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