Amendment SSA1-SB173

LRBs0296/1

GMM:jld:rs

2011 - 2012 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2011 SENATE BILL 173

January 19, 2012 - Offered by Senator Darling.

SB173-SSA1,1,8 An Act to renumber and amend 48.396 (3) (c) 1.; to amend 48.396 (1), 48.396 (2) (a), 48.396 (3) (b), 48.396 (3) (c) 2., 48.396 (3) (c) 3., 48.396 (3) (d), 48.47 (7g), 48.78 (2) (a), 48.78 (2) (h), 938.396 (1) (a), 938.396 (2), 938.396 (2g) (c), 938.396 (2g) (d), 938.78 (2) (a) and 938.78 (2) (h); and to create 48.396 (2) (e), 48.396 (3) (c) 1g., 48.396 (3) (c) 1m. and 938.396 (2m) of the statutes; relating to: the disclosure of electronic juvenile court records to other juvenile courts, municipal courts, courts of criminal jurisdiction, district attorneys and other prosecutors, and law enforcement agencies and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, the director of state courts has established an automated information system, known as the Consolidated Court Automation Programs (CCAP), that contains information about cases filed in the circuit courts in this state, including cases filed in the courts assigned to exercise jurisdiction under the Juvenile Justice Code (juvenile courts).

Records of the juvenile court, however, are confidential and may not be opened to inspection, nor may their contents be disclosed, except under certain statutory exceptions or by an order of the juvenile court. Currently, those exceptions include an exception that requires a juvenile court to disclose its records relating to a proceeding under the Children's Code (generally, a child in need of protection services or a termination of parental rights proceeding) or the Juvenile Justice Code (generally, a delinquency, civil law or ordinance violation, or a juvenile in need of protection or services proceeding) on the request of any other juvenile court, a municipal court, or a district attorney, corporation counsel, or city, village, or town attorney (prosecutor) to review juvenile court records for the purpose of any proceeding in that court. In addition, current law requires the juvenile court to disclose its records relating to a proceeding under the Juvenile Justice Code on the request of a court of criminal jurisdiction or a district attorney to review those records for the purpose of setting bail or impeaching a witness or on the request of a law enforcement agency to review those records for the purpose of investigating alleged criminal gang activity.

This substitute amendment requires the juvenile court to transfer information relating to proceedings under the Children's Code or the Juvenile Justice Code that is contained in the electronic records of the juvenile court to any other juvenile court, a municipal court, a court of criminal jurisdiction, or a prosecutor of a case in any of those courts. The substitute amendment also permits the juvenile court to transfer information relating to proceedings under the Juvenile Justice Code that is contained in the electronic records of the juvenile court to a law enforcement agency. A person to whom information is transferred under the substitute amendment must keep that information confidential and may use or allow access to that information only as follows:

1. In the case of a juvenile court, municipal court, or court of criminal jurisdiction or an individual who is allowed access to that information by such a court, only for the purpose of conducting or preparing for a proceeding in that court.

2. In the case of a prosecutor or an individual who is allowed access to that information by a prosecutor, only for the purpose of performing the prosecutor's official duties relating to a proceeding in a juvenile court, municipal court, or court of criminal jurisdiction.

3. In the case of a law enforcement agency or an individual who is allowed access to that information by a law enforcement agency, only for the purpose of investigating any alleged criminal activity or any activity that may result in a court exercising jurisdiction under the Children's Code or the Juvenile Justice Code.

The substitute amendment permits the director of state courts to use CCAP to facilitate the transfer of electronic records under the substitute amendment, and provides for a forfeiture of not more than $5,000 for any person who intentionally discloses information in violation of the substitute amendment.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB173-SSA1, s. 1 Section 1. 48.396 (1) of the statutes is amended to read:

SB173-SSA1,4,2 48.396 (1) Law enforcement officers' records of children shall be kept separate from records of adults. Law enforcement officers' records of the adult expectant mothers of unborn children shall be kept separate from records of other adults. Law enforcement officers' records of children and the adult expectant mothers of unborn children shall not be open to inspection or their contents disclosed except under sub. (1b), (1d), (5), or (6) or s. 48.293 or 938.396 (2m) (c) 1p. or by order of the court. This subsection does not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child or adult expectant mother involved, to the confidential exchange of information between the police and officials of the public or private school attended by the child or other law enforcement or social welfare agencies, or to children 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under s. 118.125, and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under s. 118.125. This subsection does not apply to the confidential exchange of information between the police and officials of the tribal school attended by the child if the police determine that enforceable protections are provided by a tribal school policy or tribal law that requires tribal school officials to keep the information confidential in a manner at least as stringent as is required of a public school official under s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and s. 938.396 (1) (a). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under ss. 48.78 and 938.78.

SB173-SSA1, s. 2 Section 2. 48.396 (2) (a) of the statutes is amended to read:

SB173-SSA1,4,10 48.396 (2) (a) Records of the court assigned to exercise jurisdiction under this chapter and ch. 938 and of courts exercising jurisdiction under s. 48.16 shall be entered in books or deposited in files kept for that purpose only. They Those records shall not be open to inspection or their contents disclosed except by order of the court assigned to exercise jurisdiction under this chapter and ch. 938 or as required or permitted under this subsection, sub. (3) (b) or (c) 1. 1g., 1m., or 1r. or (6), or s. 48.375 (7) (e).

SB173-SSA1, s. 3 Section 3. 48.396 (2) (e) of the statutes is created to read:

SB173-SSA1,4,18 48.396 (2) (e) Upon request of a court of criminal jurisdiction to review court records for the purpose of conducting or preparing for a proceeding in that court or upon request of a district attorney to review court records for the purpose of performing his or her official duties in a proceeding in a court of criminal jurisdiction, the court assigned to exercise jurisdiction under this chapter and ch. 938 shall open for inspection by authorized representatives of the requester the records of the court relating to any child who has been the subject of a proceeding under this chapter.

SB173-SSA1, s. 4 Section 4. 48.396 (3) (b) of the statutes is amended to read:

SB173-SSA1,5,5 48.396 (3) (b) The court may shall transfer to the department information relating to proceedings under this chapter that is contained in the electronic records of the court to any other court assigned to exercise jurisdiction under this chapter and ch. 938, a municipal court exercising jurisdiction under s. 938.17 (2), a court of criminal jurisdiction, a person representing the interests of the public under s. 48.09 or 938.09, a district attorney prosecuting a criminal case, or the department, regardless of whether that other court, municipal court, or person or the department is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created, and the. The director of state courts may use the circuit court automated information systems established under s. 758.19 (4) to facilitate the transfer of electronic records under this paragraph.

SB173-SSA1,5,13 (bm) The department may transfer to the court information contained in the electronic records of the department that are maintained in the statewide automated child welfare information system under s. 48.47 (7g). The director of state courts may use the circuit court automated information systems established under s. 758.19 (4) to facilitate the transfer of those electronic records between from the department to the court and the department. The director of state courts and the department shall specify what types of information may be transferred from the department to the court under this paragraph and from the court to the department under par. (b).

SB173-SSA1, s. 5 Section 5. 48.396 (3) (c) 1. of the statutes is renumbered 48.396 (3) (c) 1r. and amended to read:

SB173-SSA1,5,22 48.396 (3) (c) 1r. The department may allow access to shall keep any information transferred to the department under par. (b) confidential and may use or allow access to that information only for the purpose of providing services under s. 48.06, 48.067, 48.069, 938.06, 938,067 938.067, or 938.069. The department may allow that access regardless of whether the person who is allowed that access is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created.

SB173-SSA1, s. 6 Section 6. 48.396 (3) (c) 1g. of the statutes is created to read:

SB173-SSA1,6,6 48.396 (3) (c) 1g. A court assigned to exercise jurisdiction under this chapter and ch. 938, a municipal court exercising jurisdiction under s. 938.17 (2), or a court of criminal jurisdiction shall keep any information transferred to that court under par. (b) confidential and may use or allow access to that information only for the purpose of conducting or preparing for a proceeding in that court. That court may allow that access regardless of whether the person who is allowed that access is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created.

SB173-SSA1, s. 7 Section 7. 48.396 (3) (c) 1m. of the statutes is created to read:

SB173-SSA1,6,16 48.396 (3) (c) 1m. A person representing the interests of the public under s. 48.09 or 938.09 or a district attorney prosecuting a criminal case shall keep any information transferred to that person under par. (b) confidential and may use or allow access to that information only for the purpose of performing his or her official duties relating to a proceeding in a court assigned to exercise jurisdiction under this chapter and ch. 938 or a municipal court. That person may allow that access regardless of whether the person who is allowed that access is a party to or is otherwise involved in the proceedings in which the electronic records containing that information were created.

SB173-SSA1, s. 8 Section 8. 48.396 (3) (c) 2. of the statutes is amended to read:

SB173-SSA1,6,20 48.396 (3) (c) 2. The court or the director of state courts may allow access to any information transferred to the court under par. (b) (bm) only to the extent that the information may be disclosed under this chapter or ch. 938.

SB173-SSA1, s. 9 Section 9. 48.396 (3) (c) 3. of the statutes is amended to read:

SB173-SSA1,7,2 48.396 (3) (c) 3. The department, a court, the director of state courts, and any An individual who is allowed under subd. 1g., 1m., 1r., or 2. to have access to any information transferred under par. (b) or (bm) shall keep the information confidential and may use and further disclose the information only for the purpose purposes described in subd. 1. 1g., 1m., or 1r. or to the extent permitted under subd. 2.

SB173-SSA1, s. 10 Section 10. 48.396 (3) (d) of the statutes is amended to read:

SB173-SSA1,7,5 48.396 (3) (d) Any person who intentionally uses or discloses information in violation of par. (c) may be required to forfeit not more than $5,000.

SB173-SSA1, s. 11 Section 11. 48.47 (7g) of the statutes is amended to read:

SB173-SSA1,7,24 48.47 (7g) Statewide automated child welfare information system. Establish a statewide automated child welfare information system. Notwithstanding ss. 46.2895 (9), 48.396 (1) and (2) (a), 48.78 (2) (a), 48.981 (7), 49.45 (4), 49.83, 51.30, 51.45 (14) (a), 55.22 (3), 146.82, 252.11 (7), 252.15, 253.07 (3) (c), 938.396 (1) (a) and (2), and 938.78 (2) (a), the department may enter the content of any record kept or information received by the department into the statewide automated child welfare information system, and a county department under s. 46.215, 46.22, or 46.23, the department, or any other organization that has entered into an information sharing and access agreement with the department or any of those county departments and that has been approved for access to the statewide automated child welfare information system by the department may have access to information that is maintained in that system, if necessary to enable the county department, department, or organization to perform its duties under this chapter, ch. 46, 51, 55, or 938, or 42 USC 670 to 679b or to coordinate the delivery of services under this chapter, ch. 46, 51, 55, or 938, or 42 USC 670 to 679b. The department may also transfer information that is maintained in the system to a court under s. 48.396 (3) (b) (bm), and the court and the director of state courts may allow access to that information as provided in s. 48.396 (3) (c) 2.

SB173-SSA1, s. 12 Section 12. 48.78 (2) (a) of the statutes is amended to read:

SB173-SSA1,8,5 48.78 (2) (a) No agency may make available for inspection or disclose the contents of any record kept or information received about an individual who is or was in its care or legal custody, except as provided under s. 48.371, 48.38 (5) (b) or (d) or (5m) (d), 48.396 (3) (b) (bm) or (c) 1. 1r., 48.432, 48.433, 48.48 (17) (bm), 48.57 (2m), 48.93, 48.981 (7), 938.396 (2m) (c) 1r., 938.51, or 938.78 or by order of the court.

SB173-SSA1, s. 13 Section 13. 48.78 (2) (h) of the statutes is amended to read:

SB173-SSA1,8,15 48.78 (2) (h) Paragraph (a) does not prohibit the department, a county department, or a licensed child welfare agency from entering the content of any record kept or information received by the department, county department, or licensed child welfare agency into the statewide automated child welfare information system established under s. 48.47 (7g) or the department from transferring any information maintained in that system to the court under s. 48.396 (3) (b) (bm). If the department transfers that information to the court, the court and the director of state courts may allow access to that information as provided in s. 48.396 (3) (c) 2.

SB173-SSA1, s. 14 Section 14. 938.396 (1) (a) of the statutes is amended to read:

SB173-SSA1,8,20 938.396 (1) (a) Confidentiality. Law enforcement agency records of juveniles shall be kept separate from records of adults. Law enforcement agency records of juveniles may not be open to inspection or their contents disclosed except under par. (b) or (c), sub. (1j), (2m) (c) 1p., or (10), or s. 938.293 or by order of the court.

SB173-SSA1, s. 15 Section 15. 938.396 (2) of the statutes is amended to read:

SB173-SSA1,9,3 938.396 (2) Court records; confidentiality. Records of the court assigned to exercise jurisdiction under this chapter and ch. 48 and of municipal courts exercising jurisdiction under s. 938.17 (2) shall be entered in books or deposited in files kept for that purpose only. Those records shall not be open to inspection or their contents disclosed except by order of the court assigned to exercise jurisdiction under this chapter and ch. 48 or as required or permitted under sub. (2g), (2m) (b) or (c), or (10) or s. 48.396 (3) (b) or (c) 1.

SB173-SSA1, s. 16 Section 16. 938.396 (2g) (c) of the statutes is amended to read:

SB173-SSA1,9,23 938.396 (2g) (c) Law enforcement agencies. Upon request of a law enforcement agency to review court records for the purpose of investigating a crime that might constitute criminal gang activity, as defined in s. 941.38 (1) (b), the court shall open for inspection by authorized representatives of the law enforcement agency the records of the court relating to any juvenile who has been found to have committed a delinquent act at the request of or for the benefit of a criminal gang, as defined in s. 939.22 (9), that would have been a felony under chs. 939 to 948 or 961 if committed by an adult alleged criminal activity or activity that may result in a court exercising jurisdiction under this chapter or ch. 48, the court assigned to exercise jurisdiction under this chapter and ch. 48 shall open for inspection by authorized representatives of the requester the records of the court relating to any juvenile who has been the subject of a proceeding under this chapter. This paragraph does not authorize disclosure of any information relating to the physical or mental health of an individual, including information contained in a patient health care record, as defined in s. 146.81 (4), a treatment record, as defined in s. 51.30 (1) (b), a report resulting from an examination or assessment under s. 938.295, a court report under s. 938.33, or a permanency plan under s. 938.38, except with the informed consent of a person authorized to consent to that disclosure, by order of the court, or as otherwise permitted by law.

SB173-SSA1, s. 17 Section 17. 938.396 (2g) (d) of the statutes is amended to read: