BILL REQ. #:  S-4466.2 

READ FIRST TIME 02/03/12.   

     AN ACT Relating to access to juvenile records; amending RCW 10.97.050 and 19.182.040; reenacting and amending RCW 13.50.050; creating a new section; and providing an effective date.

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

Sec. 1   RCW 13.50.050 and 2011 c 338 s 4 and 2011 c 333 s 4 are each reenacted and amended to read as follows:
     (1) This section governs records relating to the commission of juvenile offenses, including records relating to diversions.
     (2) Except as provided in RCW 13.50.010(8), the official juvenile court file of any alleged or proven juvenile offender shall be ((open to public inspection, unless sealed pursuant to subsection (12) of this section)) confidential, unless:
     (a) The juvenile has been charged by information with a serious violent offense, as defined in RCW 9.94A.030, a sex offense as defined in RCW 9.94A.030(46)(a)(i), burglary as provided in chapter 9A.52 RCW, or any crime committed with a firearm, in which case, the official juvenile court file shall be open to the public;
     (b) The juvenile has been convicted or adjudicated for his or her third offense, in which case, the official juvenile court file shall be open to the public; or
     (c) The juvenile court has ordered that the official juvenile court file be open to public inspection, either in its entirety, or in part, as provided in subsection (6) of this section.
     (3) The court, prosecuting attorney, law enforcement, the parties and their attorneys shall have access to the confidential official juvenile court file of any alleged or proven juvenile offender.
     (4) A juvenile justice or care agency shall have access to the confidential official juvenile court file only when an investigation or case involving the juvenile in question is being pursued by the juvenile justice or care agency or when the juvenile justice or care agency is responsible for supervising the juvenile.
     (5) The official juvenile court file of any alleged or proven juvenile offender which is initially open to public inspection pursuant to subsection (2)(a) of this section is confidential if a finding of not guilty is entered, the charge is dismissed, or the charge is amended to an offense that is not a serious violent offense or neither subsection (2)(a) or (b) of this section applies. The official juvenile court file of any alleged or proven juvenile offender shall become open to public inspection if the charge is amended upward to a serious violent offense, as defined in RCW 9.94A.030 from a lesser offense that previously required it to be confidential. The official juvenile court file of any alleged or proven juvenile offender, containing multiple charges, one of which is a serious violent offense, shall be open to public inspection in its entirety.
     (6) Upon application of any interested party, after a hearing with notice to all parties, the juvenile court may order that the confidential official juvenile court file of any alleged or proven juvenile offender shall be opened to the public in part or in its entirety upon making written findings that:
     (a) The proponent of opening the court file to public inspection has made a showing that there are not identified compelling circumstances which establish a need for continued confidentiality of the juvenile court record;
     (b) Anyone present when the motion is made had an opportunity to address the motion to open the juvenile court file to public inspection;
     (c) The court has analyzed whether continued confidentiality would be the least restrictive means available and effective in protecting the interests of the juvenile which may be threatened by opening the official juvenile court file to public inspection;
     (d) The court has weighed the competing privacy interests of the juvenile and the public's right to open court records, as they apply to the specific court record; and
     (e) The order of the court is no broader in its application or duration than necessary to service its purpose.
     (7) When weighing the competing privacy interests of the juvenile and the public's right to open court records, the court shall consider, but is not limited to considering, the following factors:
     (a) The impact of the juvenile offense on any victim(s), any victim(s)'s family, and to the community;
     (b) Whether the current alleged or proven juvenile offense(s) involved multiple victims or multiple incidents per victim;
     (c) Whether the current alleged or proven juvenile offense involved attempted or actual monetary loss greater than typical for the offense;
     (d) Whether the current alleged or proven juvenile offense is a violent offense, as defined in RCW 9.94A.030;
     (e) Whether the current alleged or proven juvenile offense involved the use of a deadly weapon;
     (f) Any prior criminal history of juvenile offenses;
     (g) The age of the alleged or proven juvenile offender.
     (((3))) (8) All records ((other than)) retained or produced, which are not part of 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))) (9) 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))) (10) 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))) (11) 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))) (12) 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))) (13) The juvenile court and the prosecutor may set up and maintain a central recordkeeping 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 recordkeeping 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 recordkeeping system without notification by the diversion unit of the date on which the offender agreed to diversion.
     (((9))) (14) 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))) (15) 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))) (16) 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))) (28) of this section, order the sealing of the official juvenile court file, the social file, and records of the court and of any other agency in the case.
     (((12))) (17)(a) The court shall not grant any motion to seal records for class A offenses made pursuant to subsection (((11))) (16) of this section that is filed on or after July 1, 1997, unless:
     (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;
     (ii) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense;
     (iii) No proceeding is pending seeking the formation of a diversion agreement with that person;
     (iv) The person is no longer required to register as a sex offender under RCW 9A.44.130 or has been relieved of the duty to register under RCW 9A.44.143 if the person was convicted of a sex offense;
     (v) The person has not been convicted of rape in the first degree, rape in the second degree, or indecent liberties that was actually committed with forcible compulsion; and
     (vi) Full restitution has been paid.
     (b) The court shall not grant any motion to seal records for class B, C, gross misdemeanor and misdemeanor offenses and diversions made under subsection (((11))) (16) of this section unless:
     (i) Since the date of last release from confinement, including full-time residential treatment, if any, entry of disposition, or completion of the diversion agreement, the person has spent two consecutive years in the community without being convicted of any offense or crime;
     (ii) No proceeding is pending against the moving party seeking the conviction of a juvenile offense or a criminal offense;
     (iii) No proceeding is pending seeking the formation of a diversion agreement with that person;
     (iv) The person is no longer required to register as a sex offender under RCW 9A.44.130 or has been relieved of the duty to register under RCW 9A.44.143 if the person was convicted of a sex offense; and
     (v) Full restitution has been paid.
     (((13))) (18) The person making a motion pursuant to subsection (((11))) (16) 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.
     (((14))) (19)(a) If the court grants the motion to seal made pursuant to subsection (((11))) (16) of this section, it shall, subject to subsection (((23))) (28) of this section, order sealed 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. Any agency shall reply to any inquiry concerning confidential or sealed records that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
     (b) In the event the subject of the juvenile records receives a full and unconditional pardon, the proceedings in the matter upon which the pardon has been granted shall be treated as if they never occurred, and the subject of the records may reply accordingly to any inquiry about the events upon which the pardon was received. Any agency shall reply to any inquiry concerning the records pertaining to the events for which the subject received a pardon that records are confidential, and no information can be given about the existence or nonexistence of records concerning an individual.
     (((15))) (20) Inspection of the files and records included in the order to seal 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))) (28) of this section.
     (((16))) (21) Any adjudication of a juvenile offense or a crime subsequent to sealing has the effect of nullifying the sealing order. Any charging of an adult felony subsequent to the sealing has the effect of nullifying the sealing 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 juvenile records.
     (((17))) (22)(a)(i) Subject to subsection (((23))) (28) 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) 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 thirty days of being notified by the governor's office that the subject of those records received a full and unconditional pardon by the governor.
     (c) 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))) (28) of this section, if the court finds that two years have elapsed since completion of the agreement or counsel and release.
     (d) 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))) (28) 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))) (23) If the court grants the motion to destroy records made pursuant to subsection (((17))) (22)(c) or (d) of this section, it shall, subject to subsection (((23))) (28) of this section, order the official juvenile court file, the social file, and any other records named in the order to be destroyed.
     (((19))) (24) The person making the motion pursuant to subsection (((17))) (22)(c) or (d) 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))) (25) 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))) (26) 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))) (27) Any juvenile justice or care agency may, subject to the limitations in subsection (((23))) (28) 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))) (22)(a) of this section.
     (b) The court may not routinely destroy the official juvenile court file or recordings or transcripts of any proceedings.
     (((23))) (28) Except for subsection (((17))) (22)(b) of this section, no identifying information held by the Washington state patrol in accordance with chapter 43.43 RCW is subject to destruction or sealing 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))) (29) 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.
     (30) No confidential official juvenile court records maintained by any court, law enforcement agency, or state agency, including the juvenile court, local law enforcement, the Washington state patrol, and the county prosecutor's offices, may be published or distributed. Nothing in this section shall affect or prevent the use of a juvenile offender's prior adjudications in later juvenile offender or adult criminal proceedings.

Sec. 2   RCW 10.97.050 and 2005 c 421 s 9 are each amended to read as follows:
     (1) Adult conviction records may be disseminated without restriction.
     (2) No confidential official juvenile court records may be published or distributed.
     (3) Any criminal history record information which pertains to an incident that occurred within the last twelve months for which a person is currently being processed by the criminal justice system, including the entire period of correctional supervision extending through final discharge from parole, when applicable, may be disseminated without restriction with the exception of a record being disseminated in response to a request for a conviction record under RCW 43.43.832. A request for a conviction record under RCW 43.43.832 shall not contain information for a person who, within the last twelve months, is currently being processed by the criminal justice system unless it pertains to information relating to a crime against a person as defined in RCW 9.94A.411.
     (((3))) (4) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to another criminal justice agency for any purpose associated with the administration of criminal justice, or in connection with the employment of the subject of the record by a criminal justice or juvenile justice agency. A criminal justice agency may respond to any inquiry from another criminal justice agency without any obligation to ascertain the purpose for which the information is to be used by the agency making the inquiry.
     (((4))) (5) Criminal history record information which includes nonconviction data may be disseminated by a criminal justice agency to implement a statute, ordinance, executive order, or a court rule, decision, or order which expressly refers to records of arrest, charges, or allegations of criminal conduct or other nonconviction data and authorizes or directs that it be available or accessible for a specific purpose.
     (((5))) (6) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies pursuant to a contract with a criminal justice agency to provide services related to the administration of criminal justice. Such contract must specifically authorize access to criminal history record information, but need not specifically state that access to nonconviction data is included. The agreement must limit the use of the criminal history record information to stated purposes and insure the confidentiality and security of the information consistent with state law and any applicable federal statutes and regulations.
     (((6))) (7) Criminal history record information which includes nonconviction data may be disseminated to individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency. Such agreement must authorize the access to nonconviction data, limit the use of that information which identifies specific individuals to research, evaluative, or statistical purposes, and contain provisions giving notice to the person or organization to which the records are disseminated that the use of information obtained therefrom and further dissemination of such information are subject to the provisions of this chapter and applicable federal statutes and regulations, which shall be cited with express reference to the penalties provided for a violation thereof.
     (((7))) (8) Every criminal justice agency that maintains and disseminates criminal history record information must maintain information pertaining to every dissemination of criminal history record information except a dissemination to the effect that the agency has no record concerning an individual. Information pertaining to disseminations shall include:
     (a) An indication of to whom (agency or person) criminal history record information was disseminated;
     (b) The date on which the information was disseminated;
     (c) The individual to whom the information relates; and
     (d) A brief description of the information disseminated.
     The information pertaining to dissemination required to be maintained shall be retained for a period of not less than one year.
     (((8))) (9) In addition to the other provisions in this section allowing dissemination of criminal history record information, RCW 4.24.550 governs dissemination of information concerning offenders who commit sex offenses as defined by RCW 9.94A.030. Criminal justice agencies, their employees, and officials shall be immune from civil liability for dissemination on criminal history record information concerning sex offenders as provided in RCW 4.24.550.

Sec. 3   RCW 19.182.040 and 2011 c 333 s 2 are each amended to read as follows:
     (1) Except as authorized under subsection (2) of this section, no consumer reporting agency may make a consumer report containing any of the following items of information:
     (a) Bankruptcies that, from date of adjudication of the most recent bankruptcy, antedate the report by more than ten years;
     (b) Suits and judgments that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period;
     (c) Paid tax liens that, from date of payment, antedate the report by more than seven years;
     (d) Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years;
     (e) Records of arrest, indictment, or conviction of an adult for a crime that, from date of disposition, release, or parole, antedate the report by more than seven years; and
     (f) ((Juvenile records, as defined in RCW 13.50.010(1)(c), when the subject of the records is twenty-one years of age or older at the time of the report; and
     (g))) Any other adverse item of information that antedates the report by more than seven years.
     (2) Subsection (1)(a) through (((e) and (g))) (f) of this section is not applicable in the case of a consumer report to be used in connection with:
     (a) A credit transaction involving, or that may reasonably be expected to involve, a principal amount of fifty thousand dollars or more;
     (b) The underwriting of life insurance involving, or that may reasonably be expected to involve, a face amount of fifty thousand dollars or more; or
     (c) The employment of an individual at an annual salary that equals, or that may reasonably be expected to equal, twenty thousand dollars or more.

NEW SECTION.  Sec. 4   The provisions of section 1 of this act on April 1, 2013, shall apply prospectively and shall also apply retroactively to all existing official juvenile court files of any alleged or proven juvenile offender.
     (2) Any existing official juvenile court file containing a serious violent offense, as defined in RCW 9.94A.030, charged prior to April 1, 2013, shall, upon April 1, 2013, be public.

NEW SECTION.  Sec. 5   Sections 1 and 2 of this act take effect April 1, 2013.