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Introduced Version House Bill 2089 History

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hb2089 intr
H. B. 2089


(By Delegate Ellem)

[Introduced February 9, 2005; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact §49-5-17 of the code of West Virginia, 1931, as amended, relating to making records in criminal juvenile proceedings involving crimes of violence open to the public.

Be it enacted by the Legislature of West Virginia:

That §49-5-17 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 5. JUVENILE PROCEEDINGS.

§49-5-17. Confidentiality of juvenile records.
(a) Records of a juvenile proceeding conducted under this chapter are not public records and shall not be disclosed to anyone unless disclosure is otherwise authorized by this section.
(b) Notwithstanding the provisions of subsection (a) of this section, a copy of a juvenile's records shall automatically be disclosed to certain school officials, subject to the following terms and conditions:
(1) Only the records of certain juveniles shall be disclosed. These include and are limited to cases in which:
(A) The juvenile has been charged with an offense which:
(i) Involves violence against another person;
(ii) Involves possession of a dangerous or deadly weapon; or
(iii) Involves possession or delivery of a controlled substance as that term is defined in section one hundred one, article one, chapter sixty-a of this code; and
(B) The juvenile's case has proceeded to a point where one or more of the following has occurred:
(i) A judge, magistrate or referee has determined that there is probable cause to believe that the juvenile committed the offense as charged;
(ii) A judge, magistrate or referee has placed the juvenile on probation for the offense;
(iii) A judge, magistrate or referee has placed the juvenile into an improvement period in accordance with section nine of this article; or
(iv) Some other type of disposition has been made of the case other than dismissal.
(2) The circuit court for each judicial circuit in West Virginia shall designate one person to supervise the disclosure of juvenile records to certain school officials.
(2) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant to the provisions of section ten of this article, the juvenile records shall be open to public inspection.
(3) If the juvenile attends a West Virginia public school, the person designated by the circuit court shall automatically disclose all records of the juvenile's case to the county superintendent of schools in the county in which the juvenile attends school and to the principal of the school which the juvenile attends, subject to the following:
(A) At a minimum, the records shall disclose the following information:
(i) Copies of the arrest report;
(ii) Copies of all investigations;
(iii) Copies of any psychological test results and any mental health records;
(iv) Copies of any evaluation reports for probation or facility placement; and
(v) Any other material that would alert the school to potential danger that the juvenile may pose to himself, herself or others;
(B) The disclosure of the juvenile's psychological test results and any mental health records shall only be made in accordance with subdivision (14) of this subsection;
(C) If the disclosure of any record to be automatically disclosed under this section is restricted in its disclosure by the Health Insurance Portability and Accountability Act of 1996 and any amendments and regulations under the Act, the person designated by the circuit court shall provide the superintendent and principal any notice of the existence of the record that is permissible under the Act and, if applicable, any action that is required to obtain the record; and
(D) When multiple disclosures are required by this subsection, the person designated by the circuit court is required to disclose only material in the juvenile record that had not previously been disclosed to the county superintendent and the principal of the school which the juvenile attends.
(4) If the juvenile attends a private school in West Virginia, the person designated by the circuit court shall determine the identity of the highest ranking person at that school, and shall automatically disclose all records of a juvenile's case to that person.
(5) If the juvenile does not attend school at the time the juvenile's case is pending, the person designated by the circuit court shall not transmit the juvenile's records to any school. However, the person designated by the circuit court shall transmit the juvenile's records to any school in West Virginia which the juvenile subsequently attends.
(6) The person designated by the circuit court shall not automatically transmit juvenile records to a school which is not located in West Virginia. Instead, the person designated by the circuit court shall contact the out-of-state school, inform it that juvenile records exist, and make an inquiry regarding whether the laws of that state permit the disclosure of juvenile records. If so, the person designated by the circuit court shall consult with the circuit judge who presided over the case to determine whether the juvenile records should be disclosed to the out-of-state school. The circuit judge shall have discretion in determining whether to disclose the juvenile records, and shall consider whether the other state's law regarding disclosure provides for sufficient confidentiality of juvenile records, using this section as a guide. If the circuit judge orders the juvenile records to be disclosed, they shall be disclosed in accordance with the provisions of subdivision (7) of this subsection.
(7) The person designated by the circuit court shall transmit the juvenile's records to the appropriate school official under cover of a letter emphasizing the confidentiality of such records and directing the official to consult this section of the code. A copy of this section of the code shall be transmitted with the juvenile's records and cover letter.
(8) Juvenile records must be treated as absolutely confidential by the school official to whom they are transmitted, and nothing contained within the juvenile's records shall be noted on the juvenile's permanent educational record. The juvenile records are to be maintained in a secure location and are not to be copied under any circumstances. However, the principal of a school to whom the records are transmitted shall have the duty to disclose the contents of those records to any teacher who teaches a class in which the subject juvenile is enrolled and to the regular driver of a school bus in which the subject juvenile is regularly transported to or from school, except that the disclosure of the juvenile's psychological test results and any mental health records shall only be made in accordance with subdivision (14) of this subsection. Furthermore, any school official to whom the juvenile's records are transmitted may disclose the contents of such records to any adult within the school system who, in the discretion of the school official, has the need to be aware of the contents of those records.
(9) If for any reason a juvenile ceases to attend a school which possesses that juvenile's records, the appropriate official at that school shall seal the records and return them to the circuit court which sent them to that school. If the juvenile has changed schools for any reason, the former school shall inform the circuit court of the name and location of the new school which the juvenile attends or will be attending. If the new school is located within West Virginia, the person designated by the circuit court shall forward the juvenile's records to the juvenile's new school in the same manner as provided in subdivision (7) of this subsection. If the new school is not located within West Virginia, the person designated by the circuit court shall handle the juvenile records in accordance with subdivision (6) of this subsection.
If the juvenile has been found not guilty of an offense for which records were previously forwarded to the juvenile's school on the basis of a finding of probable cause, the circuit court shall not forward those records to the juvenile's new school. However, this shall not affect records related to other prior or future offenses. If the juvenile has graduated or quit school, or will otherwise not be attending another school, the circuit court shall retain the juvenile's records and handle them as otherwise provided in this article.
(10) Under no circumstances shall one school transmit a juvenile's records to another school.
(11) Under no circumstances shall juvenile records be automatically transmitted to a college, university or other post-secondary school.
(12) No one shall suffer any penalty, civil or criminal, for accidentally or negligently attributing certain juvenile records to the wrong person. However, such person shall have the affirmative duty to promptly correct any mistake that he or she has made in disclosing juvenile records when the mistake is brought to his or her attention. A person who intentionally attributes false information to a certain person shall be subjected to both criminal and civil penalties, in accordance with subsection (e) of this section.
(13) If a judge, magistrate or referee has determined that there is probable cause to believe that a juvenile has committed an offense but there has been no final adjudication of the charge, the records which are transmitted by the circuit court shall be accompanied by a notice which clearly states in bold print that there has been no determination of delinquency and that our legal system requires a presumption of innocence.
(14) The county superintendent shall designate the school psychologist or psychologists to receive the juvenile's psychological test results and any mental health records. The psychologist designated shall review the juvenile's psychological test results and any mental health records, and, in the psychologist's professional judgment, may disclose to the principal of the school that the juvenile attends and other school employees who would have a need to know the psychological test results, mental health records and any behavior that may trigger violence or other disruptive behavior by the juvenile. Other school employees includes, but is not limited to, any teacher who teaches a class in which the subject juvenile is enrolled and the regular driver of a school bus in which the subject juvenile is regularly transported to or from school.
(c) Notwithstanding the provisions of subsection (a) of this section, juvenile records may be disclosed, subject to the following terms and conditions:
(1) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant to the provisions of subsection (c) or (d), section ten of this article, the juvenile records shall be open to public inspection.
(2) If a juvenile case is transferred to the criminal jurisdiction of the circuit court pursuant to the provisions of subsection (e), (f) or (g), section ten of this article, the juvenile records shall be open to public inspection only if the juvenile fails to file a timely appeal of the transfer order, or the Supreme Court of Appeals refuses to hear or denies an appeal which has been timely filed.
(3) If a juvenile is fourteen years of age or older and a court has determined there is a probable cause to believe the juvenile committed an offense set forth in subsection (g), section ten of this article, but the case is not transferred to criminal jurisdiction, the juvenile records shall be open to public inspection pending trial only if the juvenile is released on bond and no longer detained or adjudicated delinquent of the offense.
(4) If a juvenile is younger than fourteen years of age and a court has determined there is probable cause to believe that the juvenile committed the crime of murder under section one, two or three, article two, chapter sixty-one of this code, or the crime of sexual assault in the first degree under section three, article eight-b of said chapter, but the case is not transferred to criminal jurisdiction, the juvenile records shall be open to public inspection pending trial only if the juvenile is released on bond and no longer detained or adjudicated delinquent of the offense.
(5) Upon a written petition and pursuant to a written order, the circuit court may permit disclosure of juvenile records to:
(A) A court which has juvenile jurisdiction and has the juvenile before it in a juvenile proceeding;
(B) A court exercising criminal jurisdiction over the juvenile which requests such records for the purpose of a presentence report or disposition proceeding;
(C) The juvenile, the juvenile's parents or legal guardian, or the juvenile's counsel;
(D) The officials of a public institution to which the juvenile is committed if they require such records for transfer, parole or discharge; or
(E) A person who is conducting research. However, juvenile records may be disclosed for research purposes only upon the condition that information which would identify the subject juvenile or the juvenile's family shall not be disclosed.
(d) (c) Any records open to public inspection pursuant to the provisions of this section are subject to the same requirements governing the disclosure of adult criminal records.
(e) (d) Any person who willfully violates this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, or confined in the county or regional jail for not more than six months, or both fined and confined, and shall be liable for damages in the amount of three hundred dollars or actual damages, whichever is greater.



NOTE: The purpose of this bill is to make records in criminal juvenile proceedings involving crimes of violence open to the public.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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