ENROLLED SENATE
BILL NO. 460	By:	Griffin of the Senate

			and

		Nelson and Pittman of the House

An Act relating to child abuse; amending 10A O.S. 2011, Sections 1-2-101 and 1-6-102, as amended by Section 1, Chapter 343, O.S.L. 2012 (10A O.S. Supp. 2012, Section 1-6-102), which relate to the Oklahoma Children's Code; requiring Department of Human Services to electronically record hotline referrals; directing Department retain recording for certain time period; describing nature of recording; providing penalties for failures to report child abuse; permitting disclosure of recording in limited circumstances; requiring Department to redact identifying information in certain cases; construing provision; and providing an effective date.

SUBJECT:  Child abuse

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:

SECTION 1.     AMENDATORY     10A O.S. 2011, Section 1-2-101, is amended to read as follows:

Section 1-2-101.  A.  1.  The Department of Human Services shall establish a statewide centralized hotline for the reporting of child abuse or neglect to the Department.

2.  The Department shall provide hotline-specific training including, but not limited to, interviewing skills, customer service skills, narrative writing, necessary computer systems, making case determinations, and identifying priority situations.

3.  The Department is authorized to contract with third parties in order to train hotline workers.

4.  The Department shall develop a system to track the number of calls received, and of that number:

a.	the number of calls screened out,

b.	the number of referrals assigned, and

c.	the number of calls in which the allegations were later found to be unsubstantiated or ruled out.

5.  The Department shall electronically record each referral received by the hotline and establish a secure means of retaining the recordings for ninety (90) days.  The recordings shall be confidential and subject to disclosure only in those cases in which criminal charges related to the referral have been filed and pursuant to the requirements of subsection E of Section 1-6-102 of this title.  If the court orders the disclosure of the referral, the Department shall redact any information identifying the reporting party unless otherwise ordered by the court.

B.  1.  Every person having reason to believe that a child under the age of eighteen (18) years is a victim of abuse or neglect shall report the matter promptly to the Department of Human Services.  Reports shall be made to the hotline provided for in subsection A of this section.  Any allegation of abuse or neglect reported in any manner to a county office shall immediately be referred to the hotline by the Department.  Provided, however, that in actions for custody by abandonment, provided for in Section 7 2-117 of this act Title 30 of the Oklahoma Statutes, there shall be no reporting requirement.

2.  Every physician, surgeon, or other health care professional including doctors of medicine, licensed osteopathic physicians, residents and interns, or any other health care professional attending the birth of a child who tests positive for alcohol or a controlled dangerous substance shall promptly report the matter to the Department.

3.  No privilege or contract shall relieve any person from the requirement of reporting pursuant to this section.

4.  The reporting obligations under this section are individual, and no employer, supervisor, or administrator shall interfere with the reporting obligations of any employee or other person or in any manner discriminate or retaliate against the employee or other person who in good faith reports suspected child abuse or neglect, or who provides testimony in any proceeding involving child abuse or neglect.  Any employer, supervisor, or administrator who discharges, discriminates or retaliates against the employee or other person shall be liable for damages, costs and attorney fees.

5.  Every physician, surgeon, or other health care professional making a report of abuse or neglect as required by this subsection or examining a child to determine the likelihood of abuse or neglect and every hospital or related institution in which the child was examined or treated shall provide, upon request, copies of the results of the examination or copies of the examination on which the report was based and any other clinical notes, x-rays, photographs, and other previous or current records relevant to the case to law enforcement officers conducting a criminal investigation into the case and to employees of the Department of Human Services conducting an investigation of alleged abuse or neglect in the case.

C.  Any person who knowingly and willfully fails to promptly report suspected child abuse or neglect or who interferes with the prompt reporting of suspected child abuse or neglect may be reported to local law enforcement for criminal investigation and, upon conviction thereof, shall be guilty of a misdemeanor.  Any person with prolonged knowledge of ongoing child abuse or neglect who knowingly and willfully fails to promptly report such knowledge may be reported to local law enforcement for criminal investigation and, upon conviction thereof, shall be guilty of a felony.  For the purposes of this paragraph, "prolonged knowledge" shall mean knowledge of at least six (6) months of child abuse or neglect.

D.  1.  Any person who knowingly and willfully makes a false report pursuant to the provisions of this section or a report that the person knows lacks factual foundation may be reported to local law enforcement for criminal investigation and, upon conviction thereof, shall be guilty of a misdemeanor.

2.  If a court determines that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose a fine, not to exceed Five Thousand Dollars ($5,000.00) and reasonable attorney fees incurred in recovering the sanctions, against the person making the accusation.  The remedy provided by this paragraph is in addition to paragraph 1 of this subsection or to any other remedy provided by law.

E.  Nothing contained in this section shall be construed to exempt or prohibit any person from reporting any suspected child abuse or neglect pursuant to subsection B of this section.

SECTION 2.     AMENDATORY     10A O.S. 2011, Section 1-6-102, as amended by Section 1, Chapter 343, O.S.L. 2012 (10A O.S. Supp. 2012, Section 1-6-102), is amended to read as follows:

Section 1-6-102.  A.  Except as provided by this section and except as otherwise specifically provided by state and federal laws, the following records are confidential and shall not be open to the general public or inspected or their contents disclosed:

1.  Juvenile court records;

2.  Agency records;

3.  District attorney's records;

4.  Law enforcement records;

5.  Nondirectory education records; and

6.  Social records.

B.  The limitation of subsection A of this section shall not apply to statistical information and other abstract information obtained pursuant to the provisions of the Oklahoma Children's Code.

C.  Except as authorized by Section 620.6 of Title 10 of the Oklahoma Statutes and this chapter and except as otherwise specifically provided by state and federal laws pertaining to education records, medical records, drug or alcohol treatment records, law enforcement, or social service records, the records listed in subsection A of this section shall be confidential and shall be inspected, released, disclosed, corrected or expunged only pursuant to an order of the court.  A subpoena or subpoena duces tecum purporting to compel testimony or disclosure of such information or record shall be invalid.

D.  1.  In a proceeding where the child custody or visitation is at issue, the safety analysis records of the Department shall be produced to the court when a parent, legal guardian, or child who is the subject of such record obtains a court order directing the production of the records.

2.  The person or party seeking the records shall proceed by filing a motion for production of safety analysis records which contains the following averments:

a.	the movant is a parent, legal guardian, or child who is the subject of the safety analysis records,

b.	child custody or visitation is at issue,

c.	that upon receipt from the court, the safety analysis records shall be kept confidential and disclosed only to the movant, the attorneys of the movant, those persons employed by or acting on behalf of the movant and the attorneys of the movant whose aid is necessary to the prosecution or defense of the child custody or visitation issue, and

d.	that a copy of the motion is being provided to the parties, the attorney of the child, if any, and the guardian ad litem, if any.

3.  Upon filing the motion for production of safety analysis records, the court may, in its discretion, enter an ex parte order for production of safety analysis records that shall be substantially in the following form:

CONFIDENTIAL RECORDS DISCLOSURE AND PROTECTIVE ORDER

NOW on this _____ day of _________, 20__, the court finds that child custody or visitation is at issue in the above styled and numbered proceeding and the disclosure of the safety analysis records of the Oklahoma Department of Human Services pursuant to Section 1-6-102 of this title is necessary and relevant to the court's determination of the child's best interests.  The court therefore orders as follows:

a.	The Oklahoma Department of Human Services ("Department" or "DHS") shall produce a copy of its safety analysis records to this court on or before ___ day of _______, 20__.

b.	The Department shall be permitted to redact or omit information in its safety analysis records which may identify the reporter of alleged child abuse or neglect.

c.	All information contained in the safety analysis records of the Department is confidential under Oklahoma law and shall be disclosed only to the parties, the attorneys of the parties, and those persons employed by or acting on behalf of the parties and the attorneys of the parties whose aid is necessary to the prosecution or defense of the child custody or visitation issue.

d.	No confidential information whether contained in pleadings, briefs, discovery, or other documents shall be filed except under seal with the legend "THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION AND IS SUBJECT TO A PROTECTIVE ORDER OF THE COURT".

e.	No person or entity shall utilize any information contained in the safety analysis records for any purpose other than the prosecution or defense of the child custody or visitation issues in this case.

f.	The release by counsel or any other person for any reason of identifiers such as social security or tax ID numbers that may be contained in the Department records and which belong to any person or entity is strictly prohibited.

g.	Any violation of this order shall be subject to prosecution for contempt of court.

IT IS SO ORDERED this ___ day of _______, 20__.

4.  This subsection shall not apply to:

a.	deprived child proceedings brought pursuant to the Oklahoma Children's Code,

b.	discovery of safety analysis records by a person or entity who is not the subject of those records, or

c.	discovery of safety analysis records in criminal, other civil, or administrative proceedings.

5.  The party who has obtained a court order for the safety analysis records of the Department shall provide the Department with the names and other identifying information concerning the subjects of the safety analysis records.

6.  Upon receipt of a court order to produce its safety analysis records, the Department shall be given a minimum of five (5) judicial days to deliver the records to the court.

7.  The safety analysis records provided by the Department to the court pursuant to this subsection shall not be subject to judicial review and shall be released by the court only to the litigants in the case under a protective order.

8.  A court order entered pursuant to this subsection which purports to require the Department to produce all agency records shall be deemed to require only the production of the safety analysis records of the Department.

9.  An employee of the Department shall not be compelled to testify about the safety analysis records except upon a court order directing such testimony.  Any subpoena or subpoena duces tecum purporting to compel disclosure of safety analysis records or testimony concerning such records without a court order shall be invalid.

10.  Except as provided by this subsection or other law, confidential records may be inspected, released, disclosed, corrected, or expunged only by the procedure set forth in subsection E of this section.

E.  When confidential records may be relevant in a criminal, civil, or administrative proceeding, an order of the court authorizing the inspection, release, disclosure, correction, or expungement of confidential records shall be entered by the court only after a judicial review of the records and a determination of necessity pursuant to the following procedure:

1.  A petition or motion shall be filed with the court describing with specificity the confidential records being sought and setting forth in detail the compelling reason why the inspection, release, disclosure, correction, or expungement of confidential records should be ordered by the court.  A petition or motion that does not contain the required specificity or detail may be subject to dismissal by the court;

2.  Upon the filing of the petition or motion, the court shall set a date for a hearing and shall require notice of not less than twenty (20) days to the agency or person holding the records and the person who is the subject of the record if such person is eighteen (18) years of age or older or to the parents of a child less than eighteen (18) years of age who is the subject of the record, to the attorneys, if any, of such person, child or parents and any other interested party as ordered by the court.  The court may also enter an ex parte order compelling the person or agency holding the records to either produce the records to the court on or before the date set for hearing or file an objection or appear for the hearing.  The court may shorten the time allowed for notice due to exigent circumstances;

3.  At the hearing, should the court find that a compelling reason does not exist for the confidential records to be judicially reviewed, the matter shall be dismissed; otherwise, the court shall order that the records be produced for a judicial review.  The hearing may be closed at the discretion of the court; and

4.  The judicial review of the records shall include a determination, with due regard for the confidentiality of the records and the privacy of persons identified in the records, as to whether an order should be entered authorizing the inspection, release, disclosure, correction, or expungement of the records based upon the need for the protection of a legitimate public or private interest.

F.  The court may, for good cause shown, prohibit the release of such confidential records or testimony or authorize a release of the confidential information or testimony upon such conditions as the court deems necessary and appropriate, subject to the provisions of this section.

G.  Any public or private agency, entity, or professional person required to produce confidential records pursuant to this section may require payment of fees from the party seeking the records prior to any records being produced, including a research fee not exceeding Twenty Dollars ($20.00) per hour and a copy fee not to exceed fifty cents ($0.50) per page and Five Dollars ($5.00) per copy of each video tape or disk; provided, the court may waive such costs in a criminal action based upon indigence of a defendant.  The Department shall not be permitted to assess fees for records produced pursuant to subsection D of this section.

H.  Nothing in Section 620.6 of Title 10 of the Oklahoma Statutes and this chapter shall be construed as:

1.  Authorizing the inspection of records or the disclosure of information contained in records relating to the provision of benefits or services funded, in whole or in part, with federal funds, except in accord with federal statutes and regulations governing the receipt or use of such funds;

2.  Authorizing the disclosure of papers, records, books or other information relating to the adoption of a child required to be kept confidential.  The disclosure of such information shall be governed by the provisions of the Oklahoma Adoption Code;

3.  Abrogating any privilege, including the attorney-client privilege, or affecting any limitation on such privilege found in any other statutes;

4.  Limiting or otherwise affecting access of parties to a deprived proceeding to records filed with or submitted to the court;

5.  Limiting or otherwise affecting access of agencies to information subject to disclosure, review, or inspection by contract or as a condition for the receipt of public funds or participation in any program administered by the agency;

6.  Prohibiting the Department of Human Services from summarizing the outcome of an investigation to the person who reported a known or suspected instance of child abuse or neglect or to any person providing services to a child who is or is alleged to be a victim of child abuse;

7.  Authorizing the disclosure of information which identifies any person who has reported an allegation of known or suspected child abuse or neglect unless such disclosure is specifically ordered by the court;

8.  Authorizing the disclosure of a recording or a transcription of a hotline referral which identifies any person who has reported an allegation of known or suspected child abuse or neglect, unless the disclosure is specifically ordered by the court;

9.  Prohibiting the Department of Human Services from providing a summary of allegations and findings of an investigation involving a child care facility that does not disclose identities but that permits parents to evaluate the facility;

9. 10.  Prohibiting the disclosure of confidential information to any educational institution, facility, or educator to the extent necessary to enable the educator to better provide educational services and activities for a child and provide for the safety of students;

10. 11.  Prohibiting the Department from obtaining, without a court order, nondirectory education records pertaining to a child in the legal custody of the Department; or

11. 12.  Prohibiting the Department from providing records to a federally recognized Indian tribe for any individual who has applied for foster care placement, adoptive placement, or guardianship placement through the tribe; provided, that the tribe shall be required to maintain the confidentiality of the records.

SECTION 3.  This act shall become effective November 1, 2013.

Passed the Senate the 22nd day of May, 2013.

	
	Presiding Officer of the Senate

Passed the House of Representatives the 24th day of May, 2013.

	
	Presiding Officer of the House
	of Representatives

OFFICE OF THE GOVERNOR
Received by the Office of the Governor this ____________________ day of ___________________, 20_______, at _______ o'clock _______ M.
By: _________________________________
Approved by the Governor of the State of Oklahoma this _________ day of ___________________, 20_______, at _______ o'clock _______ M.

	_________________________________
	Governor of the State of Oklahoma

OFFICE OF THE SECRETARY OF STATE
Received by the Office of the Secretary of State this __________ day of __________________, 20 _______, at _______ o'clock _______ M.
By: _________________________________