Senate Bill No. 557
(By Senators Wooton, Craigo, Jackson,
Mitchell, Prezioso, Walker, McKenzie, Unger, Snyder, Ross and
Ball)
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[Introduced February 21, 2000; referred to the
Committee on the Judiciary.]
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A BILL to amend and reenact section one, article seven, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to releasing or
disclosing state-held records of a juvenile by a court of
record after review.
Be it enacted by the Legislature of West Virginia:
That section one, article seven, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 7. GENERAL PROVISIONS.
§49-7-1. Confidentiality of records.
(a) Except as otherwise provided in this chapter or by order of the court, all records and information concerning a child or
juvenile which are maintained by the division of juvenile
services, the department of health and human resources, a child
agency or facility, court or law-enforcement agency shall be kept
confidential and shall not be released or disclosed to anyone,
including any federal or state agency.
(b) Notwithstanding the provisions of subsection (a) of this
section or any other provision of this code to the contrary,
records concerning a child or juvenile, except adoption records,
juvenile court records and records disclosing the identity of a
person making a complaint of child abuse or neglect shall be made
available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated;
or
(C) The attorney of the child or parent;
(3) With the written consent of the child or of someone
authorized to act on the child's behalf; or
(4) Pursuant to a subpoena or an order of a court of record: however, a subpoena for such records may be quashed by a court
for good cause Provided, That the court shall review such record
or records for relevancy and materiality to the issues in the
proceeding, and may issue an order to limit the examination and
use of the records or any part thereof.
(c) In addition to those persons or entities to whom
information may be disclosed under subsection (b) of this
section, information related to child abuse or neglect
proceedings, except information relating to the identity of the
person reporting or making a complaint of child abuse or neglect,
shall be made available, upon request, to:
(1) Federal, state or local government entities, or any
agent of such entities, including law-enforcement agencies and
prosecuting attorneys, having a need for such information in
order to carry out its responsibilities under law to protect
children from abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court or family law master, upon
a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court or
family law master.
(d) In the event of a child fatality or near fatality due to
child abuse and neglect, information relating to such fatality or
near fatality shall be made public by the department of health
and human resources and to the entities described in subsection
(c) of this section, all under the circumstances described in
that subsection: Provided, That information released by the
department of health and human resources pursuant to this
subsection shall not include the identity of a person reporting
or making a complaint of child abuse or neglect. For purposes of
this subsection, "near fatality" means any medical condition of
the child which is certified by the attending physician to be
life-threatening.
(e) Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files
concerning a child or juvenile shall be kept separate from the
records and files of adults and not included within the court
files. Law-enforcement records and files concerning a child or
juvenile shall only be open to inspection pursuant to the
provisions of sections seventeen and eighteen, article five of this chapter.
(f) Any person who willfully violates the provisions of 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 be
both fined and confined. A person convicted of violating the
provisions of this section shall also be liable for damages in
the amount of three hundred dollars or actual damages, whichever
is greater.
(g) Notwithstanding the provisions of this section, or any
other provision of this code to the contrary, the name and
identity of any juvenile adjudicated or convicted of a violent or
felonious crime shall be made available to the public.
NOTE: The purpose of this bill is to permit the release or
disclosure of child or juvenile records by a court of record
after the court's examination of the records and a determination
by the court as to whether the records are material to the
proceeding and, if so, to what extent the records should be
disclosed. This bill is recommended for passage in the 2000
Regular Session of the Legislature by the Legislative Task Force
on Juvenile Foster Care, Detention and Placement.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.