WEST VIRGINIA LEGISLATURE
2022 REGULAR SESSION
House Bill 4308
By Delegates Capito, Zukoff, Fluharty, Garcia, Kimble, Lovejoy and Pushkin
[Passed February 21, 2022; in effect ninety days from passage.]
AN ACT to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §14-2A-11a; to amend and reenact §14-2A-14 of said code; and to amend and reenact §49-5-101 of said code, all relating generally to confidentiality of juvenile records and exceptions thereto; declaring that records in the possession of the Crime Victim Compensation Fund regarding juveniles who are the subject of an abuse or neglect petition are confidential; expanding the class of persons who may apply to the Crime Victim’s Fund on behalf of a child who is the subject of a civil abuse and neglect petition; specifying that official records relating to a child or juvenile may be disclosed for evaluation of a Crime Victims’ Compensation Fund application; including the Juvenile Justice Commission and its designees acting in the courses of their official duties to the list of persons and entities granted access to confidential juvenile records; granting the West Virginia Crime Victims Compensation Fund and its designees access to certain information related to child abuse or neglect proceedings; granting a current or former employee of the Division of Corrections and Rehabilitation access to relevant juvenile records for purposes of pursuing a grievance; permitting the release of such records only after a hearing to determine relevance, held before the Public Employees Grievance Board; providing for the sealing of such relevant records from public view and the redaction of any identifying information related to the juvenile; placing certain limitations on the grieving party’s use of such records; permitting a grieving party’s attorney or representative access to such records; requiring records be returned following conclusion of grievance procedure; requiring a court order for any further use of such records outside of the grievance proceeding; requiring that such court orders limit disclosure to the purposes of the proceeding; and clarifying that nothing in the section may be construed to abrogate the Freedom of Information Act.
Be it enacted by the Legislature of West Virginia:
CHAPTER 14. CLAIMS DUE AND AGAINST THE STATE.
ARTICLE 2A. COMPENSATION AWARDS TO VICTIMS OF CRIMES.
§14-2A-11a. Application when the victim is the subject of a civil abuse or neglect petition; confidentiality of records.
(a) An application for benefits on behalf of a minor child who is the subject of a civil abuse and neglect petition may be filed by a foster parent, legal guardian of the minor child, court appointed guardian ad litem, or any person or entity having legal custody of the minor child, including the agency which filed the civil abuse and neglect petition.
(b) All crime victims’ compensation fund records and proceedings related to a claim filed on behalf of a minor child who is the subject of a civil abuse and neglect petition are confidential and may not be disclosed to any person who is not a necessary participant in the proceedings. Information, details, and identities of parties in the claim shall not be published, except in the form of statistical reporting, identified only by claim number, as necessary to satisfy the requirements of federal and state law.
§14-2A-14. Grounds for denial of claim or reduction of awards; maximum award.
(a) Except as provided in §14-2A-10(b) of this code, the commissioner may not approve an award of compensation to a claimant who did not file his or her application for an award of compensation within two years after the date of the occurrence of the criminally injurious conduct that caused the injury or death for which he or she is seeking an award of compensation.
(b) The commissioner may not approve an award of compensation if the criminally injurious conduct upon which the claim is based was not reported to a law-enforcement officer or agency or, in the case of sexual offense, the victim did not undergo a forensic medical examination, within 96 hours after the occurrence of the conduct, unless it is determined that good cause existed for the failure to report the conduct or undergo a forensic medical examination within the 96-hour period: Provided, That reporting to a law-enforcement officer or agency or a forensic medical examination is not required if the victim is a juvenile in order for a commissioner to approve an award of compensation: Provided, however, That the filing of a civil abuse and neglect petition in a circuit court satisfies the reporting requirement, thereby allowing the minor child who is the subject of the petition to file an application for benefits, with the claims process to proceed in accordance with this code.
(c) The commissioner may not approve an award of compensation to a claimant who is the offender or an accomplice of the offender who committed the criminally injurious conduct, nor to any claimant if the award would unjustly benefit the offender or his or her accomplice.
(d) A commissioner, upon a finding that the claimant or victim has not fully cooperated with appropriate law-enforcement agencies or the claim investigator, may deny a claim, reduce an award of compensation, or reconsider a claim already approved.
(e) A commissioner may not approve an award of compensation if the injury occurred while the victim was confined in any state, county, or regional jail, prison, private prison, or correctional facility.
(f) After reaching a decision to approve an award of compensation, but prior to announcing the approval, the commissioner shall require the claimant to submit current information as to collateral sources on forms prescribed by the Clerk of the West Virginia Legislative Claims Commission. The commissioner shall reduce an award of compensation or deny a claim for an award of compensation that is otherwise payable to a claimant to the extent that the economic loss upon which the claim is based is or will be recouped from other persons, including collateral sources, or if the reduction or denial is determined to be reasonable because of the contributory misconduct of the claimant or of a victim through whom he or she claims. If an award is reduced or a claim is denied because of the expected recoupment of all or part of the economic loss of the claimant from a collateral source, the amount of the award or the denial of the claim shall be conditioned upon the claimant’s economic loss being recouped by the collateral source: Provided, That if it is thereafter determined that the claimant will not receive all or part of the expected recoupment, the claim shall be reopened and an award shall be approved in an amount equal to the amount of expected recoupment that it is determined the claimant will not receive from the collateral source, subject to the limitation set forth in subsection (g) of this section.
(g)(1) Except in the case of death, or as provided in subdivision (2) of this subsection, compensation payable to a victim and to all other claimants sustaining economic loss because of injury to that victim may not exceed $35,000 in the aggregate. Compensation payable to all claimants because of the death of the victim may not exceed $50,000 in the aggregate.
(2) In the event the victim’s personal injuries are so severe as to leave the victim with a disability, as defined in Section 223 of the Social Security Act, as amended, as codified in 42 U. S. C. §423, the commission may award an additional amount, not to exceed $100,000, for special needs attributable to the injury.
(h) If an award of compensation of $5,000 or more is made to a minor, a guardian shall be appointed pursuant to the provisions of §44-10-1 et seq. of this code to manage the minor’s estate.
ARTICLE 5. RECORD KEEPING AND DATABASE.
§49-5-101. Confidentiality of records; non-release of records; exceptions; penalties.
(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 Corrections and Rehabilitation, the Department of Health and Human Resources, a child agency or facility, or court or law-enforcement agency, are confidential and may 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 and records disclosing the identity of a person making a complaint of child abuse or neglect, may be made available:
(1) Where otherwise authorized by this chapter;
(A) The child;
(B) A parent whose parental rights have not been terminated;
(C) The attorney of the child or parent; and
(D) The Juvenile Justice Commission and its’ designees acting in the course of their official duties;
(3) With the written consent of the child or of someone authorized to act on the child’s behalf; and
(4) Pursuant to an order of a court of record: Provided, That the court shall review the record or records for relevancy and materiality to the issues in the proceeding and safety, 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 those entities, including law-enforcement agencies and prosecuting attorneys, having a need for that 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 court, upon a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court, or family court; and
(6) The West Virginia Crime Victims Compensation Fund and its designees acting in the course of their official duties.
(d) If there is a child fatality or near fatality due to child abuse and neglect, information relating to a fatality or near fatality shall be made public by the Department of Health and Human Resources and provided 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 may 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 §49-5-103 of this code.
(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 $1,000, or confined in jail for not more than six months, or both fined and confined. A person convicted of violating this section is also liable for damages in the amount of $300, 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;
(h)(1) Notwithstanding the provisions of this section or any other provision of this code to the contrary, the Division of Corrections and Rehabilitation may provide access to, and the confidential use of, a treatment plan, court records, or other records of a juvenile to an agency in another state which:
(A) Performs the same functions in that state that are performed by the Division of Corrections and Rehabilitation in this state;
(B) Has a reciprocal agreement with this state; and
(C) Has legal custody of the juvenile.
(2) A record which is shared under this subsection may only provide information which is relevant to the supervision, care, custody, and treatment of the juvenile.
(3) The Division of Corrections and Rehabilitation may enter into reciprocal agreements with other states and propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement this subsection; and
(4) Other than the authorization explicitly given in this subsection, this subsection may not be construed to enlarge or restrict access to juvenile records as provided elsewhere in this code.
(i) The records subject to disclosure pursuant to subsection (b) of this section may not include a recorded/videotaped interview, as defined in §62-6B-2(6) of this code, the disclosure of which is exclusively subject to §62-6B-6 of this code.
(j) Notwithstanding the provisions of subsection (a) of this section, records in the possession of the Division of Corrections and Rehabilitation declared to be confidential by the provisions of subsection (a) of this section may be published and disclosed for use in an employee grievance if the disclosure is done in compliance with subsections (k), (l), and (m) of this section.
(k) Records or information declared confidential by the provisions of this section may not be released for use in a grievance proceeding except:
(1) Upon written motion of a party; and
(2) Upon an order of the Public Employee’s Grievance Board entered after an in-camera hearing as to the relevance of the record or information.
(l) If production of confidential records or information is disclosed to a grievant, his or her counsel or representative, pursuant to subsection (k) of this section:
(1) The division shall ensure that written records or information is redacted of all identifying information of any juvenile which is not relevant to the resolution of the grievance;
(2) Relevant video and audio records may be disclosed without redaction; and
(3) Records or other information released to a grievant or his or her counsel or representative pursuant to subsection (k) of this section may only be used for purposes of his or her grievance proceeding and may not be disclosed, published, copied, or distributed for any other purpose, and upon the conclusion of the grievance procedure, returned to the Division of Corrections and Rehabilitation.
(m) If a grievant or the Division of Corrections and Rehabilitation seek judicial review of a decision of the Public Employee’s Grievance Board, the relevant confidential records disclosed and used in the grievance proceeding may be used in the appeal proceeding upon entry of an order by the circuit court, the order shall contain a provision limiting disclosure or publication of the records or information to purposes necessary to the proceeding and prohibiting unauthorized use and reproduction.
(n) Nothing in this section may be construed to abrogate the provisions of §29B-1-1 et seq. of this code.
The Joint Committee on Enrolled Bills hereby certifies that the foregoing bill is correctly enrolled.
Chairman, House Committee
Chairman, Senate Committee
Originating in the House.
In effect ninety days from passage.
Clerk of the House of Delegates
Clerk of the Senate
Speaker of the House of Delegates
President of the Senate
The within ................................................... this the...........................................
day of ..........................................................................................................., 2022.