BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 899        Hearing Date:    June 23, 2015    
          
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          |Author:    |Levine                                               |
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          |Version:   |April 9, 2015                                        |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|AA                                                   |
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                   Subject:  Juveniles: Confidentiality of Records



          HISTORY

          Source:   Immigrant Legal Resource Center

          Prior Legislation:None

          Support:  Anti-Defamation League; Asian Americans Advancing  
          Justice - Asian Law      Caucus; Asian Pacific Islander Legal  
          Outreach; Bay Area Industrial Areas     Foundation; California  
          Civil Rights Law Group; California Conference for      Equality  
          and Justice; California Immigrant Policy Center; California  
          Rural Legal Assistance Foundation;  Canal Alliance; Catholic  
          Charities of the East Bay;         Catholic Legal Immigration  
          Network. Inc.; Center for Gender & Refugee Studies;    Central  
          American Resource Center; Centro Legal de la Raza; Chinese for  
          Affirmative Action; Communities Organized for Relational Power  
          in Action; Community United Against Violence; Communities United  
          for Restorative Youth    Justice; Dolores Street Community  
          Services; East Bay Community Law Center;     Esperanza Immigrant  
          Rights Project; Executive Committee of the Family Law  Section  
          of the State Bar of California (FLEXCOM) Fools Mission;  
          Huckleberry Youth Programs; Immigration Center for Women and  
          Children; International Institute of the Bay Area; Juvenile  
          Court Judges of California; Larkin Street Legal Services for  
          Prisoners with Children; Legal Advocates for Children and Youth;  







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          Legal Aid Society of San Mateo County; Legal Services for  
          Children; Legal Services for Prisoners with Children; National  
          Center for Lesbian Rights; National Center for Youth Law;  
          National Day Laborer Organizing Network; National Immigration  
          Law Center; Pangea Legal Services; Prison Law Office;  Public  
          Counsel; Sacramento Public Defender; San Diego Volunteer Lawyer  
          Program; San Francisco Public Defender; Santa Ana Boys and Men  
          of Color; Santa Clara Public Defender; Silicon Valley De-Bug;  
          Social Justice           Collaborative; UCI Law Clinic Immigrant  
          Rights Clinic; Urban Peace Movement;    the W. Haywood Burns  
          Institute; Youth Law Center

          Opposition:None Known

          Assembly Floor Vote:                 76 - 1


          



          PURPOSE

          The purpose of this bill is to enact a new statute explicitly  
          stating that, declaratory of existing law, confidential juvenile  
          files cannot be disclosed to federal officials absent a court  
          order, as specified.

          Current law defines a "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.)

          Current law 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 which shall be kept for that purpose and known as  
          the 'juvenile court record.'"  (Section 825.)








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          Current law 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).)

          Current law 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).)

          Current law 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).)

          Current law 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.  (Section 828(a).)

          Current law 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).)

          This bill would enact a new provision in the Welfare and  
          Institutions Code stating the following:

                 "It is the intent of the Legislature in enacting this  








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               section to clarify that juvenile court records should  
               remain confidential regardless of the juvenile's  
               immigration status. Confidentiality is integral to the  
               operation of the juvenile justice system in order to avoid  
               stigma and promote rehabilitation for all youth, regardless  
               of immigration status."

                 "Nothing in this article authorizes the disclosure of  
               juvenile information to federal officials absent a court  
               order of the judge of the juvenile court upon filing a  
               petition as provided by subparagraph (P) of paragraph (1)  
               of subdivision (a) of Section 827."

                 "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 upon filing  
               a petition as provided by subparagraph (P) of paragraph (1)  
               and paragraph (4) of subdivision (a) of Section 827."

                 "Nothing in this article authorizes the attachment of  
               juvenile information to any other documents given to, or  
               provided by, federal officials absent prior approval of the  
               presiding judge of the juvenile court as provided by  
               paragraph (4) of subdivision (a) of Section 827."

                 "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,  
               child welfare agency, or law enforcement agency."

                 "Nothing in this section shall be construed as  
               authorizing any disclosure that would otherwise violate  
               this article."


                 "The Legislature finds and declares that this section is  
               declaratory of existing law."









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          This bill states uncodified legislative intent language "that  
          juvenile records remain confidential in order to serve the  
          compelling interest of avoiding stigma and promoting  
          rehabilitation for juveniles. It is not the intent of the  
          Legislature to attempt to resist federal officials."

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

            "      143% of design bed capacity by June 30, 2014;

            "      141.5% of design bed capacity by February 28, 2015;  
                 and,

            "      137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  








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          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

            "      Whether a proposal erodes a measure which has  
                 contributed to reducing the prison population;

            "      Whether a proposal addresses a major area of public  
                 safety or criminal activity for which there is no other  
                 reasonable, appropriate remedy;

            "      Whether a proposal addresses a crime which is directly  
                 dangerous to the physical safety of others for which  
                 there is no other reasonably appropriate sanction; 

            "      Whether a proposal corrects a constitutional problem or  
                 legislative drafting error; and

            "      Whether a proposal proposes penalties which are  
                 proportionate, and cannot be achieved through any other  
                 reasonably appropriate remedy.



          COMMENTS

          1.   Stated Need for This Bill

          The author states:

               The purpose of this bill is to protect minors from  
               improper disclosures of their juvenile records,  
               regardless of their immigration status. Under existing  
               California law, juvenile court case files of dependent  
               children and wards are to be kept confidential, except  
               from certain specified parties or pursuant to a court  
               order upon filing a petition in juvenile court. 

               Although current California law does not exempt  
               federal officials, including immigration officials,  
               from having to petition the court to obtain juvenile  








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               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 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.

           2.   Background - Juvenile Records Confidentiality;  
           Federal Officials

           Existing legislative intent states 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."   








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           (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.)

           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 is 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  








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           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 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.  

           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  
               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'  








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               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.

           In the T.N.G.case, the court 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, the Bureau of Immigration and  
           Customs Enforcement (ICE) "issued 211 detainers for youth  
           in juvenile detention centers in California [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." 

           The Bureau of Immigration and Customs Enforcement (ICE)  
           appears to be prohibited by federal regulation from  








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           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.) 

           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.)  
             

           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."   

                                      -- END -













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