Bill Summary – FastDemocracy

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68th Legislature 2023                                                                                              SB 116.1
                                                SENATE BILL NO. 116
                                              INTRODUCED BY D. LENZ
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  A BILL FOR AN ACT ENTITLED: “AN ACT REVISING LAWS REGARDING THE DISCLOSURE OF CHILD
  ABUSE AND NEGLECT RECORDS; REQUIRING THAT CASE RECORDS BE DISCLOSED WITHIN 10 DAYS
  OF RECEIVING A REQUEST UNLESS A COURT DETERMINES THAT DISCLOSURE IS DETRIMENTAL TO
  A CHILD OR OTHER PERSON WHO IS THE SUBJECT OF THE RECORDS; PROVIDING A PENALTY FOR
  FAILING TO DISCLOSE RECORDS WITHIN 10 DAYS OF A REQUEST; REVISING PROCEDURES FOR
  DISCLOSING CASE RECORDS AND RECORDS OF THE OFFICE OF THE CHILD AND FAMILY
  OMBUDSMAN TO A MEMBER OF CONGRESS OR THE MONTANA LEGISLATURE; PROVIDING
  EXCEPTIONS TO CONFIDENTIALITY REQUIREMENTS FOR RECORDS DISCLOSED TO A MEMBER OF
  CONGRESS OR THE MONTANA LEGISLATURE; AMENDING SECTIONS 41-3-205 AND 41-3-1214, MCA;
  AND PROVIDING AN IMMEDIATE EFFECTIVE DATE.”
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  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
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           Section 1. Section 41-3-205, MCA, is amended to read:
           "41-3-205.   Confidentiality -- disclosure exceptions. (1) The case records of the department and its
  local affiliate, the local office of public assistance, the county attorney, and the court concerning actions taken
  under this chapter and all records concerning reports of child abuse and neglect must be kept confidential
  except as provided by this section. Except as provided in subsections (9) and (10), a person who purposely or
  knowingly permits or encourages the unauthorized dissemination of the contents of case records is guilty of a
  misdemeanor.
           (2)     Records may be disclosed to a court for in camera inspection if relevant to an issue before it.
  The court may permit public disclosure if it finds disclosure to be necessary for the fair resolution of an issue
  before it.
           (3)     (a) Records, including case notes, correspondence, evaluations, videotapes, and interviews,
  unless otherwise protected by this section or unless disclosure of the records is determined by a court to be
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68th Legislature 2023                                                                                               SB 116.1
  detrimental to the child or harmful to another person who is a subject of information contained in the records,
  may must be disclosed to the following persons or entities in this state and any other state or country within 10
  days of receiving the request for records:
          (a)(i)     a department, agency, or organization, including a federal agency, military enclave, or Indian
  tribal organization, that is legally authorized to receive, inspect, or investigate reports of child abuse or neglect
  and that otherwise meets the disclosure criteria contained in this section;
          (b)(ii)    a licensed youth care facility or a licensed child-placing agency that is providing services to the
  family or child who is the subject of a report in the records or to a person authorized by the department to
  receive relevant information for the purpose of determining the best interests of a child with respect to an
  adoptive placement;
          (c)(iii)   a health or mental health professional who is treating the family or child who is the subject of a
  report in the records;
          (d)(iv) a parent, grandparent, aunt, uncle, brother, sister, guardian, mandatory reporter provided for in
  41-3-201(2) and (5), or person designated by a parent or guardian of the child who is the subject of a report in
  the records or other person responsible for the child's welfare, without disclosure of the identity of any person
  who reported or provided information on the alleged child abuse or neglect incident contained in the records;
          (e)(v)     a child named in the records who was allegedly abused or neglected or the child's legal
  guardian or legal representative, including the child's guardian ad litem or attorney or a special advocate
  appointed by the court to represent a child in a pending case;
          (f)(vi)    the state protection and advocacy program as authorized by 42 U.S.C. 15043(a)(2);
          (g)(vii) approved foster and adoptive parents who are or may be providing care for a child;
          (h)(viii) a person about whom a report has been made and that person's attorney, with respect to the
  relevant records pertaining to that person only and without disclosing the identity of the reporter or any other
  person whose safety may be endangered;
          (i)(ix)    an agency, including a probation or parole agency, that is legally responsible for the
  supervision of an alleged perpetrator of child abuse or neglect;
          (j)(x)     a person, agency, or organization that is engaged in a bona fide research or evaluation project
  and that is authorized by the department to conduct the research or evaluation;
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68th Legislature 2023                                                                                                SB 116.1
          (k)(xi)    the members of an interdisciplinary child protective team authorized under 41-3-108 or of a
  family engagement meeting for the purposes of assessing the needs of the child and family, formulating a
  treatment plan, and monitoring the plan;
          (l)(xii)   the coroner or medical examiner when determining the cause of death of a child;
          (m)(xiii) a child fatality review team recognized by the department;
          (n)(xiv) a department or agency investigating an applicant for a license or registration that is required to
  operate a youth care facility, day-care facility, or child-placing agency;
          (o)(xv) a person or entity who is carrying out background, employment-related, or volunteer-related
  screening of current or prospective employees or volunteers who have or may have unsupervised contact with
  children through employment or volunteer activities. A request for information under this subsection (3)(o)
  (a)(xv) must be made in writing. Disclosure under this subsection (3)(o) (a)(xv) is limited to information that
  indicates a risk to children posed by the person about whom the information is sought, as determined by the
  department.
          (p)(xvi) the news media, if disclosure is limited to confirmation of factual information regarding how the
  case was handled and if disclosure does not violate the privacy rights of the child or the child's parent or
  guardian, as determined by the department;
          (q)(xvii) an employee of the department or other state agency if disclosure of the records is necessary
  for administration of programs designed to benefit the child;
          (r)(xviii) an agency of an Indian tribe, a qualified expert witness, or the relatives of an Indian child if
  disclosure of the records is necessary to meet requirements of the federal Indian Child Welfare Act;
          (s)(xix) a juvenile probation officer who is working in an official capacity with the child who is the
  subject of a report in the records;
          (t)(xx) an attorney who is hired by or represents the department if disclosure is necessary for the
  investigation, defense, or prosecution of a case involving child abuse or neglect;
          (u)(xxi) a foster care review committee established under 41-3-115 or, when applicable, a citizen
  review board established under Title 41, chapter 3, part 10;
          (v)(xxii) a school employee participating in an interview of a child by a child protection specialist, county
  attorney, or peace officer, as provided in 41-3-202;
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68th Legislature 2023                                                                                                 SB 116.1
          (w)(xxiii)          a member of a county or regional interdisciplinary child information and school safety
  team formed under the provisions of 52-2-211;
          (x)(xxiv)           members of a local interagency staffing group provided for in 52-2-203;
          (y)(xxv)            a member of a youth placement committee formed under the provisions of 41-5-121; or
          (z)(xxvi)           a principal of a school or other employee of the school district authorized by the
  trustees of the district to receive the information with respect to a student of the district who is a client of the
  department.
          (b)         A person who purposely or negligently fails to provide records requested within the timeframe
  required under this subsection (3) is guilty of official misconduct and shall be punished as provided in 45-7-401.
          (4)         (a) The records described in subsection (3) must be disclosed to a member of the United
  States congress or a member of the Montana legislature if all of the following requirements are met:
          (i)         the member receives a written inquiry regarding a child and whether the laws of the United
  States or the state of Montana that protect children from abuse or neglect are being complied with or whether
  the laws need to be changed to enhance protections for children;
          (ii)        the member submits a written request to the department requesting to review the records
  relating to the written inquiry. The member's request must include a copy of the written inquiry, the name of the
  child whose records are to be reviewed, and any other information that will assist the department in locating the
  records.
          (iii)       before reviewing the records, the member:
          (A)         signs a form that outlines the state and federal laws regarding confidentiality and the penalties
  for unauthorized release of the information; and
          (B)         receives from the department an orientation of the content and structure of the records. The
  orientation must include a checklist of documents that are regularly included in records, including but not limited
  to the following:
          (I)         any petition filed pursuant to Title 41, chapter 3, part 4, including any supporting affidavits and
  evidence;
          (II)        any court orders issued pursuant to Title 41, chapter 3, parts 4 and 6;
          (III)       notes from family engagement meetings and foster care review meetings; and
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68th Legislature 2023                                                                                              SB 116.1
            (IV)     notes included in electronic case records or in case files maintained in local offices regarding
  staffing and interactions with parents or legal guardians, providers, or attorneys.
            (b)      (i) Without disclosing the identity of a person who reported the alleged child abuse or neglect,
  the department shall make available to the member all records concerning the child who is the subject of the
  written inquiry.
            (ii)     Records Except as provided in subsection (4)(b)(iii), records disclosed pursuant to this
  subsection (4)(a) are confidential, must be made available for the member to view but may not be copied,
  recorded, photographed, or otherwise replicated by the member, and must remain solely in the department's
  possession. The member must be allowed to view the records in the local office where the case is or was
  active.
            (iii)    A member may take notes to discuss the records with a parent or legal guardian about whom a
  report of alleged child abuse or neglect is made.
            (c)      Access to records requested pursuant to this subsection (4) is limited to 6 months from the date
  the written request to review records was received by the department.
            (5)      (a) The records described in subsection (3) must be promptly released to any of the following
  individuals upon a written request by the individual to the department or the department's designee:
            (i)      the attorney general;
            (ii)     a county attorney or deputy county attorney of the county in which the alleged abuse or neglect
  occurred;
            (iii)    a peace officer, as defined in 45-2-101, in the jurisdiction in which the alleged abuse or neglect
  occurred; or
            (iv)     the office of the child and family ombudsman.
            (b)      The records described in subsection (3) must be promptly disclosed by the department to an
  appropriate individual described in subsection (5)(a) or to a county or regional interdisciplinary child information
  and school safety team established pursuant to 52-2-211 upon the department's receipt of a report indicating
  that any of the following has occurred:
            (i)      the death of the child as a result of child abuse or neglect;
            (ii)     a sexual offense, as defined in 46-23-502, against the child;
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68th Legislature 2023                                                                                               SB 116.1
          (iii)    exposure of the child to an actual and not a simulated violent offense as defined in 46-23-502;
  or
          (iv)     child abuse or neglect, as defined in 41-3-102, due to exposure of the child to circumstances
  constituting the criminal manufacture or distribution of dangerous drugs.
          (c)      (i) The department shall promptly disclose the results of an investigation to an individual
  described in subsection (5)(a) or to a county or regional interdisciplinary child information and school safety
  team established pursuant to 52-2-211 upon the determination that:
          (A)      there is reasonable cause to suspect that a child has been exposed to a Schedule I or
  Schedule II drug whose manufacture, sale, or possession is prohibited under state law; or
          (B)      a child has been exposed to drug paraphernalia used for the manufacture, sale, or possession
  of a Schedule I or Schedule II drug that is prohibited by state law.
          (ii)     For the purposes of this subsection (5)(c), exposure occurs when a child is caused or permitted
  to inhale, have contact with, or ingest a Schedule I or Schedule II drug that is prohibited by state law or have
  contact with drug paraphernalia as defined in 45-10-101.
          (d)      (i) Except as provided in subsection (5)(d)(ii), the records described in subsection (3) must be
  released within 5 business days to the county attorney of the county in which the acts that are the subject of a
  report occurred upon the department's receipt of a report that includes an allegation of sexual abuse or sexual
  exploitation. The department shall also report to any other appropriate individual described in subsection (5)(a)
  and to a county or regional interdisciplinary child information and school safety team established pursuant to
  52-2-211.
          (ii)     If the exception in 41-3-202(1)(b) applies, a contractor described in 41-3-201(2)(j) that provides
  confidential services to victims of sexual assault shall report to the department as provided in this part without
  disclosing the names of the victim and the alleged perpetrator of sexual abuse or sexual exploitation.
          (iii)    When a contractor described in 41-3-201(2)(j) that provides confidential services to victims of
  sexual assault provides services to youth over the age of 13 who are victims of sexual abuse and sexual
  exploitation, the contractor may not dissuade or obstruct a victim from reporting the criminal activity and, upon a
  request by the victim, shall facilitate disclosure to the county attorney and a law enforcement officer as
  described in Title 7, chapter 32, in the jurisdiction where the alleged abuse occurred.
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68th Legislature 2023                                                                                              SB 116.1
          (6)      A school or school district may disclose, without consent, personally identifiable information
  from the education records of a pupil to the department, the court, a review board, and the child's assigned
  attorney, guardian ad litem, or special advocate.
          (7)      Information that identifies a person as a participant in or recipient of substance abuse treatment
  services may be disclosed only as allowed by federal substance abuse confidentiality laws, including the
  consent provisions of the law.
          (8)      The confidentiality provisions of this section must be construed to allow a court of this state to
  share information with other courts of this state or of another state when necessary to expedite the interstate
  placement of children.
          (9)      A person who is authorized to receive records under this section shall maintain the
  confidentiality of the records and may not disclose information in the records to anyone other than the persons
  described in subsections (3)(a)(i), (4)(b)(iii), and (5). However, this subsection may not be construed to compel
  a family member to keep the proceedings confidential.
          (10)     A news organization o