Written in 2009 by Timothy M. Jaasko-Fisher1,2

Chapter Sections

Introduction

RCW 13.50 governs the maintenance and release of a number of records including the official juvenile court file, the social file, and records of juvenile justice and care agencies (JJCAs).3

§1 Accuracy of Records

JJCAs, such as the Department of Social and Health Services (DSHS) and law enforcement, have a statutory duty to maintain accurate records. Agencies must take reasonable steps to secure records and to ensure their completeness, including actions taken by other agencies with respect to matters in the file. In particular, in cases where DSHS has filed a petition pursuant to RCW 13.34, DSHS is specifically directed by statute to “correct or expunge” any information in its records found by a court to be false or inaccurate.

Any person who has reasonable cause to believe that inaccurate information concerning that person has been included in JJCA records may make a motion to the court to have the information corrected or destroyed. The statute does not specify in what action the motion should be brought, nor does it provide any further guidance as to what standards the court should apply in these cases or who has the burden of proof. Presumably, the agency must provide the court with its rationale for including the information in the record at which point the court must decide whether the information is accurate applying a preponderance of the evidence standard as in any civil case.

§2 Release of Records

Additionally, these records are confidential and may be released only pursuant to RCW 13.50.010 and RCW 13.50.100.4

§2a Release to Person Identified in the Records

Any person who has reasonable cause to believe information concerning them is included in the records of a JJCA and who has been denied access to those records by the agency may make a motion to the court for an order authorizing access.5 Reasonable notice of the motion must be served upon all parties to the “original action”6 and to the agency whose records will be affected by the motion.5

The statute does not address in what type of underlying action such a motion should be brought.

The court shall grant the motion to examine the records unless it finds that in the interest of justice or in the best interest of the juvenile the records or parts thereof should remain confidential.5

Although RCW 13.50.100 declares that all information covered by the statute is confidential and releasable only pursuant to that statute, an adult who is the subject of such records is not precluded from obtaining and disseminating his or her own medical or health records contained as part of the file.7 It appears that the court may, however, impose reasonable limitations on the dissemination of records pertaining to juveniles under its jurisdiction so long as it applies the least restrictive means available to achieve the goal of protecting the child.7

§2b Release to a Juvenile, Parent(s), or Attorneys

A juvenile, his or her parent, or an attorney for the juvenile or parent shall, upon request, be given access to all records and information collected or retained by a JJCA and which pertain to the juvenile with the following exceptions:8

  1. The agency need not release information it determines is likely to cause severe psychological or physical harm to the juvenile or his or her parents absent a court order directing release.9 If a court determines that limited release of the information is appropriate, the court may specify terms and conditions for the release.9
  2. If (1) the records pertain to the provision of counseling, psychological, psychiatric or medical services to the juvenile; (2) the services were voluntarily sought by the juvenile; and (3) the juvenile has a legal right to receive those services without the consent of any other person or agency, then the information may not be disclosed without the juvenile’s informed consent. 10

The name and identifying information of any person or organization who has reported child abuse or neglect may be redacted.11 Redacting “identifying information” is contextual in nature, and should meet the primary goal of maintaining the anonymity of the referent. This protection may be extended even after dependency proceedings are initiated. For example in In re H.W, 70 Wn. App. 552, 854 P.2d 1100 (1993), the court held that DSHS was not required to release the names or identifying information of informants in a police report at the shelter care hearing. Stating that “disclosure of sensitive information at this early stage of the proceeding would likely have the unwanted effect of discouraging individuals from reporting,” the court ruled that the parent’s due process rights were not violated by the redaction. The court did, however, note that once DSHS “has had an opportunity to conduct an independent investigation … there should be less reason to withhold the information “and the father “would be entitled to additional due process protections.”12

A juvenile or parent denied access to records under RCW 13.50.100(7) may file a motion in juvenile court seeking access to the records.13 A person making such motion must give reasonable notice to all parties and to any agency whose records would be affected by the motion.14 The court must grant the motion for access to the records unless it finds access may not be permitted pursuant to RCW 13.50.100(7)(a) or (b).13

§2c Release to Guardian ad Litem

Except for information exempt from disclosure under RCW 13.350.100(7), the guardian ad litem in a dependency case is permitted access to all information available to the state or supervising agency on the case. In addition, the guardian ad litem may inspect and copy any records pertaining to the child or children involved in a case maintained by any agency, school organization, division or department of the state, doctor, nurse, or other health care provider, psychologist, psychiatrist, police department, or mental health clinic without the consent of the parent, guardian, or child if the child is under age 13, unless such access is specifically prohibited by law.15 This information may only be subsequently released pursuant to RCW 13.50.100.16

§2d Release to Clinic, Hospital, or Agency that has the Subject Person under Care or Treatment

The court may permit inspection of records by or release of information to, any clinic, hospital, or agency which has the subject person under care or treatment. For children who are the subject of dependency proceedings, DSHS must release all records relevant to the child’s treatment to the child’s treating physician upon request when the child is not old enough to consent to treatment, lacks capacity to consent, or is being involuntarily treated under RCW 13.34.320.17

§2e Release to Other Juvenile Justice or Care Agencies

Records retained or produced by JJCAs may be released to other JJCAs if one of two conditions is met:

  • The agency receiving the records is pursuing a case or investigation involving the juvenile; or
  • The agency receiving the records has the responsibility of supervising the juvenile.18

If a JJCA meets one of the above requirements for sharing information, the scope of the information to be shared may include sensitive material such as sexually aggressive youth evaluations, other evaluations, and treatment information.19 However, it is important to note that disclosure under this section is permissive rather than required and is at the discretion of the agency maintaining the record.19

§2f Release for Legitimate Research for Educational, Scientific, or Public Purposes

The court may permit inspection by or release to individuals or agencies engaged in legitimate research for educational, scientific, or public purposes. This statute permits release for purposes of newspaper journalism under certain limited circumstances.20

The researcher seeking release of the records has the burden to show that the research qualifies under the statute.21 Such a showing should include a “detailed description of the proposed statement of the information required and the purpose for which the project requires the information” as well as a description of the methodology to be used including a detailed plan as to how the anonymity of those mentioned in the record will be maintained.22 Notice to the subjects of the records is not required.23 If the research is not conducted in the manner described in the application to the court, the court may terminate access or impose other restrictions.20

§2g Public Disclosure

JJCA records, as defined in RCW 13.50, may be accessed exclusively via the procedures set out in RCW 13.50.24 As such, the substantive provisions and remedies available under the Public Disclosure Act do not apply to requests for access to JJCA records.24

§3 Disclosure/Discovery During a Dependency Case

§3a Release under RCW 13.34

Legible copies of DSHS records to which a parent, guardian or legal custodian are entitled to under RCW 13.50 (see § 4.2 above) must be provided to the parent, guardian, or legal custodian within a reasonable time prior to the shelter care hearing at no cost.25 In addition to the automatic provision of these records prior to the shelter care hearing, a parent, guardian, or legal custodian may make a written request for such records.25 In the case of a written request, records must be provided within 15 days at no cost.25

RCW 13.34.174 specifically permits the release of substance abuse evaluations and treatment status reports to the person evaluated, their counsel, the DSHS caseworker, and the guardian ad litem in cases where the court has ordered the evaluation.26

RCW 13.50.100 provides that “subject to the rules of discovery in civil cases,” any party to a dependency or termination proceeding shall have access to the records of any natural or adoptive child of the parent, subject to the limitations of RCW 13.50.100(7). A party denied access may request judicial review, and if the party prevails, the court must award attorneys fees, costs, and an amount of not less than five and not more than 100 dollars per day the records were denied.27

§3b Release of Information Concerning Mental Health Treatment for Minors

 Although typically confidential, Washington law expressly permits the release of information pertaining to a minor’s mental health treatment in the course of a dependency proceeding.28

§3c Discovery Requests

Cases adjudicated under RCW 13.34 are civil in nature; as such, the rules of civil procedure governing discovery apply in addition to those specific rules mentioned above.

 

Download this chapter: Chapter 9 – Records and Privacy

ENDNOTES

  1. Last revised in Fall 2009.
  2. Timothy M. Jaasko-Fisher is the Assistant Director of Programming and Curriculum at Robert’s Fund, providing consultation and training focused on improving consciousness, creativity, and community to promote a more civil world.  Prior to that, Tim was the Director of the Court Improvement Training Academy (CITA) at the University of Washington, School of Law’s Child and Youth Advocacy Clinic. Prior to becoming the director of CITA in September 2007, Tim was an Assistant Attorney General for 11 years, representing the Washington State Department of Social and Health Services Children’s Administration. He conducts training on a variety of topics relating to child welfare law and litigation of child abuse and neglect cases. He has presented at the Washington State Children’s Justice Conference, the Washington State Children’s Administration Social Work Academy, and the Washington State Judicial Conference. He has trained on a wide range of topics including legal issues relating to chronic neglect, criminal records checks in child welfare, and the Interstate Compact on the Placement of Children. He was awarded his Bachelor of Arts in Government from New Mexico State University in 1993 and his Juris Doctor from Seattle University School of Law in 1996.
  3. RCW 13.50.010(1)(c). “Juvenile justice or care agency” includes police, diversion units, court, prosecuting attorney, defense attorney, detention center, attorney general, the legislative children’s oversight committee, the office of family and children’s ombudsman, the Department of Social and Health Services (DSHS) and its contracting agencies, schools, persons or public or private agencies having children committed to their custody, and any placement oversight committee created under RCW 72.05.415. Id. at (a).
  4. RCW 13.50.100(2).
  5. RCW 13.50.010(5).
  6. The statute is silent as to what “original action” is referenced here.
  7. In re T.L.G., 139 Wn. App. 1, 20, 156 P.3d 222 (2007).
  8. RCW 13.50.100(7).
  9. RCW 13.50.100(7)(a).
  10. RCW 13.50.100(7)(b).
  11. RCW 13.50.100(7)(c).
  12. In re H.W., 70 Wn. App. 552, 556–57, 854 P.2d 1100 (1993).
  13. RCW 13.50.100(8).
  14. RCW 13.50.100(9).
  15. RCW 13.34.105(3).
  16. RCW 13.34.105(5).
  17. RCW 13.34.340.
  18. RCW 13.50.100(3).
  19. In re Q.L.M., 105 Wn. App. 532, 541, 20 P.3d 465 (2001).
  20. Seattle Times v. Benton County, 99 Wn.2d 251, 661 P.2d 964 (1983).
  21. Seattle Times v. Benton County, 99 Wn.2d 251, 258, 661 P.2d 964 (1983).
  22. Seattle Times v. Benton County, 99 Wn.2d 251, 258-§9, 661 P.2d 964 (1983).
  23. Seattle Times v. Benton County, 99 Wn.2d 251, 258-262, 661 P.2d 964 (1983).
  24. Deer v. Dep’t of Soc. & Health Serv., 122 Wn. App. 84, 94, 93P.3d 195 (2004).
  25. RCW 13.34.090(4).
  26. RCW 13.34.174.
  27. RCW 13.50.100(10).
  28. RCW 71.34.340(2).