HOUSE BILL 10
56th legislature - STATE OF NEW MEXICO - first session, 2023
INTRODUCED BY
Marian Matthews and Greg Nibert and Tara Jaramillo and
Meredith A. Dixon and Reena Szczepanski
AN ACT
RELATING TO CHILDREN; SPECIFYING TO WHOM AND UNDER WHAT CIRCUMSTANCES INFORMATION THAT IS HELD BY THE CHILDREN, YOUTH AND FAMILIES DEPARTMENT THAT PERTAINS TO CHILDREN MAY BE SHARED; PRESCRIBING A PENALTY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Children's Code is enacted to read:
"[NEW MATERIAL] DEPARTMENT INFORMATION--PUBLIC RECORD-- USE--CONFIDENTIALITY--CLASSIFICATION--VIOLATION.--
A. As used in this section:
(1) "department information" includes all information the department gathers during the course of an investigation conducted from the time a file is opened and until it is closed. "Department information" does not include information that is contained in child welfare agency licensing records; and
(2) "exigent circumstances" means a condition or situation in which the death of or serious injury to a child will likely result in the near future without immediate intervention.
B. Department information shall be maintained by the department as required by federal law as a condition of the allocation of federal money to New Mexico. All exceptions for the public release of department information shall be construed as openly as possible under federal and state law.
C. The department, or a person who receives department information pursuant to this subsection, shall provide department information to a federal, state, tribal, county or municipal law enforcement agency; a prosecutor; an attorney or guardian ad litem representing a child victim of a crime; a school; a community service provider; a contract service provider; or any other person that is providing services to a child pursuant to the Children's Code to:
(1) meet its duties to provide for the safety and permanency of a child; provide services to a parent, guardian or custodian; or provide services to family members to strengthen the family;
(2) enforce or prosecute any violation involving child abuse or neglect or to assert the rights of the child as a victim of a crime;
(3) provide information to a defendant after a criminal charge has been filed as required by an order of the criminal court; or
(4) help investigate and prosecute any violation involving domestic violence or violent sexual assault of a child.
D. The department shall disclose department information to:
(1) a court, a party in a dependency or termination of parental rights proceeding or the party's attorney; a substitute care review board; or a court-appointed special advocate;
(2) a domestic relations, family or conciliation court if the department information is necessary to promote the safety and well-being of children, and the court shall notify the parties that it has received the department information;
(3) a medical examiner directing an investigation into the circumstances surrounding a death; or
(4) a person or agent of a person who is the subject of department information, but shall have access only to department information concerning that person.
E. To provide oversight of the department, the department shall provide access to department information to the following persons, if the department information is reasonably necessary for the person to perform the person's official duties:
(1) federal or state auditors;
(2) persons conducting any accreditation deemed necessary by the department;
(3) a standing committee of the legislature or a special committee appointed by the president pro tempore of the senate or the speaker of the house of representatives for purposes of conducting investigations related to the legislative oversight of the department; provided that any department information disclosed to a legislative committee shall not be further disclosed unless a court has ordered the disclosure of the information, the information has been disclosed in a public or court record or the information has been disclosed in the course of a public meeting or court proceeding;
(4) an independent oversight committee established by the legislature or the governor;
(5) a citizen review panel as prescribed by federal law or a child fatality review team of the department of health; or
(6) the governor, who shall not disclose any information unless a court has ordered the disclosure of the information, the information has been disclosed in a public or court record or the information has been disclosed in the course of a public meeting or court proceeding.
F. The department may provide department information:
(1) to confirm, clarify, correct or supplement information concerning an allegation or actual instance of child abuse or neglect that has been made public by a source or sources outside the department;
(2) to a person who is conducting bona fide research, the results of which might provide department information that is beneficial in improving the department; provided that any disaggregated data or research using department information shall not identify department clients;
(3) to the parent, guardian or custodian of a child if the department information is reasonably necessary to promote the safety, permanency and well-being of the child; and
(4) if an employee of the department has a reasonable belief that exigent circumstances exist.
G. A person who has been denied department information regarding a fatality or near fatality caused by abuse, abandonment or neglect may bring a suit in the first judicial district court to order the department to release that department information. The court shall determine if the person has standing to bring the action. The plaintiff shall provide notice to the district attorney, who has standing and may participate in the action. The court shall review the requested records in camera and order disclosure consistent with this section and other sections of law pertaining to confidentiality of child or medical records. The court shall take reasonable steps to prevent any clearly unwarranted invasions of privacy and protect the privacy and dignity of victims of crime.
H. The department or a person who is not specifically authorized by this section to obtain department information may petition the first judicial district court for Santa Fe county to order the department to release specified department information. The plaintiff shall provide notice to the district attorney and to the attorney and guardian ad litem for the child, who have standing and may participate in the action. The court shall review the requested records in camera and shall balance the rights of the parties who are entitled to confidentiality pursuant to this section against the rights of the parties who are seeking the release of the department information. The court may release otherwise confidential department information only if the rights of the parties seeking the department information and any benefits from releasing the department information outweigh the rights of the parties who are entitled to confidentiality and any harm that may result from releasing the department information. The court shall take reasonable steps to prevent any clearly unwarranted invasions of privacy and protect the privacy and dignity of victims of crime.
I. Except as provided in Subsection J of this section, before it releases records under this section or any other confidentiality statute, the department shall take whatever precautions it determines are reasonably necessary to protect the identity and safety of a person who reports child abuse or neglect and to protect any other person if the department believes that disclosure of the department information would be likely to endanger the life or safety of that person. The department is not required by this section to disclose department information if the disclosure would cause a specific, material harm to a department investigation. The department is not required by this section to disclose department information if, after consultation with the district attorney, the district attorney determines that disclosure would cause a specific, material harm to a criminal investigation or prosecution.
J. A person who is the subject of an unfounded report or complaint and who believes that the report or complaint was made in bad faith or with malicious intent may petition the first judicial district court for Santa Fe county to order the department to release the department information. The petition shall specifically set forth reasons supporting the person's belief that the report or complaint was made in bad faith or with malicious intent. The court shall review the department information in camera and the person filing the petition shall be allowed to present evidence in support of the petition. If the court determines that there is a reasonable question of fact as to whether the report or complaint was made in bad faith or with malicious intent and that disclosure of the identity of the person making the report or complaint would not be likely to endanger the life or safety of the person making the report or complaint, it shall provide a copy of the department information to the person filing the petition and the original department information is subject to discovery in a subsequent civil action regarding the making of the report or complaint.
K. The department shall provide the person who conducts a forensic medical evaluation with any records the person requests, including social history and family history regarding the child, the child's siblings and the child's parents or guardians.
L. The department shall provide department information on request to a prospective adoptive parent, foster parent or guardian if the information concerns a child the prospective adoptive parent, foster parent or guardian seeks to adopt or provide care for.
M. If the department receives information that is confidential by law, the department shall maintain the confidentiality of the information as prescribed in the applicable law.
N. A person may authorize the release of department information about that person but may not waive the confidentiality of department information concerning any other person.
O. The department may provide a summary of the outcome of a department investigation to the person who reported the suspected child abuse or neglect.
P. The department shall adopt rules to facilitate the accessibility of department information.
Q. The department or a person who receives department information pursuant to this section shall provide department information to law enforcement and a court to protect the safety of any employee of the department or the office of the attorney general or to protect a family member of such an employee.
R. A person who receives department information shall maintain the confidentiality of the information and shall not further disclose the information unless the disclosure is authorized by law or a court order.
S. The department may charge a fee for copying costs required to prepare department information.
T. A person who violates a provision of this section regarding department information that is subject to confidentiality is guilty of a misdemeanor and may be punished as provided in Section 31-19-1 NMSA 1978."
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