BILL REQ. #:  S-3929.2 

Read first time 01/18/10.   Referred to Committee on Human Services & Corrections.

     AN ACT Relating to restricting access to juvenile offender records; and amending RCW 13.04.240, 13.50.050, 13.50.010, 13.04.011, and 13.40.127.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 13.04.240 and 1961 c 302 s 16 are each amended to read as follows:
     An order of court adjudging a child ((delinquent)) a juvenile offender or dependent under the provisions of this chapter shall in no case be deemed a conviction of crime.

Sec. 2   RCW 13.50.050 and 2008 c 221 s 1 are each amended to read as follows:
     (1) This section governs records relating to the commission of juvenile offenses, including records relating to diversions.
     (2) The official juvenile court file of any alleged or proven juvenile offender shall be open to public inspection, unless ((sealed)) restricted pursuant to subsection (12) of this section.
     (3) All records other than the official juvenile court file are confidential and may be released only as provided in this section, RCW 13.50.010, 13.40.215, and 4.24.550.
     (4) Except as otherwise provided in this section and RCW 13.50.010, records retained or produced by any juvenile justice or care agency may be released to other participants in the juvenile justice or care system only when an investigation or case involving the juvenile in question is being pursued by the other participant or when that other participant is assigned the responsibility for supervising the juvenile.
     (5) Except as provided in RCW 4.24.550, information not in an official juvenile court file concerning a juvenile or a juvenile's family may be released to the public only when that information could not reasonably be expected to identify the juvenile or the juvenile's family.
     (6) Notwithstanding any other provision of this chapter, the release, to the juvenile or his or her attorney, of law enforcement and prosecuting attorneys' records pertaining to investigation, diversion, and prosecution of juvenile offenses shall be governed by the rules of discovery and other rules of law applicable in adult criminal investigations and prosecutions.
     (7) Upon the decision to arrest or the arrest, law enforcement and prosecuting attorneys may cooperate with schools in releasing information to a school pertaining to the investigation, diversion, and prosecution of a juvenile attending the school. Upon the decision to arrest or the arrest, incident reports may be released unless releasing the records would jeopardize the investigation or prosecution or endanger witnesses. If release of incident reports would jeopardize the investigation or prosecution or endanger witnesses, law enforcement and prosecuting attorneys may release information to the maximum extent possible to assist schools in protecting other students, staff, and school property.
     (8) The juvenile court and the prosecutor may set up and maintain a central record-keeping system which may receive information on all alleged juvenile offenders against whom a complaint has been filed pursuant to RCW 13.40.070 whether or not their cases are currently pending before the court. The central record-keeping system may be computerized. If a complaint has been referred to a diversion unit, the diversion unit shall promptly report to the juvenile court or the prosecuting attorney when the juvenile has agreed to diversion. An offense shall not be reported as criminal history in any central record-keeping system without notification by the diversion unit of the date on which the offender agreed to diversion.
     (9) Upon request of the victim of a crime or the victim's immediate family, the identity of an alleged or proven juvenile offender alleged or found to have committed a crime against the victim and the identity of the alleged or proven juvenile offender's parent, guardian, or custodian and the circumstance of the alleged or proven crime shall be released to the victim of the crime or the victim's immediate family.
     (10) Subject to the rules of discovery applicable in adult criminal prosecutions, the juvenile offense records of an adult criminal defendant or witness in an adult criminal proceeding shall be released upon request to prosecution and defense counsel after a charge has actually been filed. The juvenile offense records of any adult convicted of a crime and placed under the supervision of the adult corrections system shall be released upon request to the adult corrections system.
     (11) In any case in which an information has been filed pursuant to RCW 13.40.100 or a complaint has been filed with the prosecutor and referred for diversion pursuant to RCW 13.40.070, the person the subject of the information or complaint may file a motion with the court to have the court vacate its order and findings, if any, and, subject to subsection (23) of this section, order ((the sealing of)) that access to the official juvenile court file, the social file, and records of the court and of any other agency in the case be restricted.
     (12)(a) The court shall not grant any motion to ((seal)) restrict access to records for class A offenses made pursuant to subsection (11) of this section that is filed on or after July 1, 1997, unless ((it finds that)):
     (((a) For class B offenses other than sex offenses,)) (i) Since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent five consecutive years in the community without committing any offense or crime that subsequently results in an adjudication or conviction((. For class C offenses other than sex offenses, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction. For gross misdemeanors and misdemeanors, since the last date of release from confinement, including full-time residential treatment, if any, or entry of disposition, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction. For diversions, since completion of the diversion agreement, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction or diversion));
     (((b))) (ii) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense;
     (((c))) (iii) No proceeding is pending seeking the formation of a diversion agreement with that person;
     (((d))) (iv) The person has not been convicted of a ((class A or)) sex offense; and
     (((e))) (v) Full restitution has been paid.
     (b)(i) Access to records of class B, C, gross misdemeanor and misdemeanor offenses, and diversions, other than for sex offenses, shall be automatically restricted no later than thirty days after the juvenile's eighteenth birthday as long as the juvenile does not have charges pending at that time and has completed all requirements of his or her juvenile sentence, including restitution. The requirement to restrict access to records under this subsection is not dependent on a court hearing or the issuance of a court order to restrict access to records.
     (ii) Access to the records of a juvenile who has already reached his or her eighteenth birthday before the effective date of this section shall be automatically restricted as long as the subject of the records has no charges currently pending, is not currently serving a juvenile or adult sentence, and has had no convictions since his or her eighteenth birthday. Any person seeking to restrict access under this subsection who does not meet these requirements may nevertheless make a motion to restrict access to records. The court shall grant the order restricting access to records if, since the last date of release from confinement, including full time residential treatment, if any, or entry of disposition, the person has spent two consecutive years in the community without committing any offense or crime that subsequently results in conviction and: (A) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense; (B) no proceeding is pending seeking the formation of a diversion agreement with that person; (C) the person has not been convicted of a sex offense; and (D) full restitution has been paid.
     (13) The person making a motion pursuant to subsection (11) of this section shall give reasonable notice of the motion to the prosecution and to any person or agency whose files are sought to be ((sealed)) restricted.
     (14) If the court grants the motion to ((seal)) restrict access to records made pursuant to subsection (11) of this section, it shall, subject to subsection (23) of this section, order ((sealed)) access be restricted to the official juvenile court file, the social file, and other records relating to the case as are named in the order. Thereafter, the proceedings in the case shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events, records of which are ((sealed)) restricted. Any agency shall reply to any inquiry concerning confidential or ((sealed)) restricted records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
     (15) Inspection of the files and records included in the order to ((seal)) restrict may thereafter be permitted only by order of the court upon motion made by the person who is the subject of the information or complaint, except as otherwise provided in RCW 13.50.010(8) and subsection (23) of this section.
     (16) Any adjudication of a juvenile offense or a crime subsequent to ((sealing)) restricting has the effect of nullifying the ((sealing)) restricting order. Any charging of an adult felony subsequent to the ((sealing)) restricting has the effect of nullifying the ((sealing)) restricting order for the purposes of chapter 9.94A RCW. The administrative office of the courts shall ensure that the superior court judicial information system provides prosecutors access to information on the existence of ((sealed)) restricted juvenile records.
     (17)(a)(i) Subject to subsection (23) of this section, all records maintained by any court or law enforcement agency, including the juvenile court, local law enforcement, the Washington state patrol, and the prosecutor's office, shall be automatically destroyed within ninety days of becoming eligible for destruction. Juvenile records are eligible for destruction when:
     (A) The person who is the subject of the information or complaint is at least eighteen years of age;
     (B) His or her criminal history consists entirely of one diversion agreement or counsel and release entered on or after June 12, 2008;
     (C) Two years have elapsed since completion of the agreement or counsel and release;
     (D) No proceeding is pending against the person seeking the conviction of a criminal offense; and
     (E) There is no restitution owing in the case.
     (ii) No less than quarterly, the administrative office of the courts shall provide a report to the juvenile courts of those individuals whose records may be eligible for destruction. The juvenile court shall verify eligibility and notify the Washington state patrol and the appropriate local law enforcement agency and prosecutor's office of the records to be destroyed. The requirement to destroy records under this subsection is not dependent on a court hearing or the issuance of a court order to destroy records.
     (iii) The state and local governments and their officers and employees are not liable for civil damages for the failure to destroy records pursuant to this section.
     (b) A person eighteen years of age or older whose criminal history consists entirely of one diversion agreement or counsel and release entered prior to June 12, 2008, may request that the court order the records in his or her case destroyed. The request shall be granted, subject to subsection (23) of this section, if the court finds that two years have elapsed since completion of the agreement or counsel and release.
     (c) A person twenty-three years of age or older whose criminal history consists of only referrals for diversion may request that the court order the records in those cases destroyed. The request shall be granted, subject to subsection (23) of this section, if the court finds that all diversion agreements have been successfully completed and no proceeding is pending against the person seeking the conviction of a criminal offense.
     (18) If the court grants the motion to destroy records made pursuant to subsection (17)(b) or (c) of this section, it shall, subject to subsection (23) of this section, order the official juvenile court file, the social file, and any other records named in the order to be destroyed.
     (19) The person making the motion pursuant to subsection (17)(b) or (c) of this section shall give reasonable notice of the motion to the prosecuting attorney and to any agency whose records are sought to be destroyed.
     (20) Any juvenile to whom the provisions of this section may apply shall be given written notice of his or her rights under this section at the time of his or her disposition hearing or during the diversion process.
     (21) Nothing in this section may be construed to prevent a crime victim or a member of the victim's family from divulging the identity of the alleged or proven juvenile offender or his or her family when necessary in a civil proceeding.
     (22) Any juvenile justice or care agency may, subject to the limitations in subsection (23) of this section and (a) and (b) of this subsection, develop procedures for the routine destruction of records relating to juvenile offenses and diversions.
     (a) Records may be routinely destroyed only when the person the subject of the information or complaint has attained twenty-three years of age or older or pursuant to subsection (17)(a) of this section.
     (b) The court may not routinely destroy the official juvenile court file or recordings or transcripts of any proceedings.
     (23) No identifying information held by the Washington state patrol in accordance with chapter 43.43 RCW is subject to destruction or ((sealing)) restriction under this section. For the purposes of this subsection, identifying information includes photographs, fingerprints, palmprints, soleprints, toeprints and any other data that identifies a person by physical characteristics, name, birthdate or address, but does not include information regarding criminal activity, arrest, charging, diversion, conviction or other information about a person's treatment by the criminal justice system or about the person's behavior.
     (24) Information identifying child victims under age eighteen who are victims of sexual assaults by juvenile offenders is confidential and not subject to release to the press or public without the permission of the child victim or the child's legal guardian. Identifying information includes the child victim's name, addresses, location, photographs, and in cases in which the child victim is a relative of the alleged perpetrator, identification of the relationship between the child and the alleged perpetrator. Information identifying a child victim of sexual assault may be released to law enforcement, prosecutors, judges, defense attorneys, or private or governmental agencies that provide services to the child victim of sexual assault.
     (25) No juvenile offense records maintained by any court, law enforcement agency or state agency, including the juvenile court, local law enforcement, the Washington state patrol, and the prosecutor's office may be sold or distributed to any private data base company.

Sec. 3   RCW 13.50.010 and 2009 c 440 s 1 are each amended to read as follows:
     (1) For purposes of this chapter:
     (a) "Juvenile justice or care agency" means any of the following: Police, diversion units, court, prosecuting attorney, defense attorney, detention center, attorney general, the legislative children's oversight committee, the office of the family and children's ombudsman, the department of social and health services 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;
     (b) "Official juvenile court file" means the legal file of the juvenile court containing the petition or information, motions, memorandums, briefs, findings of the court, and court orders;
     (c) "Records" means the official juvenile court file, the social file, and records of any other juvenile justice or care agency in the case;
     (d) "Restricted," "restricting," or "access restricting" means that, except as otherwise provided in this chapter, no person or entity may obtain the records of a juvenile offender;
     (e) "Social file" means the juvenile court file containing the records and reports of the probation counselor.
     (2) Each petition or information filed with the court may include only one juvenile and each petition or information shall be filed under a separate docket number. The social file shall be filed separately from the official juvenile court file.
     (3) It is the duty of any juvenile justice or care agency to maintain accurate records. To this end:
     (a) The agency may never knowingly record inaccurate information. Any information in records maintained by the department of social and health services relating to a petition filed pursuant to chapter 13.34 RCW that is found by the court to be false or inaccurate shall be corrected or expunged from such records by the agency;
     (b) An agency shall take reasonable steps to assure the security of its records and prevent tampering with them; and
     (c) An agency shall make reasonable efforts to insure the completeness of its records, including action taken by other agencies with respect to matters in its files.
     (4) Each juvenile justice or care agency shall implement procedures consistent with the provisions of this chapter to facilitate inquiries concerning records.
     (5) Any person who has reasonable cause to believe information concerning that person is included in the records of a juvenile justice or care agency and who has been denied access to those records by the agency may make a motion to the court for an order authorizing that person to inspect the juvenile justice or care agency record concerning that person. The court shall grant the motion to examine records unless it finds that in the interests of justice or in the best interests of the juvenile the records or parts of them should remain confidential.
     (6) A juvenile, or his or her parents, or any person who has reasonable cause to believe information concerning that person is included in the records of a juvenile justice or care agency may make a motion to the court challenging the accuracy of any information concerning the moving party in the record or challenging the continued possession of the record by the agency. If the court grants the motion, it shall order the record or information to be corrected or destroyed.
     (7) The person making a motion under subsection (5) or (6) of this section shall give reasonable notice of the motion to all parties to the original action and to any agency whose records will be affected by the motion.
     (8) 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. The court may also permit inspection by or release to individuals or agencies, including juvenile justice advisory committees of county law and justice councils, engaged in legitimate research for educational, scientific, or public purposes. ((The court may also permit inspection of, or release of information from, records which have been sealed pursuant to RCW 13.50.050(12).)) The court shall release to the sentencing guidelines commission records needed for its research and data-gathering functions under RCW 9.94A.850 and other statutes. Access to records or information for research purposes shall be permitted only if the anonymity of all persons mentioned in the records or information will be preserved. Each person granted permission to inspect juvenile justice or care agency records for research purposes shall present a notarized statement to the court stating that the names of juveniles and parents will remain confidential.
     (9) Juvenile detention facilities shall release records to the sentencing guidelines commission under RCW 9.94A.850 upon request. The commission shall not disclose the names of any juveniles or parents mentioned in the records without the named individual's written permission.
     (10) Requirements in this chapter relating to the court's authority to compel disclosure shall not apply to the legislative children's oversight committee or the office of the family and children's ombudsman.
     (11) For the purpose of research only, the administrative office of the courts shall maintain an electronic research copy of all records in the judicial information system related to juveniles. Access to the research copy is restricted to the Washington state center for court research. The Washington state center for court research shall maintain the confidentiality of all confidential records and shall preserve the anonymity of all persons identified in the research copy. The research copy may not be subject to any records retention schedule and must include records destroyed or removed from the judicial information system pursuant to RCW 13.50.050 (17) and (18) and 13.50.100(3).
     (12) The court shall release to the Washington state office of public defense records needed to implement the agency's oversight, technical assistance, and other functions as required by RCW 2.70.020. Access to the records used as a basis for oversight, technical assistance, or other agency functions is restricted to the Washington state office of public defense. The Washington state office of public defense shall maintain the confidentiality of all confidential information included in the records.

Sec. 4   RCW 13.04.011 and 1997 c 338 s 6 are each amended to read as follows:
     For purposes of this title:
     (1) "Adjudication" has the same meaning as "conviction" in RCW 9.94A.030, ((and the terms must be construed identically and used interchangeably)) but only for the purposes of sentencing under chapter 9.94A RCW;
     (2) Except as specifically provided in RCW 13.40.020 and chapter 13.24 RCW, "juvenile," "youth," and "child" mean any individual who is under the chronological age of eighteen years;
     (3) "Juvenile offender" and "juvenile offense" have the meaning ascribed in RCW 13.40.020;
     (4) "Court" when used without further qualification means the juvenile court judge(s) or commissioner(s);
     (5) "Parent" or "parents," except as used in chapter 13.34 RCW, means that parent or parents who have the right of legal custody of the child. "Parent" or "parents" as used in chapter 13.34 RCW, means the biological or adoptive parents of a child unless the legal rights of that person have been terminated by judicial proceedings;
     (6) "Custodian" means that person who has the legal right to custody of the child.

Sec. 5   RCW 13.40.127 and 2009 c 236 s 1 are each amended to read as follows:
     (1) A juvenile is eligible for deferred disposition unless he or she:
     (a) Is charged with a sex or violent offense;
     (b) Has a criminal history which includes any felony;
     (c) Has a prior deferred disposition or deferred adjudication; or
     (d) Has two or more adjudications.
     (2) The juvenile court may, upon motion at least fourteen days before commencement of trial and, after consulting the juvenile's custodial parent or parents or guardian and with the consent of the juvenile, continue the case for disposition for a period not to exceed one year from the date the juvenile is found guilty. The court shall consider whether the offender and the community will benefit from a deferred disposition before deferring the disposition.
     (3) Any juvenile who agrees to a deferral of disposition shall:
     (a) Stipulate to the admissibility of the facts contained in the written police report;
     (b) Acknowledge that the report will be entered and used to support a finding of guilt and to impose a disposition if the juvenile fails to comply with terms of supervision; and
     (c) Waive the following rights to: (i) A speedy disposition; and (ii) call and confront witnesses.
     The adjudicatory hearing shall be limited to a reading of the court's record.
     (4) Following the stipulation, acknowledgment, waiver, and entry of a finding or plea of guilt, the court shall defer entry of an order of disposition of the juvenile.
     (5) Any juvenile granted a deferral of disposition under this section shall be placed under community supervision. The court may impose any conditions of supervision that it deems appropriate including posting a probation bond. Payment of restitution under RCW 13.40.190 shall be a condition of community supervision under this section.
     The court may require a juvenile offender convicted of animal cruelty in the first degree to submit to a mental health evaluation to determine if the offender would benefit from treatment and such intervention would promote the safety of the community. After consideration of the results of the evaluation, as a condition of community supervision, the court may order the offender to attend treatment to address issues pertinent to the offense.
     (6) A parent who signed for a probation bond has the right to notify the counselor if the juvenile fails to comply with the bond or conditions of supervision. The counselor shall notify the court and surety of any failure to comply. A surety shall notify the court of the juvenile's failure to comply with the probation bond. The state shall bear the burden to prove, by a preponderance of the evidence, that the juvenile has failed to comply with the terms of community supervision.
     (7) A juvenile's lack of compliance shall be determined by the judge upon written motion by the prosecutor or the juvenile's juvenile court community supervision counselor. If a juvenile fails to comply with terms of supervision, the court shall enter an order of disposition.
     (8) At any time following deferral of disposition the court may, following a hearing, continue the case for an additional one-year period for good cause.
     (9) At the conclusion of the period set forth in the order of deferral and upon a finding by the court of full compliance with conditions of supervision and payment of full restitution, the respondent's conviction shall be vacated and the court shall dismiss the case with prejudice, except that a conviction under RCW 16.52.205 shall not be vacated.
     (10)(a) The access to records of deferred disposition cases vacated under subsection (9) of this section shall be ((sealed)) restricted no later than thirty days after the juvenile's eighteenth birthday provided that the juvenile does not have any charges pending at that time. If a juvenile has already reached his or her eighteenth birthday before July 26, 2009, and does not have any charges pending, he or she may request that the court issue an order ((sealing)) restricting access to the records of his or her deferred disposition cases vacated under subsection (9) of this section, and this request shall be granted. Nothing in this subsection shall preclude a juvenile from petitioning the court to have the records of his or her deferred dispositions ((sealed)) restricted under RCW 13.50.050 (11) and (12).
     (b) Records ((sealed)) restricted under this ((provision shall)) subsection have the same legal status as records ((sealed)) restricted under RCW 13.50.050.