The Children’s Code addresses issues impacting the youth in OJJ’s care including: Mandatory Reporting, Safe Environments, Confidentiality and Expungement of Case Records.
Ch. C. Art. 610 requires that mandatory reporters immediately report to the local child protection unit of DSS (Department of Social Services) and/or local law enforcement if he/she has cause to believe that a child’s physical or mental health or welfare is endangered as a result of abuse or neglect or that abuse or neglect was a contributing factor in a child’s death. Youth Services Policy C.4.3 contains these same requirements.
Failure to follow the mandatory reporting law can result in one being found guilty of a misdemeanor and subject to a fine, being imprisoned, or both. A mandatory reporter is guilty if he/she:
- fails to report the suspected abuse
- obstructs the procedures for receiving and investigating reports of child abuse or neglect or sexual abuse
- discloses without authorization confidential information about or contained within such reports
- falsely makes such a report.
Confidentiality is the practice of keeping secure and secret from others, information given by, or about someone, in the course of a professional relationship. Confidentiality is central to maintaining trust between professionals and clients. Confidentiality is owed and obligated to all, including minors and adults who may not have the capacity to make decisions for themselves or others.
Confidentiality applies to any and all forms of transmission: verbal, written, digital, manual or hardcopy records, videos and illustrations – wherever this information can be identified with a specific person.
If information is disclosed about an individual to others, this will be considered a breach of confidentiality, only if the information was unknown to the recipient of the information. Confidentiality applies to personal information. There are situations where general types of information may be disclosed without a confidentiality breach. For example, if a person’s relatives know about a situation, discussing it with them does not breach confidentiality. However, discussing the person’s feelings about the issue or situation may be a breach of confidentiality. Confidentiality can be waived with the individual’s consent, usually expressed in writing.
There are situations where it is permissible to breach confidentiality without penalty. Such situations include but are not limited to: the professional is aware of or suspects the individual is acting illegally or the professional is aware or suspects the individual is harming others. "Others" may include people with whom the individual has a relationship, members of the general public or professionals with whom the individual has a service-provider/service-user relationship. Confidentiality may be breached when the professional is aware or suspects the individual has harmed himself or others, or may do so in the future. Confidentiality may also be breached if the professional is aware or suspects that a minor is being exploited or abused by others. Cases in which the professional is aware or suspects a competent adult is being exploited or abused by others constitutes an impermissible breach of confidentiality.
Louisiana Ch. C. Art. 545 and YS Policy B.3.1 references confidentiality issues.
Disclosure of information according to any interagency information-sharing agreement shall only be made between authorized persons within agencies that are involved in the assessment, diagnosis, treatment, care, or rehabilitation of children and for the purpose of ensuring cooperation and coordination of all agencies in providing services to children and their families.
CONFIDENTIALITY OF YOUTH RECORDS
Establishment of protective measures for guarding the privacy of youthful offenders can be traced to the separation of juvenile courts from criminal court systems, which included the idea of keeping juvenile proceedings and records private.
Juvenile records reflect both the legal and social history of a youth, based on the juvenile's contact with various state and local agencies and service providers. Social history records often include information about a youth's family and academic records and any history of abuse or neglect or problems with drug and alcohol use. Legal records include information relating to court proceedings involving the juvenile and information introduced and used as evidence. These records include petitions, complaints, motions, court findings, and court orders.
Recent state action has recognized that many agencies that serve children may be better equipped to do so if provided with comprehensive access to a youth's records. Policy initiatives that support this idea include expanding access to juvenile records to youth corrections personnel, to courts, and to other state agencies, and school officials in some cases.
The confidential nature of OJJ records is established by statute. Release of records is described in R.S. 15:574.12. Paragraph A of the statute establishes the general rule as to confidentiality.
Juvenile files contain educational records protected by the Family Educational Rights and Privacy Act, 20 USC 1232g. Juvenile records may contain detailed medical, mental health and treatment information that is protected by the Health Insurance Portability and Accountability Act (HIPAA), Public Law 104-191 of 1996.
Under Ch.C. Art. 412, records about juvenile court proceedings are confidential. Only the juvenile court can authorize release of documents created from proceedings before the court. Under limited circumstances the District Attorney and law enforcement may release certain identifying information concerning the youth to the public, provided the youth is at least 14 years old when the act occurred.
In order to gain release of confidential files of juveniles, the records must be submitted for an in camera (private) inspection by the court to determine relevancy and whether there is a need to protect the information. The in camera review is critical in circumstances where the files are those of juveniles who are not parties to a lawsuit.
EXPUNGEMENT OF CASE RECORDS
A person ages 17 or older can petition the juvenile court to have records permanently removed in certain cases. This is referred to as expungement. According to the Children’s Code (Ch.C. Art. 918), case records may be expunged:
- Where conduct or conditions did not result in an adjudication
- Where conduct or conditions resulted in a misdemeanor adjudication
- only if two or more years have elapsed since the youth satisfied the conditions of the most recent judgment
- Where conduct or conditions resulted in a felony adjudication, the record may be expunged only if:
- the adjudication was not for murder, manslaughter, kidnapping, armed robbery or a sex crime
- more than 5 years must have elapsed since the most recent judgment was satisfied
- there are no adult felony convictions or adult misdemeanor convictions involving a weapon
Upon service of expungement orders, OJJ is required to remove all references to the petition/adjudication/disposition included in our records. If the petition, adjudication, and/or disposition named in the expungement petition is the only information we have on the youth, OJJ must remove his entry from the case management system and the hard copy of his record is destroyed.