COMMITTEE SUBSTITUTE
FOR
H. B. 4037
(By Delegates Williams, Renner, Perry, Tabb, Long,
Paxton and Sumner)
(Originating in the Committee on Education)
[January 23, 2004]
A BILL to amend and reenact §49-5-17 of the code of West Virginia,
1931, as amended, relating to providing certain juvenile
justice records to public school officials and limiting
disclosure of certain records.
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 types of juvenile
juveniles records shall be disclosed. These include and are
limited to cases in which:
(A) The juvenile has been charged with an offense which:
would be a felony if the juvenile were an adult and
(i) The offense Involves violence against another person;
(ii) The offense Involves possession of a dangerous or deadly
weapon; or
(iii) The offense 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 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, article
five, chapter forty-nine of this code; 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.
(3) If the juvenile attends a West Virginia public school, the
person designated by the circuit court shall automatically disclose
all records of a juvenile the juvenile's case to the county
superintendent of schools in the county in which the juvenile
attends school. The person designated by the circuit court shall
also automatically disclose all records of a juvenile the
juvenile's case to the principal of the school which the juvenile
attends: Provided, That 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 thereunder, the
person designated by the circuit court shall provide the
superintendent and principal such notice of the existence of the
record as is permissible under the Act and, if applicable, what
action is required to obtain the record. At a minimum, the records
shall disclose the following information: (A) Copies of the
arrest report; (B) copies of all investigations; (C) copies of any
psychological testing reports and results; (D) copies of any
evaluation reports for probation or facility placement; and (E) any
other material that would alert the school to potential danger that
the juvenile may pose to himself, herself or others: Provided, however, That the disclosure of the juvenile's psychological test
reports and results shall only be made in accordance with
subdivision (14) of this subsection: Provided, further, That the
person designated by the circuit court is required only to disclose
material that had not previously been disclosed in the juvenile
record to the county superintendent and the school if multiple
disclosures are required by this subsection.
(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 may 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. However, to
facilitate the transfer of juvenile records between schools and
counties when a student transfers to another school in this state,
the department of education shall provide an appropriate field on
the West Virginia Education Information System on which the county shall notice the existence of juvenile records of students enrolled
in the county. 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 or 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 or mental health records. The person designated
by the county superintendent shall review the juvenile's
psychological test or mental health records and shall, in his or
her professional judgment, disclose to the principal of the school
that the juvenile attends, and other school employees who would
have a need to know the results of the juvenile's psychological
test, mental health and any behavior that may trigger violence or
other disruptive behavior by the juvenile, including, but not
limited 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.
(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) 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) Any person who willfully violates this section shall be
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 so fined and
confined, and shall be liable for damages in the amount of three
hundred dollars or actual damages, whichever is greater.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.