Amended in Assembly March 18, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2103

Introduced by Assembly Member Burke

February 17, 2016

An act to amend Section begin delete 827 of the Welfare and Institutions end delete begin insert 49077 of the Education end insert Code, relating to begin delete juveniles. end delete begin insert pupil records. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2103, as amended, Burke. begin delete Juveniles: case file inspection. end delete begin insert Pupil records: court orders: disclosure exceptions. end insert

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(1) Existing law requires information concerning a student to be furnished in compliance with a court order or a lawfully issued subpoena. Existing law requires a school district to make a reasonable effort to notify the parent or legal guardian and the pupil in advance of compliance with a lawfully issued subpoena and, in the case of compliance with a court order, if lawfully possible within the requirements of the order.

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This bill would, consistent with federal law, instead require an educational agency or institution to make that disclosure but would exempt an educational agency or institution from that requirement if the disclosure is made in compliance with (A) a subpoena issued by a grand jury and the court has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed or (B) any other subpoena issued for a law enforcement purpose and the court or other issuing agency has ordered that the existence or the contents of the subpoena or the information furnished in response to the subpoena not be disclosed. To the extent the bill would impose additional duties on county offices of education or charter schools, the bill would impose a state-mandated program.

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(2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Existing law requires the case file of a dependent child or ward of the juvenile court to be kept confidential, except as specified. Existing law authorizes only certain persons to inspect the case file, including, among others, the attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers, who are actively participating in proceedings involving the child.

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This bill would make technical, nonsubstantive changes to these provisions.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert (a) end insert begin insert   end insert begin insert The Legislature finds and declares all of the
following: end insert

begin insert

(1) The state has a compelling interest in protecting the welfare
of its children.

end insert begin insert

(2) Under Section 13 of Article V of the California Constitution,
the Attorney General has the duty and broad authority to ensure
that the laws of the state are uniformly and adequately enforced
for the protection of public rights and interests.

end insert begin insert

(3) The Attorney General is the chief law officer of the state and
head of the Department of Justice.

end insert begin insert

(4) The Attorney General possesses parens patriae standing to
bring legal actions for violations of any laws that affect the health
and welfare of the state’s citizens.

end insert begin insert

(5) Absent a legislative restriction, the Attorney General may
file any civil action or proceeding directly involving the rights and
interests of the state, or which is deemed necessary for the
enforcement of the laws of the state, the preservation of order, and
the protection of public rights and interests.

end insert begin insert

(6) The Bureau of Children’s Justice is a section within the
Department of Justice, created to ensure that state laws and
regulations enacted to protect children are consistently and
effectively enforced.

end insert begin insert

(7) The mission of the Bureau of Children’s Justice is to protect
the rights of children and focus the attention and resources of law
enforcement and policymakers on the importance of safeguarding
every child so they can meet their full potential.

end insert begin insert

(8) The Bureau of Children’s Justice utilizes the Department of
Justice’s criminal and civil law enforcement powers to oversee
and monitor laws that affect children, including education, civil
rights, consumer protection, nonprofit charities, child welfare,
privacy and identity fraud, and fraud.

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(9) The Attorney General’s jurisdiction to enforce state laws
relating to children is concurrent to and independent from the
jurisdiction of other state agencies that oversee and monitor laws
that affect the health, education, and welfare of the state’s children.

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(10) The Family Educational Rights and Privacy Act (20 U.S.C.
Sec. 1232g) is a federal law that protects the privacy of pupil
educational records.

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(11) The United States Department of Education has
implemented regulations pursuant to the federal Family
Educational Rights and Privacy Act. Section 99.31(a)(9) of Title
34 of the Code of Federal Regulations sets forth conditions when
disclosure to comply with a judicial order or lawfully issued
subpoena is required but does not require an educational agency
or institution to make a reasonable effort to notify the parent or
eligible pupil of the order or subpoena in advance of compliance
where the disclosure is in compliance with (A) a federal grand
jury subpoena and the court has ordered that the existence or the
contents of the subpoena or the information furnished in response
to the subpoena not be disclosed or (B) any other subpoena issued
for a law enforcement purpose and the court or other issuing
agency has ordered that the existence or the contents of the
subpoena or the information furnished in response to the subpoena
not be disclosed.

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(12) Article 5 (commencing with Section 49073) of Chapter 6.5
of Part 27 of Division 4 of Title 2 of the Education Code provides
for the privacy protection of pupil records.

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(13) Section 49077 of the Education Code sets forth conditions
for disclosure of pupil information in compliance with a court
order or lawfully issued subpoena and requires a school district
to make a reasonable effort to notify the parent or legal guardian
and the pupil in advance of compliance with a lawfully issued
subpoena and, in the case of compliance with a court order, if
lawfully possible within the requirements of the order.

end insert begin insert

(14) The conditions for disclosure of pupil information in
compliance with a lawfully issued subpoena set forth in the
Education Code are not consistent with the federal Family
Educational Rights and Privacy Act and its implementing
regulations.

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(b) Therefore, it is the intent of the Legislature to amend
California state law to be consistent with federal law and
regulations and the above findings and declarations.

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begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 49077 of the end insert begin insert Education Code end insert begin insert is amended to
read: end insert

49077.  

begin insert (a) end insert begin insert   end insert Information concerning a begin delete student end delete begin insert pupil end insert shall be
furnished in compliance with a court order or a lawfully issued
subpoena. The begin delete school district end delete begin insert educational agency or institution end insert
shall make a reasonable effort to notify the parent or legal guardian
and the pupil in advance of compliance with a lawfully issued
subpoena and, in the case of compliance with a court order, if
lawfully possible within the requirements of the order.

begin insert

(b) Consistent with Section 99.31(a)(9)(ii) of Title 34 of the
Code of Federal Regulations, the notification required pursuant
to subdivision (a) shall not apply if the disclosure is in compliance
with either of the following:

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(1) A subpoena issued by a grand jury and the court has
ordered that the existence or the contents of the subpoena or the
information furnished in response to the subpoena not be disclosed.

end insert begin insert

(2) Any other subpoena issued for a law enforcement purpose
and the court or other issuing agency has ordered that the existence
or the contents of the subpoena or the information furnished in
response to the subpoena not be disclosed.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert begin insert

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
this act implements a federal law or regulation and results only
in costs mandated by the federal government, within the meaning
of Section 17556 of the Government Code.

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begin delete

SECTION 1.  

Section 827 of the Welfare and Institutions Code
is amended to read:

827.  

(a) (1) Except as provided in Section 828, a case file
may be inspected only by the following:

(A) Court personnel.

(B) The district attorney, a city attorney, or city prosecutor
authorized to prosecute criminal or juvenile cases under California
law.

(C) The minor who is the subject of the proceeding.

(D)  The minor’s parents or guardian.

(E) The attorneys for the parties, judges, referees, other hearing
officers, probation officers, and law enforcement officers who are
actively participating in criminal or juvenile proceedings involving
the minor.

(F) The county counsel, city attorney, or any other attorney
representing the petitioning agency in a dependency action.

(G) The superintendent or designee of the school district where
the minor is enrolled or attending school.

(H) Members of the child protective agencies referred to in
Section 11165.9 of the Penal Code.

(I) The State Department of Social Services, to carry out its
duties pursuant to Division 9 (commencing with Section 10000),
and Part 5 (commencing with Section 7900) of Division 12 of the
Family Code to oversee and monitor county child welfare agencies,
children in foster care or receiving foster care assistance, and
out-of-state placements, Section 10850.4, and paragraph (2).

(J) Authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized
representatives of, the State Department of Social Services, as
necessary to the performance of their duties to inspect, license,
and investigate community care facilities, and to ensure that the
standards of care and services provided in those facilities are
adequate and appropriate and to ascertain compliance with the
rules and regulations to which the facilities are subject. The
confidential information shall remain confidential except for
purposes of inspection, licensing, or investigation pursuant to
Chapter 3 (commencing with Section 1500) and Chapter 3.4
(commencing with Section 1596.70) of Division 2 of the Health
and Safety Code, or a criminal, civil, or administrative proceeding
in relation thereto. The confidential information may be used by
the State Department of Social Services in a criminal, civil, or
administrative proceeding. The confidential information shall be
available only to the judge or hearing officer and to the parties to
the case. Names that are confidential shall be listed in attachments
separate to the general pleadings. The confidential information
shall be sealed after the conclusion of the criminal, civil, or
administrative hearings, and may not subsequently be released
except in accordance with this subdivision. If the confidential
information does not result in a criminal, civil, or administrative
proceeding, it shall be sealed after the State Department of Social
Services decides that no further action will be taken in the matter
of suspected licensing violations. Except as otherwise provided in
this subdivision, confidential information in the possession of the
State Department of Social Services shall not contain the name of
the minor.

(K) Members of children’s multidisciplinary teams, persons, or
agencies providing treatment or supervision of the minor.

(L) A judge, commissioner, or other hearing officer assigned
to a family law case with issues concerning custody or visitation,
or both, involving the minor, and the following persons, if actively
participating in the family law case: a family court mediator
assigned to a case involving the minor pursuant to Article 1
(commencing with Section 3160) of Chapter 11 of Part 2 of
Division 8 of the Family Code, a court-appointed evaluator or a
person conducting a court-connected child custody evaluation,
investigation, or assessment pursuant to Section 3111 or 3118 of
the Family Code, and counsel appointed for the minor in the family
law case pursuant to Section 3150 of the Family Code. Prior to
allowing counsel appointed for the minor in the family law case
to inspect the file, the court clerk may require counsel to provide
a certified copy of the court order appointing him or her as the
minor’s counsel.

(M) A court-appointed investigator who is actively participating
in a guardianship case involving a minor pursuant to Part 2
(commencing with Section 1500) of Division 4 of the Probate
Code and acting within the scope of his or her duties in that case.

(N) A local child support agency for the purpose of establishing
paternity and establishing and enforcing child support orders.

(O) Juvenile justice commissions as established under Section
225. The confidentiality provisions of Section 10850 shall apply
to a juvenile justice commission and its members.

(P) Any other person who may be designated by court order of
the judge of the juvenile court upon filing a petition.

(2) (A) Notwithstanding any other law and subject to
subparagraph (A) of paragraph (3), juvenile case files, except those
relating to matters within the jurisdiction of the court pursuant to
Section 601 or 602, that pertain to a deceased child who was within
the jurisdiction of the juvenile court pursuant to Section 300, shall
be released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been
afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from
the juvenile case file prior to release, unless a specific order is
made by the juvenile court to the contrary. Except as provided in
this paragraph, the presiding judge of the juvenile court may issue
an order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing by
a preponderance of evidence that release of the juvenile case file
or any portion thereof is detrimental to the safety, protection, or
physical or emotional well-being of another child who is directly
or indirectly connected to the juvenile case that is the subject of
the petition.

(B) This paragraph represents a presumption in favor of the
release of documents when a child is deceased unless the statutory
reasons for confidentiality are shown to exist.

(C) If a child whose records are sought has died, and documents
are sought pursuant to this paragraph, no weighing or balancing
of the interests of those other than a child is permitted.

(D) A petition filed under this paragraph shall be served on
interested parties by the petitioner, if the petitioner is in possession
of their identity and address, and on the custodian of records. Upon
receiving a petition, the custodian of records shall serve a copy of
the request upon all interested parties that have not been served
by the petitioner or on the interested parties served by the petitioner
if the custodian of records possesses information, such as a more
recent address, indicating that the service by the petitioner may
have been ineffective.

(E) The custodian of records shall serve the petition within 10
calendar days of receipt. If any interested party, including the
custodian of records, objects to the petition, the party shall file and
serve the objection on the petitioning party no later than 15
calendar days of service of the petition.

(F) The petitioning party shall have 10 calendar days to file any
reply. The juvenile court shall set the matter for hearing no more
than 60 calendar days from the date the petition is served on the
custodian of records. The court shall render its decision within 30
days of the hearing. The matter shall be decided solely upon the
basis of the petition and supporting exhibits and declarations, if
any, the objection and any supporting exhibits or declarations, if
any, and the reply and any supporting declarations or exhibits
thereto, and argument at hearing. The court may solely upon its
own motion order the appearance of witnesses. If no objection is
filed to the petition, the court shall review the petition and issue
its decision within 10 calendar days of the final day for filing the
objection. Any order of the court shall be immediately reviewable
by petition to the appellate court for the issuance of an
extraordinary writ.

(3) Access to juvenile case files pertaining to matters within the
jurisdiction of the juvenile court pursuant to Section 300 shall be
limited as follows:

(A) If a juvenile case file, or any portion thereof, is privileged
or confidential pursuant to any other state law or federal law or
regulation, the requirements of that state law or federal law or
regulation prohibiting or limiting release of the juvenile case file
or any portions thereof shall prevail. Unless a person is listed in
subparagraphs (A) to (O), inclusive, of paragraph (1) and is entitled
to access under the other state law or federal law or regulation
without a court order, all those seeking access, pursuant to other
authorization, to portions of, or information relating to the contents
of, juvenile case files protected under another state law or federal
law or regulation, shall petition the juvenile court. The juvenile
court may only release the portion of, or information relating to
the contents of, juvenile case files protected by another state law
or federal law or regulation if disclosure is not detrimental to the
safety, protection, or physical or emotional well-being of a child
who is directly or indirectly connected to the juvenile case that is
the subject of the petition. This paragraph shall not be construed
to limit the ability of the juvenile court to carry out its duties in
conducting juvenile court proceedings.

(B) Prior to the release of the juvenile case file or any portion
thereof, the court shall afford due process, including a notice of
and an opportunity to file an objection to the release of the record
or report to all interested parties.

(4) 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. Further, 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.

(5) Individuals listed in subparagraphs (A), (B), (C), (D), (E),
(F), (H), and (I) of paragraph (1) may also receive copies of the
case file. In these circumstances, the requirements of paragraph
(4) shall continue to apply to the information received.

(b) (1) While the Legislature reaffirms its belief that juvenile
court records, in general, should be confidential, it is the intent of
the Legislature in enacting this subdivision to provide for a limited
exception to juvenile court record confidentiality to promote more
effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation
of juvenile criminal offenders as well as to lessen the potential for
drug use, violence, other forms of delinquency, and child abuse.

(2) (A) Notwithstanding subdivision (a), written notice that a
minor enrolled in a public school, kindergarten to grade 12,
inclusive, has been found by a court of competent jurisdiction to
have committed any felony or any misdemeanor involving curfew,
gambling, alcohol, drugs, tobacco products, carrying of weapons,
a sex offense listed in Section 290 of the Penal Code, assault or
battery, larceny, vandalism, or graffiti shall be provided by the
court, within seven days, to the superintendent of the school district
of attendance. Written notice shall include only the offense found
to have been committed by the minor and the disposition of the
minor’s case. This notice shall be expeditiously transmitted by the
district superintendent to the principal at the school of attendance.
The principal shall expeditiously disseminate the information to
those counselors directly supervising or reporting on the behavior
or progress of the minor. In addition, the principal shall disseminate
the information to any teacher or administrator directly supervising
or reporting on the behavior or progress of the minor whom the
principal believes needs the information to work with the pupil in
an appropriate fashion, to avoid being needlessly vulnerable or to
protect other persons from needless vulnerability.

(B) Any information received by a teacher, counselor, or
administrator under this subdivision shall be received in confidence
for the limited purpose of rehabilitating the minor and protecting
students and staff, and shall not be further disseminated by the
teacher, counselor, or administrator, except insofar as
communication with the juvenile, his or her parents or guardians,
law enforcement personnel, and the juvenile’s probation officer
is necessary to effectuate the juvenile’s rehabilitation or to protect
students and staff.

An

(C) An intentional violation of the confidentiality provisions of
this paragraph is a misdemeanor punishable by a fine not to exceed
five hundred dollars ($500).

(3) If a minor is removed from public school as a result of the
court’s finding described in subdivision (b), the superintendent
shall maintain the information in a confidential file and shall defer
transmittal of the information received from the court until the
minor is returned to public school. If the minor is returned to a
school district other than the one from which the minor came, the
parole or probation officer having jurisdiction over the minor shall
so notify the superintendent of the last district of attendance, who
shall transmit the notice received from the court to the
superintendent of the new district of attendance.

(c) Each probation report filed with the court concerning a minor
whose record is subject to dissemination pursuant to subdivision
(b) shall include on the face sheet the school at which the minor
is currently enrolled. The county superintendent shall provide the
court with a listing of all of the schools within each school district,
within the county, along with the name and mailing address of
each district superintendent.

(d) (1) Each notice sent by the court pursuant to subdivision
(b) shall be stamped with the instruction: “Unlawful Dissemination
Of This Information Is A Misdemeanor.” Any information received
from the court shall be kept in a separate confidential file at the
school of attendance and shall be transferred to the minor’s
subsequent schools of attendance and maintained until the minor
graduates from high school, is released from juvenile court
jurisdiction, or reaches the age of 18 years, whichever occurs first.
After that time the confidential record shall be destroyed. At any
time after the date by which a record required to be destroyed by
this section should have been destroyed, the minor or his or her
parent or guardian shall have the right to make a written request
to the principal of the school that the minor’s school records be
reviewed to ensure that the record has been destroyed. Upon
completion of any requested review and no later than 30 days after
the request for the review was received, the principal or his or her
designee shall respond in writing to the written request and either
shall confirm that the record has been destroyed or, if the record
has not been destroyed, shall explain why destruction has not yet
occurred.

(2) Except as provided in paragraph (2) of subdivision (b), no
liability shall attach to any person who transmits or fails to transmit
any notice or information required under subdivision (b).

(e) For purposes of this section, a “juvenile case file” means 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.

(f) The persons described in subparagraphs (A), (E), (F), (H),
(K), (L), (M), and (N) of paragraph (1) of subdivision (a) include
persons serving in a similar capacity for an Indian tribe, reservation,
or tribal court when the case file involves a child who is a member
of, or who is eligible for membership in, that tribe.

end delete