CERTIFICATION OF ENROLLMENT

 

                  SUBSTITUTE SENATE BILL 6001

 

 

                   Chapter 390, Laws of 1999

 

                         (partial veto)

 

                        56th Legislature

                      1999 Regular Session

 

 

FAMILY AND CHILDREN'S OMBUDSMAN--CONFIDENTIAL INFORMATION

 

 

 

                    EFFECTIVE DATE:  7/25/99

Passed by the Senate April 22, 1999

  YEAS 44   NAYS 0

 

 

               BRAD OWEN

President of the Senate

 

Passed by the House April 14, 1999

  YEAS 95   NAYS 0

             CERTIFICATE

 

I, Tony M. Cook, Secretary of the Senate of the State of Washington, do hereby certify that the attached is  SUBSTITUTE SENATE BILL 6001 as passed by the Senate and the House of Representatives on the dates hereon set forth.

 

 

             CLYDE BALLARD

Speaker of the

      House of Representatives

            TONY M. COOK

                            Secretary

 

 

 

              FRANK CHOPP

Speaker of the

      House of Representatives

 

 

Approved May 18, 1999, with the exception of sections 1 and 6, which are vetoed.Place Style On Codes above, and Style Off Codes below.  

                                FILED          

 

 

             May 18, 1999 - 3:22 p.m.

 

 

 

              GARY LOCKE

Governor of the State of Washington

                 Secretary of State

                 State of Washington


          _______________________________________________

 

                    SUBSTITUTE SENATE BILL 6001

          _______________________________________________

 

                      AS AMENDED BY THE HOUSE

 

             Passed Legislature - 1999 Regular Session

 

State of Washington      56th Legislature     1999 Regular Session

 

By Senate Committee on Human Services & Corrections (originally sponsored by Senators Hargrove, Long, Winsley and Rasmussen)

 

Read first time 03/03/99.

Providing for the disclosure of information to the office of the family and children's ombudsman.  


    AN ACT Relating to the office of the family and children's ombudsman; amending RCW 43.06A.030, 13.34.105, and 13.50.100; adding a new section to chapter 26.12 RCW; adding new sections to chapter 43.06A RCW; and adding a new section to chapter 13.50 RCW.

 

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

 

    *Sec. 1.  RCW 43.06A.030 and 1996 c 131 s 4 are each amended to read as follows:

    The ombudsman shall perform the following duties:

    (1) Provide information as appropriate on the rights and responsibilities of individuals receiving family and children's services, and on the procedures for providing these services;

    (2) Investigate, upon his or her own initiative or upon receipt of a complaint, an administrative act alleged to be contrary to law, rule, or policy, imposed without an adequate statement of reason, or based on irrelevant, immaterial, or erroneous grounds; however, the ombudsman may decline to investigate any complaint as provided by rules adopted under this chapter;

    (3) Monitor the procedures as established, implemented, and practiced by the department to carry out its responsibilities in delivering family and children's services with a view toward appropriate preservation of families and ensuring children's health and safety;

    (4) ((Review periodically the facilities and procedures of state institutions serving children, and state-licensed facilities or residences;

    (5))) Recommend changes in the procedures for addressing the needs of families and children;

    (((6))) (5) Submit annually to the committee and to the governor by November 1 a report analyzing the work of the office including recommendations;

    (6)(a)(i) Receive information from a legislator who is assisting a constituent at the constituent's request; (ii) provide information to a legislator regarding a constituent if the constituent has given his or her written consent that the information be released to the legislator; however, a legislator may be provided only that information the constituent would otherwise be able to obtain under the law; and (iii) notify the legislator that the constituent's case is ready to be closed.

    (b) Any information a constituent would not otherwise be able to  obtain under law, including any confidential information regarding a person other than the constituent, that is contained in the information provided the legislator shall be redacted.

    (c) A legislator shall maintain the confidentiality of any confidential information regarding a constituent that the legislator may receive.

    (d) Nothing in this subsection is intended to or may be interpreted as affecting the authority or ability of the legislative children's oversight committee to obtain information otherwise granted the committee under law.

    (7) Grant the committee access to all relevant records in the possession of the ombudsman unless prohibited by law; and

    (8) Adopt rules necessary to implement this chapter.

*Sec. 1 was vetoed.  See message at end of chapter.

 

    Sec. 2.  RCW 13.34.105 and 1993 c 241 s 3 are each amended to read as follows:

    (1) Unless otherwise directed by the court, the duties of the guardian ad litem include but are not limited to the following:

    (a) To represent and be an advocate for the best interests of the child;

    (b) To collect relevant information about the child's situation;

    (c) To monitor all court orders for compliance and to bring to the court's attention any change in circumstances that may require a modification of the court's order; and

    (d) To report to the court information on the legal status of a child's membership in any Indian tribe or band.

    (2) The guardian ad litem shall be deemed an officer of the court for the purpose of immunity from civil liability.

    (3) Except for information or records specified in RCW 13.50.100(((4))) (5), the guardian ad litem shall have access to all information available to the state or agency on the case.  Upon presentation of the order of appointment by the guardian ad litem, any agency, hospital, school organization, division or department of the state, doctor, nurse, or other health care provider, psychologist, psychiatrist, police department, or mental health clinic shall permit the guardian ad litem to inspect and copy any records relating to the child or children involved in the case, without the consent of the parent or guardian of the child, or of the child if the child is under the age of thirteen years, unless such access is otherwise specifically prohibited by law.

    (4) A guardian ad litem may release confidential information, records, and reports to the office of the family and children's ombudsman for the purposes of carrying out its duties under chapter 43.06A RCW.

    (5) The guardian ad litem shall release case information in accordance with the provisions of RCW 13.50.100.

 

    Sec. 3.  RCW 13.50.100 and 1997 c 386 s 22 are each amended to read as follows:

    (1) This section governs records not covered by RCW 13.50.050.

    (2) Records covered by this section shall be confidential and shall be released only pursuant to this section and RCW 13.50.010.

    (3) 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 of supervising the juvenile.  Records covered under this section and maintained by the juvenile courts which relate to the official actions of the agency may be entered in the state-wide juvenile court information system.

    (4) A contracting agency or service provider of the department of social and health services that provides counseling, psychological, psychiatric, or medical services may release to the office of the family and children's ombudsman information or records relating to services provided to a juvenile who is dependent under chapter 13.34 RCW without the consent of the parent or guardian of the juvenile, or of the juvenile if the juvenile is under the age of thirteen years, unless such release is otherwise specifically prohibited by law.

    (5) A juvenile, his or her parents, the juvenile's attorney and the juvenile's parent's attorney, shall, upon request, be given access to all records and information collected or retained by a juvenile justice or care agency which pertain to the juvenile except:

    (a) If it is determined by the agency that release of this information is likely to cause severe psychological or physical harm to the juvenile or his or her parents the agency may withhold the information subject to other order of the court:  PROVIDED, That if the court determines that limited release of the information is appropriate, the court may specify terms and conditions for the release of the information; or

    (b) If the information or record has been obtained by a juvenile justice or care agency in connection with the provision of counseling, psychological, psychiatric, or medical services to the juvenile, when the services have been sought voluntarily by the juvenile, and the juvenile has a legal right to receive those services without the consent of any person or agency, then the information or record may not be disclosed to the juvenile's parents without the informed consent of the juvenile unless otherwise authorized by law; or

    (c) That the department of social and health services may delete the name and identifying information regarding persons or organizations who have reported alleged child abuse or neglect.

    (((5))) (6) A juvenile or his or her parent denied access to any records following an agency determination under subsection (((4))) (5) of this section may file a motion in juvenile court requesting access to the records.  The court shall grant the motion unless it finds access may not be permitted according to the standards found in subsections (((4))) (5)(a) and (b) of this section.

    (((6))) (7) The person making a motion under subsection (((5))) (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.

    (((7))) (8) Subject to the rules of discovery in civil cases, any party to a proceeding seeking a declaration of dependency or a termination of the parent-child relationship and any party's counsel and the guardian ad litem of any party, shall have access to the records of any natural or adoptive child of the parent, subject to the limitations in subsection (((4))) (5) of this section.  A party denied access to records may request judicial review of the denial.  If the party prevails, he or she shall be awarded attorneys' fees, costs, and an amount not less than five dollars and not more than one hundred dollars for each day the records were wrongfully denied.

 

    NEW SECTION.  Sec. 4.  A new section is added to chapter 26.12 RCW to read as follows:

    A guardian ad litem appointed under this chapter may release confidential information, records, and reports to the office of the family and children's ombudsman for the purposes of carrying out its duties under chapter 43.06A RCW.

 

    NEW SECTION.  Sec. 5.  A new section is added to chapter 43.06A RCW to read as follows:

    The department of social and health services shall:

    (1) Allow the ombudsman or the ombudsman's designee to communicate privately with any child in the custody of the department for the purposes of carrying out its duties under this chapter;

    (2) Permit the ombudsman or the ombudsman's designee physical access to state institutions serving children, and state licensed facilities or residences for the purpose of carrying out its duties under this chapter;

    (3) Upon the ombudsman's request, grant the ombudsman or the ombudsman's designee the right to access, inspect, and copy all relevant information, records, or documents in the possession or control of the department that the ombudsman considers necessary in an investigation; and

    (4) Grant the office of the family and children's ombudsman unrestricted on-line access to the case and management information system (CAMIS) for the purpose of carrying out its duties under this chapter.

 

    *NEW SECTION.  Sec. 6.  A new section is added to chapter 43.06A RCW to read as follows:

    With the approval of the legislative oversight committee, the office of the family and children's ombudsman shall have the right to apply for and accept grants.  After notification to the legislative oversight committee, the office of the family and children's ombudsman shall have the power to subpoena records and documents in the possession or control of the department of social and health services that the ombudsman considers necessary in an investigation.

*Sec. 6 was vetoed.  See message at end of chapter.

 

    NEW SECTION.  Sec. 7.  A new section is added to chapter 43.06A RCW to read as follows:

    (1) An employee of the office of the family and children's ombudsman is not liable for good faith performance of responsibilities under this chapter.

    (2) No discriminatory, disciplinary, or retaliatory action may be taken against an employee of the department, an employee of a contracting agency of the department, a foster parent, or a recipient of family and children's services for any communication made, or information given or disclosed, to aid the office of the family and children's ombudsman in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith.  This subsection is not intended to infringe on the rights of the employer to supervise, discipline, or terminate an employee for other reasons.

    (3) All communications by an ombudsman, if reasonably related to the requirements of that individual's responsibilities under this chapter and done in good faith, are privileged under RCW 9.58.070 and that privilege shall serve as a defense in any action in libel or slander.

 

    NEW SECTION.  Sec. 8.  A new section is added to chapter 13.50 RCW to read as follows:

    Any communication or advice privileged under RCW 5.60.060 that is disclosed by the office of the attorney general or the department of social and health services to the office of the family and children's ombudsman may not be deemed to be a waiver of the privilege as to others.


    Passed the Senate April 22, 1999.

    Passed the House April 14, 1999.

Approved by the Governor May 18, 1999, with the exception of certain items that were vetoed.

    Filed in Office of Secretary of State May 18, 1999.


 

    Note:  Governor's explanation of partial veto is as follows:

 

    "I am returning herewith, without my approval as to sections 1 and 6, Substitute Senate Bill No. 6001 entitled:

 

"AN ACT Relating to the office of family and children's ombudsman;"

 

    Substitute Senate Bill No. 6001 expands the scope of information available to the Family and Children's Ombudsman.  Among other things, it permits guardians ad litem and service providers to give confidential information to the Ombudsman, and requires the Department of Social and Health Services (DSHS) to provide access to institutions and information.  It also prohibits retaliatory action against employees of DSHS and others who properly provide information. 

 

    Section 1 of SSB 6001 includes a requirement that the Ombudsman provide information to a legislator regarding a constituent, if the constituent has given his or her consent to release the information and if the constituent would otherwise be able to obtain the information under law.  This provision is apparently intended to require the Ombudsman to provide legislators with DSHS records in the Ombudsman's possession.  The provision is unnecessary since, with the above conditions present, legislators are currently able to obtain records directly from DSHS.

 

    Section 6 of SSB 6001 would give the Ombudsman the power to subpoena all records and documents in the possession or control of DSHS that the Ombudsman considers necessary in an investigation.  Similarly, section 5 of the bill grants the Ombudsman access to all relevant information, records, or documents in the possession or control of DSHS that the Ombudsman considers necessary in an investigation.  I am concerned about expanding the subpoena power in the absence of a compelling need.  Since the Ombudsman will have statutory access to all necessary records, there is no compelling need.  Additionally, there has never been an instance when DSHS, even without a statutory mandate, has refused to give the Ombudsman all requested records.

 

    For these reasons, I have vetoed sections 1 and 6 of Substitute Senate Bill No. 6001.

 

    With the exception of sections 1 and 6, Substitute Senate Bill No. 6001 is approved."