 1, 2014). This bill will clarify that the probation department cannot disclose confidential juvenile information to federal immigration officials without going through the petitioning process in § 827, as it failed to do in both cases." Although the Legislature in general and this Committee in particular are reluctant to interfere in pending litigation, any impact on the cases cited by the author would seem to be appropriate in the limited instance of this bill, given the fact that it basically restates existing law and reiterates past expressions of legislative intent. The new definition for "juvenile information" in this bill. As introduced, this bill defined "juvenile information" to include "information related to the juvenile, including, but not limited to, name, date or place of birth, and immigration status," as well as the "juvenile case file" [as defined in subdivision (e) AB 899 Page N of Section 827]. It is the author's intent to express the Legislature's intent to protect all information identifying the minor and all records that courts have found to be protected by the presumption of confidentiality in Section 827, including documents "relating to a child concerning whom a petition has been filed in juvenile court that are maintained in the office files of probation officers" (T.N.G., supra, 4 Cal. 3d at 781) and documents that relate to minors who are encountered by law enforcement but not detained (Wescott v. County of Yuba, supra, at p. 108.) Those documents are not necessarily included within the minor's juvenile court "case file," and therefore were not necessarily covered by the bill's original definition of "juvenile information." Given the intent of both the California courts and the Legislature to offer broad protection to information about minors who encounter law enforcement, including but not limited to information about minors who are the subject of juvenile court proceedings, the author has appropriately agreed to further clarify the definition of "juvenile information" as follows: (e) For purposes of this section, "juvenile information" includes the "juvenile case file," as defined in subdivision (e) of Section 827, and information related to the juvenile, including, but not limited to, name, date or place of birth, and the immigration status of the juvenile that is obtained or created independent of, or in connection with, juvenile court proceedings about the juvenile and maintained by any government agency, including but not limited to, a court, probation office, a child welfare agency, or a law enforcement agency. This amendment is not only consistent with the case law cited above and the presumption of confidentiality of juvenile records, but also with the prohibition on dissemination of AB 899 Page O juvenile information by an agency that is authorized to receive such information in Section 827. Any agency authorized to have a juvenile record is prohibited by existing law from attaching the record "to any other documents without the prior approval of the presiding judge of the juvenile court, unless it is used in connection with and in the course of a criminal investigation or a proceeding brought to declare a person a dependent child or ward of the juvenile court." (Section 827(a)(1)(P)(4).) The amendment will further clarify the type of records that are protected from disclosure and dissemination by Section 827. REGISTERED SUPPORT / OPPOSITION: Support Immigrant Legal Resource Center (sponsor) California Immigrant Policy Center Centro Legal de la Raza Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM) AB 899 Page P Immigration Center for Women and Children Juvenile Court Judges of California Larkin Street Legal Services for Prisoners with Children National Center for Lesbian Rights Public Counsel Opposition None on file Analysis Prepared by:Alison Merrilees / JUD. / (916) 319-2334 AB 899 Page Q