HSB 604 (LSB 5193XD (8) 86)

SENATE/HOUSE FILE _____

BY  (PROPOSED STATE PUBLIC DEFENDER BILL)

A BILL FOR

An Act relating to the confidentiality of juvenile court records.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 232.19, subsection 4, Code 2016, is amended by striking the subsection.
    Sec. 2.  Section 232.147, subsection 2, Code 2016, is amended by striking the subsection.
    Sec. 3.  Section 232.147, subsection 3, unnumbered paragraph 1, Code 2016, is amended to read as follows:
   Official juvenile court records in all cases except those alleging delinquency shall be confidential and are not public records but may be inspected and their contents shall be disclosed to the following without court order:
    Sec. 4.  Section 232.149, subsection 2, Code 2016, is amended to read as follows:
   2.  Records and files of a criminal or juvenile justice agency concerning a child involved in a delinquent act are public records, except that release of criminal history data, intelligence data, and law enforcement investigatory files is subject to the provisions of section 22.7 and chapter 692, and juvenile court social records, as defined in section 232.2, subsection 31, shall be deemed confidential criminal identification files under section 22.7, subsection 9

confidential. The records are subject to sealing under section 232.150 unless the juvenile court waives its jurisdiction over the child so that the child may be prosecuted as an adult for a public offense.
    Sec. 5.  Section 232.149A, Code 2016, is amended to read as follows:
   232.149A  Confidentiality Public records orders.
   1.  Notwithstanding any other provision of the Code to the contrary A rebuttable presumption exists that official juvenile court records in delinquency proceedings shall remain confidential. However, upon application of a any person who was taken into custody for a delinquent act or was the subject of a complaint alleging delinquency or was the subject of a delinquency petition, or upon the court’s own motion, the court after a hearing held prior to disposition, shall order official juvenile court records in the case delinquency proceedings to be kept confidential and no longer made public records under sections 232.147 and 232.149, if the court finds both of the following apply:
   a.  The case has been dismissed and the person is no longer subject to the jurisdiction of the juvenile court.
   b.  Making that making the records confidential public is in the best interests of the person child and the public.
   2.  The records subject to a confidentiality public records order may be sealed at a later date if section 232.150 applies.
   3.  Official juvenile court records subject to a confidentiality order which are confidential under section 232.147 may be inspected and their contents shall be disclosed to the following without court order:
   a.  The judge and professional court staff, including juvenile court officers.
   b.  The child and the child’s counsel.
   c.  The child’s parent, guardian, or custodian, court appointed special advocate, and guardian ad litem, and the members of the child advocacy board created in section 237.16 or a local citizen foster care review board created in accordance with section 237.19 who are assigning or reviewing the child’s case.
   d.  The county attorney and the county attorney’s assistants.
   e.  An agency, association, facility, or institution which has custody of the child, or is legally responsible for the care, treatment, or supervision of the child, including but not limited to the department of human services.
   f.  A court, court professional staff, and adult probation officers in connection with the preparation of a presentence report concerning a person who had been the subject of a juvenile court proceeding.
   g.  The child’s foster parent or an individual providing preadoptive care to the child.
   h.  A state or local law enforcement agency.
   i.  The state public defender.
   4.  If the child has been discharged from the jurisdiction of the juvenile court due to reaching the age of eighteen and restitution remains unpaid, the name of the court, the title of the action, and the court’s file number shall not be kept confidential, and the restitution amount shall be a judgment and lien as provided in sections 910.7A, 910.8, 910.10, and 915.28 until the restitution is paid.
   5.  Pursuant to court order, official juvenile court records subject to a confidentiality order which are confidential under section 232.147 may be inspected by and their contents may be disclosed to:
   a.  A person conducting bona fide research for research purposes under whatever conditions the court may deem proper, provided that no personal identifying data shall be disclosed to such a person.
   b.  Persons who have a direct interest in a proceeding or in the work of the court.
   6.  Notwithstanding any other provision of this section, upon application of any person and order of the court at any time prior to the termination of juvenile court jurisdiction over the child, the court, after a hearing, may order the official juvenile court records in delinquency proceedings to be public records if any of the following apply:
   a.  The child has been subsequently convicted of a felony or an aggravated or serious misdemeanor or adjudicated a delinquent child for an act which if committed by an adult would be a felony or an aggravated or serious misdemeanor.
   b.  The child was placed on youthful offender status, transferred back to the district court after the youthful offender’s eighteenth birthday, and sentenced for the offense which precipitated the youthful offender placement.
    Sec. 6.  NEW SECTION.  232.149B  Right to counsel in a public records order hearing.
   1.  A person who is or is not a child shall have the right to be represented by counsel at a public records order hearing held under section 232.149A.
   2.  Such person’s right to be represented by counsel under subsection 1 shall not be waived by the person if the person is a child less than sixteen years of age without the written consent of such child’s parent, guardian, or custodian.
   3.  If the person is a child and is not represented by counsel as required under subsection 1, counsel shall be provided as follows:
   a.  If the court determines, after giving the child’s parent, guardian, or custodian an opportunity to be heard, that such person has the ability in whole or in part to pay for the employment of counsel, the court shall either order that person to retain an attorney to represent the child or shall appoint counsel for the child and order the parent, guardian, or custodian to pay for that counsel as provided in subsection 5.
   b.  If the court determines that the parent, guardian, or custodian cannot pay any part of the expenses of counsel to represent the child, the court shall appoint counsel, who shall be reimbursed according to section 232.141, subsection 2, paragraph “b”.
   c.  The court may appoint counsel to represent the child and reserve the determination of payment until the parent, guardian, or custodian has an opportunity to be heard.
   4.  If the person is a child and is represented by counsel and the court determines that there is a conflict of interest between the child and the child’s parent, guardian, or custodian and that the retained counsel could not properly represent the child as a result of the conflict, the court shall appoint other counsel to represent the child and order the parent, guardian, or custodian to pay for such counsel as provided in subsection 5.
   5.  If the person is a child and the court determines, after an inquiry which includes notice and reasonable opportunity to be heard, that the parent, guardian, or custodian has the ability to pay in whole or in part for the attorney appointed for the child, the court may order that person to pay such sums as the court finds appropriate in the manner and to whom the court directs. If that person so ordered fails to comply with the order without good reason, the court shall enter judgment against the person.
   6.  If the person is not a child and is not represented by counsel as required under subsection 1, counsel shall be provided as follows:
   a.  If the court determines, after giving the person an opportunity to be heard, that such person has the ability in whole or in part to pay for the employment of counsel, the court shall either allow the person to retain an attorney or shall appoint counsel for the person and order the person to pay such sums as the court finds appropriate in the manner and to whom the court directs. If the person so ordered fails to comply with the order without good reason, the court shall enter judgment against the person.
   b.  If the court determines that the person cannot pay any part of the expenses of counsel, the court shall appoint counsel, who shall be reimbursed according to section 232.141, subsection 2, paragraph “b”.
   c.  The court may appoint counsel to represent the person and reserve the determination of payment until the person has an opportunity to be heard.
    Sec. 7.  Section 815.9, subsection 9, Code 2016, is amended to read as follows:
   9.  Notwithstanding subsections 3 and 6, a minor granted a court-appointed attorney or guardian ad litem under section 232.11 in a juvenile proceeding or a person granted a court-appointed attorney under section 232.149B in a public records order hearing shall not be ordered to reimburse costs and fees incurred for legal assistance except as otherwise provided in chapter 232.
    Sec. 8.  REPEAL.  Section 915.25, Code 2016, is repealed.
    Sec. 9.  APPLICABILITY.  The sections of this Act amending, enacting, or repealing sections 232.19, 232.147, 232.149, 232.149A, 232.149B, 815.9, and 915.25 apply to juvenile delinquency proceedings which are pending or arise on or after July 1, 2016.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to the confidentiality of juvenile court records.
   Under current law, juvenile court records in cases alleging delinquency are public records unless a judge grants a request to make the records confidential or seals the records.
   The bill amends current law and provides that juvenile court records in cases alleging delinquency are confidential unless a judge grants a request to make the juvenile court records public if the court finds, after a hearing held prior to disposition, that making the records public is in the best interests of the juvenile and the public. A rebuttable presumption exists that the juvenile court delinquency records shall remain confidential. Even if a child’s juvenile court delinquency records are confidential, a court may, after a hearing, order such records to be made public records if the child is subsequently convicted of a felony or an aggravated or serious misdemeanor or adjudicated a delinquent child for an act which if committed by an adult would be a felony or an aggravated or serious misdemeanor, or if the child was placed on youthful offender status, transferred back to the district court after the youthful offender’s 18th birthday, and sentenced for the offense which precipitated the youthful offender placement. The bill provides that a child has the right to be represented by counsel during a public records order hearing, even if such hearing occurs after the child’s 18th birthday. If a judge orders such records to be public, the records may still be sealed at a later date pursuant to Code section 232.150.
   The bill provides that juvenile court records in cases alleging delinquency may be, without a court order, inspected by and disclosed to the judge and professional court staff, the child and the child’s counsel, the child’s parent, guardian, or custodian, court-appointed special advocate, and guardian ad litem, and the members of the child advocacy board created in Code section 237.16 or a local citizen foster care review board created in accordance with Code section 237.19, the county attorney and the county attorney’s assistants, an agency, association, facility, or institution which has custody of the child, or is legally responsible for the care, treatment, or supervision of the child, a court, court professional staff, and adult probation officers in connection with the preparation of a presentence report concerning a person who prior thereto had been the subject of a juvenile court proceeding, the child’s foster parent or an individual providing preadoptive care to the child, a law enforcement agency, and the state public defender.
   Under current law, records and files of a criminal or juvenile justice agency concerning a child involved in a delinquent act are public records, subject to certain exemptions. The bill provides that such records and files are confidential.
   Under current law, a complaint which alleges that a child who is at least 10 years of age has committed a delinquent act, which if committed by an adult would be a public offense, is a public record and is not confidential under Code section 232.147. The bill repeals Code section 915.25 and provides that such a complaint is subject to Code section 232.147, and therefore is confidential.
   The bill retains certain existing exemptions to confidentiality of juvenile court records. Pursuant to Code section 692A.121(8), records concerning sex offense convictions which are committed by minors may be released in the same manner as records of convictions of adults. Pursuant to Code section 915.10A, information concerning a juvenile charged with a felony offense may be released pursuant to an automated victim notification system. Under the bill, these exemptions to confidentiality are not amended and therefore still apply to juvenile court records.
   The bill applies to juvenile delinquency proceedings which are pending or arise on or after July 1, 2016.