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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