CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 925

Author:(Gloria)

As Amended Ver:August 15, 2019

Majority vote

SUMMARY:

Allows a court to permit disclosure of confidential information about a minor in order to implement a civil domestic violence protective order or a civil harassment restraining order, or if disclosure would be in the minor's best interest. Makes clear that a minor who has alleged abuse or harassment cannot be sanctioned for disclosing the minor's own confidential information. Specifically, this bill:

1. Permits a court, whether to implement a domestic violence protective order or civil harassment restraining order, or if it is in the minor's best interest, to authorize disclosure of information regarding a minor that the court has otherwise deemed confidential.
2. Permits a court, if it is in the minor's best interests, to authorize disclosure of any portion of the confidential information regarding a minor that the court has otherwise deemed confidential to any other person upon that person's petition. The court must afford the party who originally requested confidentiality an opportunity to contest this disclosure.
3. Alters the penalty for a prohibited use of a minor's confidential information from an order of civil contempt to a permissive sanction, while preserving the previously-specified fines of up to $1,000. Requires the court to assess whether the sanctioned party has, or is reasonably likely to have, the ability to pay the fine.
4. Alters the type of prohibited use of a minor's confidential information that is subject to sanction from any disclosure or misuse of the information to disclosure of the information made without a court order.
5. Permits either a minor's legal guardian, or a person to whom a minor's confidential information has been disclosed, to further disclose the minor's confidential information without a court order if necessary to prevent abuse or harassment or if doing so is in the minor's best interest. However, they may disclose no more information than necessary and only if obtaining a court order would cause delay. Such a disclosure is only sanctionable if it is malicious or reckless.
6. Exempts a minor who has alleged abuse or harassment from sanctions for disclosing the minor's otherwise-protected confidential information.
7. Clarifies that information regarding a minor protected by a confidentiality order shall be included in the notice sent to the restrained party to the extent necessary for (a) enforcement of the confidentiality order and (b) the restrained party to comply with and respond to the protective order. Alters the requirements of that notice to specifically identify the information made confidential and to include a statement that disclosure is punishable by a monetary fine.

The Senate Amendments:

Apply equivalent provisions to a minor's confidential information obtained in connection with either a civil domestic violence protective order or a civil harassment restraining order. (As originally passed by the Assembly, the bill's provisions would have applied only to civil domestic violence protective orders.)

COMMENTS:

Information about minors is inevitably disclosed during many proceedings to grant domestic violence protective orders and civil harassment restraining orders. Existing law permits courts, on petition, to designate this information as confidential. Unfortunately, while current law authorizes certain exceptions from court-ordered confidentiality, existing exemptions are insufficient to address common real-world situations in which persons must be notified about the terms of protective orders as they apply to minors. This bill would allow exceptions from confidentiality for appropriate purposes, and would refine the penalties for disclosure to avoid unnecessarily punishing certain types of disclosures.

According to the Author:

[Family Code Section] 6301.5 was codified in 2018 to extend the privacy provisions for survivors in criminal courts to family courts. However, unlike criminal protective orders, domestic violence restraining orders that are issued by a family court contain stay-away orders from the minor's school and custody and visitation orders when the parties share a child in common. Accordingly, in a domestic violence restraining order matter, there are individuals outside of law enforcement and the respondent who may need the confidential information in order to enforce the order, including child-care providers, medical and mental-health providers, and professional and non-professional supervisors for visitation. The current law renders survivors of domestic abuse, especially survivors who are parents that share a child in common with their abusers, unable to share necessary information about the minor, including the minor's name, with necessary third parties [unless they want to risk being sanctioned].

Arguments in Support:

Family Violence Appellate Project, this bill's sponsor, writes:

[U]nder the current law, the only individuals who are permitted access to the domestic violence restraining order are law enforcement and the respondent. The minor's school, child-care providers, [and] lawyers for the minor…are not allowed access to that information. What makes this worse is if the minor or the minor's legal guardian shares the domestic violence restraining order with these third parties, then they are subject to a strict liability fine of $1,000. Without the ability to share the necessary information with third parties that are relevant to enforcing the order, the minor's safety and well-being are at risk.

Arguments in Opposition:

None on file.

FISCAL COMMENTS:

According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

VOTES:

ASM JUDICIARY: 12-0-0

YES: Mark Stone, Gallagher, Chau, Chiu, Gonzalez, Holden, Kalra, Fong, Maienschein, Obernolte, Petrie-Norris, Reyes

ASM APPROPRIATIONS: 17-0-1

YES: Gonzalez, Bigelow, Bonta, Brough, Calderon, Carrillo, Chau, Diep, Eggman, Fong, Gabriel, McCarty, Maienschein, Obernolte, Petrie-Norris, Quirk, Robert Rivas

ABS, ABST OR NV: Bloom

ASSEMBLY FLOOR: 76-0-4

YES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Obernolte, Patterson, Petrie-Norris, Quirk, Quirk‑Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

ABS, ABST OR NV: Arambula, Chen, Eduardo Garcia, Gray

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Atkins, Bates, Beall, Borgeas, Bradford, Caballero, Chang, Dahle, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Grove, Hertzberg, Hill, Hueso, Hurtado, Jackson, Jones, McGuire, Mitchell, Monning, Moorlach, Morrell, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Stone, Umberg, Wieckowski, Wiener, Wilk

ABS, ABST OR NV: Leyva

UPDATED:

VERSION: August 15, 2019

CONSULTANT: Jith Meganathan / JUD. / (916) 319-2334 FN: 0001445

 THIRD READING 

Bill No: AB 925

Author: Gloria (D)

Amended: 8/15/19 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 6/18/19

AYES: Jackson, Borgeas, Durazo, Lena Gonzalez, Jones, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 4/25/19 (Consent) - See last page for vote

SUBJECT: Protective orders: confidential information regarding minors

SOURCE: Family Violence Appellate Project

DIGEST:

This bill expands the circumstances in which it is permissible to disclose a minor’s confidential information contained in certain protective orders.

Senate Floor Amendments of 8/15/19 establish the circumstances in which a disclosure of information contained in a civil harassment protective order may be made without a court order.

ANALYSIS:

Existing law:

1. Establishes the Domestic Violence Prevention Act (DVPA) (Fam. Code § 6200 et seq)^[1] to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence (§ 6220).
2. Provides that a family court may issue a protective order for domestic violence prevention, as specified. (§§ 6220, 6300, 6320, et seq.)
3. Provides that unless confidentiality is required by law, court records are presumed to be open. (Cal. Rules of Court § 2.550(c).)
4. Allows a court to order a court record to be sealed only if the court expressly finds facts that establish:
   1. there exists an overriding interest that overcomes the right of public access to the record;
   2. the overriding interest supports sealing the record;
   3. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
   4. the proposed sealing is narrowly tailored; and
   5. no less restrictive means exist to achieve the overriding interest. (Ibid.)
5. Provides that an order sealing the record must:
   1. specifically state the facts that support the findings; and
   2. direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. (Ibid.)
6. Allows a minor or the minor’s legal guardian to petition the court to make confidential certain information regarding the minor obtained when issuing a domestic violence protective order, including, but not limited to, the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor. (§ 6301.5(a).)
7. Permits a court to order that the information in 6), above, be kept confidential if the court expressly finds:
   1. the minor’s right to privacy overcomes the right of public access to the information;
   2. there is a substantial probability that the minor’s interest will be prejudiced if the information is not kept confidential;
   3. the proposal to keep the information confidential is narrowly tailored; and
   4. no less restrictive means exist to protect the minor’s privacy. (Id. at (b).)
8. Requires, if the court grants the request for information regarding the minor to be kept confidential, that, except as provided, the information be maintained in a confidential case file and not become part of the public file in the proceeding or any other civil proceeding. (Ibid.)
9. Makes disclosure or misuse of that confidential information punishable as a contempt of court with a fine of up to $1,000, but not by imprisonment. (Id. at (c).)
10. Requires that information regarding a minor protected by an order be made available to law enforcement for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System to the extent necessary and only for purposes of enforcing the order. (Id at (d)(1); § 6380.)
11. Requires that, to the extent necessary for the enforcement of the order and for the restrained party to comply with and respond to the order, information regarding a minor protected by a confidentiality order be included in the notice sent to the restrained party. Requires the notice to identify the specific information that has been made confidential and to include a statement that disclosure or misuse of that information is punishable as a contempt of court. (6301.5(d)(2).)
12. Establishes, in the context of protective orders for victims of harassment, a nearly identical process for a minor’s guardian to petition for the minor’s information to be kept confidential, in which case the information may be disclosed only to law enforcement or the restrained party. A violation of these provisions is punishable as contempt of court with a fine of up to $1,000. (Code Civ. Proc. § 527.6(v).)

This bill:

1. Provides that if a court grants a request to make information regarding a minor obtained when issuing a protective order under the DVPA confidential, the court may impose a sanction of up to $1,000 if the information is disclosed without a court order, subject to a finding that the person has or is reasonably likely to have the ability to pay. Exempts the minor from liability for unauthorized disclosure.
2. Provides that the minor’s confidential information may be disclosed without a court order only in the following circumstances:
   1. By the minor’s legal guardian that petitioned to keep the information confidential or a party that is protected under the restraining order, provided that the disclosure either effectuates the purpose of the DVPA, which is to prevent abuse and provide for a separation of the parties to resolve the causes of the abuse, or is in the best interest of the child. However, the guardian or protected party is subject to a sanction if the disclosure is malicious.
   2. By a person to whom confidential information is disclosed, provided that the disclosure effectuates the purposes of the DVPA or is in the best interest of the child, no more information than necessary is disclosed, and a delay would be caused by first obtaining a court order to authorize the disclosure of the information. A person who makes a disclosure under this provision is subject to a sanction if the person discloses the information in a manner that recklessly or maliciously disregards these requirements.
3. Provides that at any time a court may on its own authorize disclosure of any portion of the confidential information to entities that provide services to the child, such as educators, care providers, attorneys, and medical health professionals, if doing so is necessary to effectuate the purpose of the DVPA or if doing so is in the best interest of the minor.
4. Authorizes a court, upon petition, to authorize a disclosure if the court determines that it is necessary to effectuate the purpose of the DVPA or that disclosure is in the best interest of the minor. Provides that the party that petitioned the court to keep the information confidential must be served with a copy of the petition and afforded an opportunity to object to the disclosure.
5. Does the following with regard to the disclosure of a minor’s confidential information in connection with a protective order against a harasser:
   1. authorizes the court to impose a sanction of up to $1,000 if the information is disclosed without a court order, subject to a finding that the person has or is reasonably likely to have the ability to pay;
   2. exempts the minor from liability for unauthorized disclosure;
   3. enables a court, on its own or upon petition, to authorize the disclosure if doing so is necessary to prevent harassment or in the best interest of the minor.
6. Provides that the minor’s confidential information in a protective order against a harasser may be disclosed without a court order only in the following circumstances:
   1. By the minor’s legal guardian who petitioned to keep the information confidential pursuant to this subdivision or the protected party in an order pursuant to this division, provided that the disclosure is necessary to prevent harassment or is in the minor’s best interest. However, a legal guardian or a protected party who makes a disclosure under this clause is subject to the sanction only if the disclosure was malicious.
   2. By a person to whom confidential information is disclosed, provided that the disclosure is necessary to prevent harassment or is in the best interest of the minor, no more information than necessary is disclosed, and a delay would be caused by first obtaining a court order to authorize the disclosure of the information. However, a person who makes a disclosure pursuant to this clause is subject to the sanction if the person discloses the information in a manner that recklessly or maliciously disregards these requirements.

Background

Existing law seeks to balance the need for public access to judicial proceedings and records with the privacy interests of individuals involved in court proceedings. Last session, the Legislature enacted AB 953 (Baker, Chapter 284, Statutes of 2017), which established processes for a minor or a minor’s guardian to petition the court to keep all information regarding the minor obtained when issuing a protective order for victims of domestic abuse or harassment, including the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor, in a confidential case file. If the court grants this request, the information may be shared only with law enforcement and the restrained party, if doing so is necessary to enforce the order. An unauthorized disclosure is subject to a sanction of up to $1,000.

Comments

This bill is sponsored by Family Violence Appellate Project, which contends that AB 953, although well-intended, is unduly restrictive of minors and their families, particularly those that have suffered through domestic abuse. This bill seeks to introduce more flexibility into AB 953’s provisions by enabling certain parties to disclose the minor’s information if doing so is in the best interest of the minor or necessary to effectuate the order, provided that such a party either (1) does not disclose the information in a manner that inappropriately disregards this requirement, or (2) receives a court order to make the disclosure, as specified.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/21/19)

Family Violence Appellate Project (source)

California Judges Association
California Partnership to End Domestic Violence

OPPOSITION: (Verified 8/21/19)

None received

ARGUMENTS IN SUPPORT: The California Partnership to End Domestic Violence writes, “Current law leaves survivors of domestic abuse, especially survivors who are parents that share a child with their abuser, unable to share necessary information about their child with relevant third parties. If a survivor/parent does share the necessary information with individuals other than law enforcement or the respondent, they are subject to a $1,000 fine, which can be extremely detrimental to someone trying to escape their abuser.”

The California Judges Association writes, “AB 925 (Gloria) addresses issues that have arisen because of the limited scope of disclosure allowed under current law regarding the ability to inform third parties that a minor is protected by a domestic violence restraining orders. AB 925 (Gloria) will help insure that, in fact, minors are more fully protected when they are a protected party under a DVRO by allowing the court to have reasonable discretion in making disclosures to important third parties that have the ability to help police compliance with the DVRO such as a minor’s school, medical professional, or child care provider.”

ASSEMBLY FLOOR: 76-0, 4/25/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Arambula, Chen, Eduardo Garcia, Gray

Prepared by: Josh Tosney / JUD. / (916) 651-4113

8/21/19 13:48:58

**** END ****

1. All further statutory references are to the Family Code unless otherwise specified. ↑

 THIRD READING 

Bill No: AB 925

Author: Gloria (D)

Amended: 6/10/19 in Senate

Vote: 21

SENATE JUDICIARY COMMITTEE: 9-0, 6/18/19

AYES: Jackson, Borgeas, Durazo, Lena Gonzalez, Jones, Monning, Stern, Umberg, Wieckowski

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 4/25/19 (Consent) - See last page for vote

SUBJECT: Protective orders: confidential information regarding minors

SOURCE: Family Violence Appellate Project

DIGEST:

This bill expands the circumstances in which it is permissible to disclose a minor’s confidential information contained in certain protective orders.

ANALYSIS:

Existing law:

1. Establishes the Domestic Violence Prevention Act (DVPA) (Fam. Code § 6200 et seq)^[1] to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence (§ 6220).
2. Provides that a family court may issue a protective order for domestic violence prevention, as specified. (§§ 6220, 6300, 6320, et seq.)
3. Provides that unless confidentiality is required by law, court records are presumed to be open. (Cal. Rules of Court § 2.550(c).)
4. Allows a court to order a court record to be sealed only if the court expressly finds facts that establish:
   1. there exists an overriding interest that overcomes the right of public access to the record;
   2. the overriding interest supports sealing the record;
   3. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
   4. the proposed sealing is narrowly tailored; and
   5. no less restrictive means exist to achieve the overriding interest. (Ibid.)
5. Provides that an order sealing the record must:
   1. specifically state the facts that support the findings; and
   2. direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. (Ibid.)
6. Allows a minor or the minor’s legal guardian to petition the court to make confidential certain information regarding the minor obtained when issuing a domestic violence protective order, including, but not limited to, the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor. (§ 6301.5(a).)
7. Permits a court to order that the information in 6), above, be kept confidential if the court expressly finds:
   1. the minor’s right to privacy overcomes the right of public access to the information;
   2. there is a substantial probability that the minor’s interest will be prejudiced if the information is not kept confidential;
   3. the proposal to keep the information confidential is narrowly tailored; and
   4. no less restrictive means exist to protect the minor’s privacy. (Id. at (b).)
8. Requires, if the court grants the request for information regarding the minor to be kept confidential, that, except as provided, the information be maintained in a confidential case file and not become part of the public file in the proceeding or any other civil proceeding. (Ibid.)
9. Makes disclosure or misuse of that confidential information punishable as a contempt of court with a fine of up to $1,000, but not by imprisonment. (Id. at (c).)
10. Requires that information regarding a minor protected by an order be made available to law enforcement for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System to the extent necessary and only for purposes of enforcing the order. (Id at (d)(1); § 6380.)
11. Requires that, to the extent necessary for the enforcement of the order and for the restrained party to comply with and respond to the order, information regarding a minor protected by a confidentiality order be included in the notice sent to the restrained party. Requires the notice to identify the specific information that has been made confidential and to include a statement that disclosure or misuse of that information is punishable as a contempt of court. (6301.5(d)(2).)
12. Establishes, in the context of protective orders for victims of harassment, a nearly identical process for a minor’s guardian to petition for the minor’s information to be kept confidential, in which case the information may be disclosed only to law enforcement or the restrained party. A violation of these provisions is punishable as contempt of court with a fine of up to $1,000. (Code Civ. Proc. § 527.6(v).)

This bill:

1. Provides that if a court grants a request to make information regarding a minor obtained when issuing a protective order under the DVPA confidential, the court may impose a sanction of up to $1,000 if the information is disclosed without a court order, subject to a finding that the person has or is reasonably likely to have the ability to pay. Exempts the minor from liability for unauthorized disclosure.
2. Provides that the minor’s confidential information may be disclosed without a court order only in the following circumstances:
   1. By the minor’s legal guardian that petitioned to keep the information confidential or a party that is protected under the restraining order, provided that the disclosure either effectuates the purpose of the DVPA, which is to prevent abuse and provide for a separation of the parties to resolve the causes of the abuse, or is in the best interest of the child. However, the guardian or protected party is subject to a sanction if the disclosure is malicious.
   2. By a person to whom confidential information is disclosed, provided that the disclosure effectuates the purposes of the DVPA or is in the best interest of the child, no more information than necessary is disclosed, and a delay would be caused by first obtaining a court order to authorize the disclosure of the information. A person who makes a disclosure under this provision is subject to a sanction if the person discloses the information in a manner that recklessly or maliciously disregards these requirements.
3. Provides that at any time a court may on its own authorize disclosure of any portion of the confidential information to entities that provide services to the child, such as educators, care providers, attorneys, and medical health professionals, if doing so is necessary to effectuate the purpose of the DVPA or if doing so is in the best interest of the minor.
4. Authorizes a court, upon petition, to authorize a disclosure if the court determines that it is necessary to effectuate the purpose of the DVPA or that disclosure is in the best interest of the minor. Provides that the party that petitioned the court to keep the information confidential must be served with a copy of the petition and afforded an opportunity to object to the disclosure.
5. Specifies the following with regard to the disclosure of a minor’s confidential information in connection with a protective order against a harasser:
   1. authorizes the court to impose a sanction of up to $1,000 if the information is disclosed without a court order, subject to a finding that the person has or is reasonably likely to have the ability to pay;
   2. exempts the minor from liability for unauthorized disclosure;
   3. enables a court, on its own or upon petition, to authorize the disclosure if doing so is necessary to prevent harassment or in the best interest of the minor.

Background

Existing law seeks to balance the need for public access to judicial proceedings and records with the privacy interests of individuals involved in court proceedings. Last session, the Legislature enacted AB 953 (Baker, Chapter 284, Statutes of 2017), which established processes for a minor or a minor’s guardian to petition the court to keep all information regarding the minor obtained when issuing a protective order for victims of domestic abuse or harassment, including the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor, in a confidential case file. If the court grants this request, the information may be shared only with law enforcement and the restrained party, if doing so is necessary to enforce the order. An unauthorized disclosure is subject to a sanction of up to $1,000.

Comments

This bill is sponsored by Family Violence Appellate Project, which contends that AB 953, although well-intended, is unduly restrictive of minors and their families, particularly those that have suffered through domestic abuse. This bill seeks to introduce more flexibility into AB 953’s provisions by enabling courts to authorize the disclosure of the minor’s information if doing so is in the best interest of the minor or necessary to effectuate the order. Additionally, in the context of domestic violence restraining orders (DVROs), this bill enables specified parties to disclose the minor’s information if doing so effectuates the purposes of the DVRO or is in the best interest of the minor.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 7/2/19)

Family Violence Appellate Project (source)

California Judges Association
California Partnership to End Domestic Violence

OPPOSITION: (Verified 7/2/19)

None received

ARGUMENTS IN SUPPORT: The California Partnership to End Domestic Violence writes, “Current law leaves survivors of domestic abuse, especially survivors who are parents that share a child with their abuser, unable to share necessary information about their child with relevant third parties. If a survivor/parent does share the necessary information with individuals other than law enforcement or the respondent, they are subject to a $1,000 fine, which can be extremely detrimental to someone trying to escape their abuser.”

The California Judges Association writes, “AB 925 (Gloria) addresses issues that have arisen because of the limited scope of disclosure allowed under current law regarding the ability to inform third parties that a minor is protected by a domestic violence restraining orders. AB 925 (Gloria) will help insure that, in fact, minors are more fully protected when they are a protected party under a DVRO by allowing the court to have reasonable discretion in making disclosures to important third parties that have the ability to help police compliance with the DVRO such as a minor’s school, medical professional, or child care provider.”

ASSEMBLY FLOOR: 76-0, 4/25/19

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bigelow, Bloom, Boerner Horvath, Bonta, Brough, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Choi, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Diep, Eggman, Flora, Fong, Frazier, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, Obernolte, O'Donnell, Patterson, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Voepel, Waldron, Weber, Wicks, Wood, Rendon

NO VOTE RECORDED: Arambula, Chen, Eduardo Garcia, Gray

Prepared by: Josh Tosney / JUD. / (916) 651-4113

7/5/19 11:44:56

**** END ****

1. All further statutory references are to the Family Code unless otherwise specified. ↑

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: AB 925 (Author:Gloria)

Version: June 10, 2019

Hearing Date: June 18, 2019

Fiscal: Yes

Urgency: No

Consultant: JT

SUBJECT

Protective orders: confidential information regarding minors

DIGEST

This bill expands the circumstances in which it is permissible to disclose a minor’s confidential information contained in certain protective orders.

EXECUTIVE SUMMARY

Existing law seeks to balance the need for public access to judicial proceedings and records with the privacy interests of individuals involved in court proceedings. Last session, the Legislature enacted AB 953 (Baker, Ch. 284, Stats 2017), which established processes for a minor or a minor’s guardian to petition the court to keep all information regarding the minor obtained when issuing a protective order for victims of domestic abuse or harassment, including the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor, in a confidential case file. If the court grants this request, the information may be shared only with law enforcement and the restrained party, if doing so is necessary to enforce the order. An unauthorized disclosure is subject to a sanction of up to $1,000.

This bill is sponsored by Family Violence Appellate Project (FVAP), which contends that AB 953, although well-intended, is unduly restrictive of minors and their families, particularly those that have suffered through domestic abuse. This bill seeks to introduce more flexibility into AB 953’s provisions by enabling courts to authorize the disclosure of the minor’s information if doing so is in the best interest of the minor or necessary to effectuate the order. Additionally, in the context of domestic violence restraining orders, this bill would enable specified parties to disclose the minor’s information if doing so effectuates the purposes of the domestic violence restraining order or is in the best interest of the minor. The bill is supported by the California Judges Association and the California Partnership to End Domestic Violence, and has no known opposition.

PROPOSED CHANGES TO THE LAW

Existing law:

1. Establishes the Domestic Violence Prevention Act (DVPA) (Fam. Code § 6200 et seq)^[1] to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence (§ 6220).
2. Provides that a family court may issue a protective order for domestic violence prevention, as specified. (§§ 6220, 6300, 6320, et seq.)
3. Provides that unless confidentiality is required by law, court records are presumed to be open. (Cal. Rules of Court § 2.550(c).)
4. Allows a court to order a court record to be sealed only if the court expressly finds facts that establish:
   1. there exists an overriding interest that overcomes the right of public access to the record;
   2. the overriding interest supports sealing the record;
   3. a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
   4. the proposed sealing is narrowly tailored; and
   5. no less restrictive means exist to achieve the overriding interest. (Ibid.)
5. Provides that an order sealing the record must:
   1. specifically state the facts that support the findings; and
   2. direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. (Ibid.)
6. Allows a minor or the minor’s legal guardian to petition the court to make confidential certain information regarding the minor obtained when issuing a domestic violence protective order, including, but not limited to, the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor. (§ 6301.5(a).)
7. Permits a court to order that the information in 6), above, be kept confidential if the court expressly finds:
   1. the minor’s right to privacy overcomes the right of public access to the information;
   2. there is a substantial probability that the minor’s interest will be prejudiced if the information is not kept confidential;
   3. the proposal to keep the information confidential is narrowly tailored; and
   4. no less restrictive means exist to protect the minor’s privacy. (Id. at (b).)
8. Requires, if the court grants the request for information regarding the minor to be kept confidential, that, except as provided, the information be maintained in a confidential case file and not become part of the public file in the proceeding or any other civil proceeding. (Ibid.)
9. Makes disclosure or misuse of that confidential information punishable as a contempt of court with a fine of up to $1,000, but not by imprisonment. (Id. at (c).)
10. Requires that information regarding a minor protected by an order be made available to law enforcement for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System to the extent necessary and only for purposes of enforcing the order. (Id at (d)(1); § 6380.)
11. Requires that, to the extent necessary for the enforcement of the order and for the restrained party to comply with and respond to the order, information regarding a minor protected by a confidentiality order be included in the notice sent to the restrained party. Requires the notice to identify the specific information that has been made confidential and to include a statement that disclosure or misuse of that information is punishable as a contempt of court. (6301.5(d)(2).)
12. Establishes, in the context of protective orders for victims of harassment, a nearly identical process for a minor’s guardian to petition for the minor’s information to be kept confidential, in which case the information may be disclosed only to law enforcement or the restrained party. A violation of these provisions is punishable as contempt of court with a fine of up to $1,000. (Code Civ. Proc. § 527.6(v).)

This bill:

1. Provides that if a court grants a request to make information regarding a minor obtained when issuing a protective order under the DVPA confidential, the court may impose a sanction of up to $1,000 if the information is disclosed without a court order, subject to a finding that the person has or is reasonably likely to have the ability to pay. Exempts the minor from liability for unauthorized disclosure.
2. Provides that the minor’s confidential information may be disclosed without a court order only in the following circumstances:
   1. By the minor’s legal guardian that petitioned to keep the information confidential or a party that is protected under the restraining order, provided that the disclosure either effectuates the purpose of the DVPA, which is to prevent abuse and provide for a separation of the parties to resolve the causes of the abuse, or is in the best interest of the child. However, the guardian or protected party is subject to a sanction if the disclosure is malicious.
   2. By a person to whom confidential information is disclosed, provided that the disclosure effectuates the purposes of the DVPA or is in the best interest of the child, no more information than necessary is disclosed, and a delay would be caused by first obtaining a court order to authorize the disclosure of the information. A person who makes a disclosure under this provision is subject to a sanction if the person discloses the information in a manner that recklessly or maliciously disregards these requirements.
3. Provides that at any time a court may on its own authorize disclosure of any portion of the confidential information to entities that provide services to the child, such as educators, care providers, attorneys, and medical health professionals, if doing so is necessary to effectuate the purpose of the DVPA or if doing so is in the best interest of the minor.
4. Authorizes a court, upon petition, to authorize a disclosure if the court determines that it is necessary to effectuate the purpose of the DVPA or that disclosure is in the best interest of the minor. Provides that the party that petitioned the court to keep the information confidential must be served with a copy of the petition and afforded an opportunity to object to the disclosure.
5. With regard to the disclosure of a minor’s confidential information in connection with a protective order against a harasser:
   1. authorizes the court to impose a sanction of up to $1,000 if the information is disclosed without a court order, subject to a finding that the person has or is reasonably likely to have the ability to pay;
   2. exempts the minor from liability for unauthorized disclosure;
   3. enables a court, on its own or upon petition, to authorize the disclosure if doing so is necessary to prevent harassment or in the best interest of the minor.

COMMENTS

1. Background

Existing law seeks to balance the need for public access to judicial proceedings and records with the privacy interests of individuals involved in court proceedings. In 1977, the California Court of Appeals for the Second Appellate District wrote:

If public court business is conducted in private, it becomes impossible to expose corruption, incompetence, inefficiency, prejudice, and favoritism. For this reason, traditional Anglo-American jurisprudence distrusts secrecy in judicial proceedings and favors a policy of maximum public access to proceedings and records of judicial tribunals. (Estate of Hearst (1977) 67 Cal.App.3d 777, 784.)

To allow for confidentiality when necessary, the California Supreme Court laid out a four-part balancing test in NBC Subsidiary (KNBS-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 784). This test was then added to the California Rules of Court in rule 2.550, which allows a court to order that a record be filed under seal only if it expressly finds facts that establish:

• there exists an overriding interest that overcomes the right of public access to the record;
• the overriding interest supports sealing the record;
• a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
• the proposed sealing is narrowly tailored; and
• no less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court § 2.550(d).)

Other aspects of California law recognize the sensitivity of information contained in judicial records and limit access to those records or anonymize the records. For example, in criminal proceedings involving sex offenses, the court may, at the request of the alleged victim, order the identity of the alleged victim in all records and during all proceedings to be designated as either Jane Doe or John Doe, if the court finds that such an order is reasonably necessary to protect the privacy of the person and will not unduly prejudice the prosecution or the defense. (Pen. Code § 293.5.) Furthermore, in juvenile court proceedings, the juvenile court file may only be reviewed by entities specified in statute. (Welf. & Inst. Code § 827.) Finally, to protect a minor’s identity, the California Rules of Court allow for the use of a minor’s first name and last initial. (Cal. Rules of Court § 8.401(a).)

AB 953 (Baker, 2017) enacted Family Code Section 6301.5 and added Code of Civil Procedure section 527.6(v), established near-identical processes for a minor or a minor’s guardian to petition the court to keep all information regarding the minor obtained when issuing a protective order for victims of domestic abuse or harassment, including the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor, in a confidential case file. If the court grants this request, the information regarding the minor must be maintained in a confidential case file, and can only be shared (1) with law enforcement for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System and (2) with the restrained party. These exceptions respectively ensure that the underlying protective order can be properly enforced by law enforcement and that the restrained party understands the order. These sections impose a penalty of up to $1,000 for contempt of court if the minor’s information is disclosed to any other individual.

2. Seeks a balance between confidentiality and the need to disclose certain information

According to the author, although AB 953 extended important privacy protections to minors who are victims of domestic abuse or harassment, these protections are unduly restrictive and overly punitive. By exposing virtually all disclosures of confidential information to sanctions, these provisions could harm the minor and the minor’s family by inhibiting their ability to share important information in routine transactions as well as in important communications necessary to ensure the wellbeing of the minor. This bill seeks to introduce more flexibility to enable beneficial disclosures of confidential information while maintaining protections against misuses of the information.

1. Exempts the minor from liability

AB 953 expressly admits of just two exceptions to its prohibition on the disclosure of confidential information: disclosures to law enforcement and to the respondent in the proceeding, if the disclosure is necessary to enforce the protective order.

FVAP argues that among the many unintended consequences of these restrictive provisions, it is possible that even if the minor voluntarily discloses their own confidential information, they may face a possible sanction under existing law. According to FVAP, “a minor who obtains a confidentiality order with their domestic violence restraining order and later discloses the circumstances related to the orders to their domestic violence advocate or counselor could be fined the $1,000 penalty.” Presumably, minors will act in their own self-interest in making disclosures. And if they do disclose the information carelessly, there is little value in exposing them to liability on top of this potential self-harm. Ultimately, the goal of these provisions is to protect the minor from others. Consequently, this bill would altogether exempt the minor from the sanction associated with an unauthorized disclosure.

1. Allows disclosure without a court order in certain circumstances involving domestic violence restraining orders

Several different entities—including educators, caretakers, and medical providers—frequently need to use key information or understand the terms of a domestic violence restraining order in order to provide a minor with care or services. The author argues as follows:

Unlike criminal protective orders, domestic violence restraining orders issued by a family court contain stay-away orders from a minor’s school, as well as, custody and visitation orders when the parents share a child. Due to this, there are individuals outside of law enforcement and the respondent who may need information about the minor in order to enforce the order. AB 925 will ensure that sensitive information about a minor in a domestic violence restraining order is kept confidential, but will allow parties necessary to enforcing these orders, access to that information. This could include child-care providers, medical and mental-health providers, and professional and non-professional supervisors for visitation.

This bill would provide that the minor’s confidential information may be disclosed without a court order by the minor’s guardian, the protected party, and third parties that have been provided with the confidential information, provided that the disclosure effectuates the purposes of DVPA or is in the best interest of the minor. However, if the minor’s guardian or the protected party act maliciously, or if the third party recipient of information acts recklessly or maliciously, the court may impose a sanction of up to $1,000. As for any other party’s unauthorized disclosure, the court may impose the sanction regardless of their intent in making the disclosure. However, any sanction imposed by the court is first subject to a finding that the person has the ability to pay.

As noted, disclosures under these provisions must either be in the best interest of the child or further the purpose of the DVPA. The purpose of the DVPA is to prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence. (§ 6220.) FVAP points out that there are numerous potential situations in which it is necessary for the parent-survivor to disclose the information, including disclosures to the parent-survivor’s current spouse, domestic violence advocate, or therapist. This bill seeks to ensure that the protection of the minor’s confidential information does not come at the expense of the overall purpose of protecting the minor and the victim of abuse under the DVPA.

Importantly, the bill does not add similar provisions with regard to confidential information contained in a protective order against a harasser. As discussed below, disclosures in that context must be made under a court order. According to the sponsor, the circumstances in which disclosures must be made by third parties are far more likely to occur in the context of domestic violence, as domestic violence situations often entail the fracturing of a family and the provision of care to the child by multiple third parties. Consequently, it is arguable that greater flexibility to disclose confidential information is appropriate in the context of domestic violence but not harassment.

1. Grants courts broad discretion to authorize the release of confidential information

Finally, this bill would also provide two mechanisms by which the court could authorize the disclosure of a minor’s confidential information contained in a protective order. The first mechanism provides that at any time a court may on its own authorize disclosure of any portion of the confidential information to certain individuals or entities as necessary to effectuate the purpose of the DVPA or if doing so is in the best interest of the minor. This provision specifies that the disclosure may be made to entities that provide services to the child, such as educators, care providers, attorneys, and medical health professionals, but does not limit permissible disclosures to this group.

The second mechanism authorizes a court, upon petition, to authorize a disclosure if the court determines that it is necessary to effectuate the purpose of the DVPA or that disclosure is in the best interest of the minor. The party that petitioned the court to keep the information confidential must be served with a copy of the petition and afforded an opportunity to object to the disclosure.

Writing in support, the California Judges Association states:

By granting the court reasonable discretion regarding the disclosure of the existence of a DVRO [domestic violence restraining order] under which a minor is protected, individuals or parties that were previously unaware of the existence of such protection may now be informed and better able to report possible violations of a DVRO, thereby providing the minor an added layer of protection from the perpetrator of domestic violence.

The bill adds similar provisions with regard to the disclosure of a minor’s confidential information contained in a protective order issued to prevent harassment. Under these provisions, a court may order or grant a petition to disclose the information if doing so is necessary to prevent harassment or is in the best interest of the minor.

3. Arguments in support

The California Partnership to End Domestic Violence writes:

Current law leaves survivors of domestic abuse, especially survivors who are parents that share a child with their abuser, unable to share necessary information about their child with relevant third parties. If a survivor/parent does share the necessary information with individuals other than law enforcement or the respondent, they are subject to a $1,000 fine, which can be extremely detrimental to someone trying to escape their abuser.

The California Judges Association writes:

AB 925 (Gloria) addresses issues that have arisen because of the limited scope of disclosure allowed under current law regarding the ability to inform third parties that a minor is protected by a domestic violence restraining orders. AB 925 (Gloria) will help insure that, in fact, minors are more fully protected when they are a protected party under a DVRO by allowing the court to have reasonable discretion in making disclosures to important third parties that have the ability to help police compliance with the DVRO such as a minor’s school, medical professional, or child care provider.

SUPPORT

Family Violence Appellate Project (sponsor)

California Judges Association
California Partnership to End Domestic Violence

OPPOSITION

None known

RELATED LEGISLATION

Pending Legislation: None known

Prior Legislation: See Comment 1.

PRIOR VOTES:

Assembly Floor (Ayes 76, Noes 0)

Assembly Appropriations Committee (Ayes 17, Noes 0)

Assembly Judiciary Committee (Ayes 12, Noes 0)

**************

1. All further statutory references are to the Family Code unless otherwise specified. ↑

Date of Hearing: April 10, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 925

Author:(Gloria) – As Amended Ver:March 28, 2019

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill authorizes a court to permit disclosure of any portion of confidential information about a minor in order to implement a civil domestic violence protective order or if disclosure of confidential information would be in the best interest of the minor. Specifically, this bill:

1. Permits a court, if it is in the minor’s best interests, to authorize disclosure of any portion of the confidential information regarding a minor that the court has otherwise deemed confidential to any other person upon that person’s petition. The court must afford the party who originally requested confidentiality an opportunity to contest this disclosure.
   
2. Alters the type of prohibited use of a minor’s confidential information that is subject to sanction from any disclosure or misuse of the information to an unwarranted disclosure of the information.
   
3. Alters the penalty for disclosure of a minor’s confidential information to a permissive fine rather than an act of contempt of court and instead requires the disclosure be unwarranted in order to constitution a violation of the court’s order.
   
4. Exempts the minor, the minor’s legal guardian and the party protected by the pertinent protective order from sanctions for disclosing the minor’s otherwise-protected confidential information.

FISCAL EFFECT:

Minor and absorbable costs to trial courts to process requests for disclosures and provide copies of petitions.

COMMENTS:

1. Purpose. According to the author:

[I]n a domestic violence restraining order matter, there are individuals outside of law enforcement and the respondent who may need the confidential information in order to enforce the order, including child-care providers, medical and mental-health providers, and professional and non-professional supervisors for visitation. The current law renders survivors of domestic abuse, especially survivors who are parents that share a child in common with their abusers, unable to share necessary information about the minor, including the minor’s name, with necessary third parties.

1. Background. AB 953 (Baker), Chapter 384, Statutes of 2017, enacted Family Code Section 6301.5, which permits a minor or a minor’s legal guardian to seek a court order designating certain information regarding the minor confidential. If the court grants the request, the information regarding the minor must be maintained in a confidential case file, and can only be shared with law enforcement for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System (CLETS) system and with the restrained party.
   These exceptions to the confidentiality requirements respectively ensure that the underlying protective order can be properly enforced by law enforcement and that the restrained party understands the order.
2. Prior Legislation. AB 953 (Baker), Chapter 384, Statutes of 2017 authorized a minor or a minor’s legal guardian to petition the court to designate as confidential information regarding the minor disclosed when the court issued a domestic violence protective order or a civil harassment restraining order.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: March 26, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 925

Author:(Gloria) – As Amended Ver:March 18, 2019

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: PROTECTIVE ORDERS: CONFIDENTIAL INFORMATION REGARDING MINORS

KEY ISSUE: SHOULD FAMILY COURTS BE AUTHORIZED TO PERMIT INFORMATION ABOUT MINORS, PREVIOUSLY DESIGNATED AS CONFIDENTIAL, TO BE DISCLOSED EITHER TO IMPLEMENT A DOMESTIC VIOLENCE PROTECTIVE ORDER OR IF DISCLOSURE IS IN THE MINOR’S BEST INTERESTS?

SYNOPSIS

Under current law, a minor or the minor’s legal guardian may petition the court to make confidential certain information regarding the minor that is typically obtained when issuing a domestic violence protective order, including, but not limited to, the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor. Subsequent disclosure is permitted only to law enforcement (for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System (CLETS)) and to the restrained party (to ensure compliance with the protective order and the confidentiality order). According to the bill’s sponsor, the Family Violence Appellate Project, current law prevents disclosure, even when needed to implement the protective order or if disclosure would be in the minor’s best interests, and unnecessarily subjects certain disclosures (such as by the minor) to a strict liability sanction. This bill would permit a court, whether to implement a protective order for domestic violence prevention or if it is in the minor’s best interests, to authorize disclosure of information regarding a minor that courts have otherwise deemed confidential. It would alter the type of prohibited use of a minor’s confidential information that is subject to sanction from any disclosure or misuse of the information to an unwarranted disclosure of the information. It would also exempt the minor, the minor’s legal guardian, and the party protected by the pertinent protective order from sanctions for disclosing the minor’s otherwise-protected confidential information. The author proposes a number of clarifying amendments, including to remove the confusing term “limited” from the bill and allow a court to authorize disclosure of any portion of the confidential information regarding a minor. Those author’s amendments are incorporated into and reflected in the analysis. This bill is supported by the California Partnership to End Domestic Violence. It has no opposition on file.

SUMMARY: Allows a court to permit disclosure of confidential information about a minor in order to implement a civil domestic violence protective order or if disclosure would be in the best interest of the minor. Specifically, this bill:

1. Permits a court, whether to implement a protective order for domestic violence prevention or if it is in the minor’s best interests, to authorize disclosure of information regarding a minor that the court has otherwise deemed confidential. The court may authorize this information to be disclosed to individuals or entities including but not limited to educational institutions, childcare providers, medical or mental health providers, professional or nonprofessional supervisors for visitation, attorneys for the parties or the minor, judicial officers, court employees, child custody evaluators, family court mediators, and court reporters.
2. Permits a court, if it is in the minor’s best interests, to authorize disclosure of any portion of the confidential information regarding a minor that the court has otherwise deemed confidential to any other person upon that person’s petition. The court must afford the party who originally requested confidentiality an opportunity to contest this disclosure.
3. Defines an “unwarranted disclosure” of a minor’s confidential information as a disclosure that is performed either recklessly or maliciously.
4. Alters the type of prohibited use of a minor’s confidential information that is subject to sanction from any disclosure or misuse of the information to an unwarranted disclosure of the information.
5. Alters the penalty for a prohibited use of a minor’s confidential information from an order of civil contempt to a permissive sanction, while preserving the previously-specified fine of up to one thousand dollars ($1,000).
6. Exempts the minor, the minor’s legal guardian, and the party protected by the pertinent protective order from sanctions for disclosing the minor’s otherwise-protected confidential information.
7. Clarifies that information regarding a minor protected by a confidentiality order shall be included in the notice sent to the restrained party to the extent necessary for (i) enforcement of the confidentiality order and (ii) the restrained party to comply with and respond to the protective order. Alters the requirements of that notice to include a statement that disclosure is punishable by a monetary fine, rather than as a contempt of court.

EXISTING LAW:

1. Permits a family court to issue a protective order for domestic violence prevention, as specified. (Family Code Sections 6220, 6300, 6320 et seq.)
2. Requires state and local agencies to comply with the Public Records Act, but specifically exempts the judiciary from that Act. (Government Code Sections 6252, 6253.)
3. Defines a judicial record as the record or official entry of the proceedings in a court of justice or the official act of a judicial officer in an action or special proceeding. (Code of Civil Procedure Section 1904.)
4. Provides that judicial records are public documents. (See Hibernia Savings and Loan Society v. Boyd (1909) 155 Cal. 193.)
5. Provides that unless confidentiality is required by law, court records are presumed to be open. (California Rule of Court, Rule 2.550.)
6. Allows a court to order a court record to be sealed only if the court expressly finds facts that establish:
   1. There exists an overriding interest that overcomes the right of public access to the record;
   2. The overriding interest supports sealing the record;
   3. A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
   4. The proposed sealing is narrowly tailored; and
   5. No less restrictive means exist to achieve the overriding interest. (Ibid.)
7. Provides that an order sealing the record must:
   1. Specifically state the facts that support the findings; and
   2. Direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file. (Ibid.)
8. Allows a minor or the minor’s legal guardian to petition the court to make confidential certain information regarding the minor obtained when issuing a domestic violence protective order, including, but not limited to, the minor’s name, address, and the circumstances surrounding the protective order with respect to that minor. (Family Code Section 6301.5.)
9. Permits a court to order the information in 8), above, be kept confidential if the court expressly finds:
   1. The minor’s right to privacy overcomes the right of public access to the information;
   2. There is a substantial probability that the minor’s interest will be prejudiced if the information is not kept confidential;
   3. The proposal to keep the information confidential is narrowly tailored; and
   4. No less restrictive means exist to protect the minor’s privacy. (Ibid.)
10. Requires, if the court grants the request for information regarding the minor to be kept confidential, that, except as provided, the information be maintained in a confidential case file and not become part of the public file in the proceeding or any other civil proceeding. (Ibid.)
11. Makes disclosure or misuse of that confidential information punishable as a contempt of court with a fine of up to one thousand dollars ($1,000), but not by imprisonment. (Ibid.)
12. Requires that information regarding a minor protected by an order be made available to law enforcement for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System (CLETS) to the extent necessary and only for purposes of enforcing the order. (Ibid.; Family Code Section 6380.)
13. Requires, to the extent necessary for the enforcement of the order and for the restrained party to comply with and respond to the order, that information regarding a minor protected by a confidentiality order be included in the notice sent to the restrained party. Requires the notice to identify the specific information that has been made confidential and to include a statement that disclosure or misuse of that information is punishable as a contempt of court. (Family Code Section 6301.5.)
14. Sets forth procedures for courts to follow in ruling on a request for confidentiality and for protecting information when such an order is granted. (California Rules of Court 5.382.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Information about minors is inevitably disclosed during many proceedings to grant domestic violence protective orders. Existing law permits courts, on petition, to designate this information as confidential. Unfortunately, while current law authorizes certain exceptions from court-ordered confidentiality, existing exemptions are insufficient to address common real-world situations in which persons must be notified about the terms of protective orders as they apply to minors. AB 925 would allow courts to grant exceptions from confidentiality for additional purposes, and would refine the penalties for disclosure to avoid unnecessarily punishing certain types of disclosures.

Background & justification for the bill. When a survivor seeks a protective order for domestic violence prevention, court proceedings often result in disclosure of information about minors. For example, if a child’s parent seeks a protective order against another parent, court records and any resulting order may disclose the child’s name and address, and allegations of violence against the minor. AB 953 (Baker, 2017) enacted Family Code Section 6301.5 (unless otherwise noted, all subsequent statutory references are to the Family Code), which permits a minor or a minor’s legal guardian to seek a court order designating such information regarding the minor confidential. If the court grants this request, the information regarding the minor must be maintained in a confidential case file, and can only be shared (1) with law enforcement for inclusion in the Department of Justice’s California Law Enforcement Telecommunications System (CLETS) system and (2) with the restrained party. These exceptions respectively ensure that the underlying protective order can be properly enforced by law enforcement and that the restrained party understands the order. The statute imposes a penalty of $1,000 for contempt of court if the minor’s information is disclosed to any other individual.

The author writes:

The narrow scope with whom the confidential information may be shared, i.e., law enforcement and the respondent, disregards a broad range of persons who may need the confidential information to aid in the enforcement of the domestic violence restraining order. [Section] 6301.5 was codified in 2018 to extend the privacy provisions for survivors in criminal courts to family courts. However, unlike criminal protective orders, domestic violence restraining orders that are issued by a family court contain stay-away orders from the minor’s school and custody and visitation orders when the parties share a child in common. Accordingly, in a domestic violence restraining order matter, there are individuals outside of law enforcement and the respondent who may need the confidential information in order to enforce the order, including child-care providers, medical and mental-health providers, and professional and non-professional supervisors for visitation. The current law renders survivors of domestic abuse, especially survivors who are parents that share a child in common with their abusers, unable to share necessary information about the minor, including the minor’s name, with necessary third parties.

The need for additional legislation in this area has also been shown by the Judicial Council’s rulemaking process. In order to implement the provisions of Family Code Section 6301.5, the Judicial Council’s Family and Juvenile Law Advisory Committee and the Civil and Small Claims Advisory Committee jointly adopted California Rule of Court 5.382 and four forms (Judicial Council forms DV-160, DV-165, DV-170, and DV-175). As discussed below, certain comments submitted to the Judicial Council during this rulemaking, and the Judicial Council’s responses thereto, make clear the need for this bill.

A new exception from confidentiality will aid implementation of family court orders. Civil domestic violence protective orders commonly include family court orders beyond those, such as stay-away orders and move-out orders, meant to control the whereabouts of the restrained person. For example, Judicial Council form DV-130 (entitled “Restraining Order After Hearing”) includes sections addressing, among other things, child custody and visitation, child and spousal support, and debt payments. These are non-criminal orders and have portions that may need to be enforced by third parties like child care providers and therapists. These third parties need to be able to read the relevant portions of the restraining order in order to implement them. But if a confidentiality order has issued under Family Code Section 6301.5, a protected party cannot provide a restraining order that contains confidential information about the minor to third parties.

In comments to the Judicial Council, AB 925’s sponsor, the Family Violence Appellate Project (FVAP) wrote:

[Family Code Section 6301.5] disregards a broad range of persons who may need the confidential information, including the minor’s name, to aid in the enforcement of the protective order, including child-care providers, medical and mental-health providers, and professional and non-professional supervisors for visitation. (Judicial Council of California, Protective Orders: Protecting Information of People Under 18 Years Old (Sep. 21, 2018) at p. 65.)

The Judicial Council responded:

The committees…discussed the issue of other persons/entities needing to have confidential information to aid with enforcement of protective orders (e.g., schools and child care providers). The committees concluded that access to information other than [to] those listed in the statute is not permitted under the statute. Concerned stakeholders may want to seek a legislative amendment if it becomes a problem for them. (Ibid.)

AB 925 proposes to address the problem of third parties needing access to the minor’s confidential information in order to implement protective orders by adding a new subsection (3) to Section 6501.5 (d). This subsection (3) would permit the court to authorize a limited disclosure of the confidential information to designated individuals or entities either to implement the protective order, or if disclosure would be in the minor’s best interest. The illustrative list of potential recipients include educational institutions, childcare providers, medical or mental health providers, professional or nonprofessional supervisors for visitation, attorneys for the parties or the minor, judicial officers, court employees, child custody evaluators, family court mediators, and court reporters. Disclosure is allowed when in the “best interest of the minor” if potential recipients, such as family court mediators, provide family court services but are not directly responsible for “implement[ing] the protective order.” The illustrative list in the proposed subsection bears some similarity to the list of individuals who are permitted to inspect juvenile case files. (See Welfare and Institutions Code Section 827.)

Author’s amendment – deletion of the term “limited”. The proposed subsection appears to be an effective method of solving the problem identified by FVAP and the Judicial Council. There is cause for concern, however, that the term “limited disclosure,” which is not defined elsewhere in the bill, is ambiguous and may be susceptible to misinterpretation by courts. For example, a court could read the text to only authorize limited disclosures, even if the situation warranted a full or complete disclosure, say, to a therapist. In order to clarify the intent of the bill, therefore, the author proposes the following amendment:

(3) The court may authorize a limited disclosure of any portion of the confidential information to certain individuals as necessary to implement the protective order or if it is in the best interest of the minor, including, but not limited to, disclosure to educational institutions, childcare providers, medical or mental health providers, professional or nonprofessional supervisors for visitation, attorneys for the parties or the minor, judicial officers, court employees, child custody evaluators, family court mediators, and court reporters.

With this amendment, subsection (3) would be a useful and specific addition to Section 6501.5 (d).

Judges should have the flexibility, with appropriate safeguards, to authorize disclosure when necessitated by new circumstances. FVAP argues that family courts need appropriate flexibility to authorize disclosure to additional persons upon petition, writing, “Because it would be impossible for the Legislature to anticipate every person who may need the confidential information for these purposes, AB 925 entrusts trial courts with the authority to issue necessary disclosures suited to the individual circumstances of each case.” For example, the Department of Child Support Services may need to use the minor’s name in a child support proceeding brought against the restrained party. In a divorce proceeding, a protected party may need access to confidential information about abuse of the minor in order to establish the need for sole custody of the minor.

The Judicial Council has recognized this issue, writing:

The committees see this as a potential problem with this legislation, but it is outside the purview of the Judicial Council to address it. Concerned stakeholders may want to seek a legislative amendment if it becomes a problem for them. Judicial Council of California, Protective Orders: Protecting Information of People Under 18 Years Old (Sep. 21, 2018) at 66.

The bill proposes to resolve this issue by granting family courts the discretion to authorize disclosure to any person upon filing a petition if the court determines that disclosure is in the best interest of the minor. As an added safeguard, the party who originally petitioned the court to keep the minor’s information confidential would have to be served with a copy of the petition and given an opportunity to object to the disclosure. The court could then decide whether the proposed disclosure is in fact in the minor’s best interests.

Author’s amendment – clarifying the information which may be disclosed by a court. The bill appropriately recognizes that granting courts sufficient flexibility to authorize additional disclosure on a case-by-case basis is worthwhile, particularly if the court’s discretion is guided by the directive that any disclosure must be in “the best interest of the minor.” The provision allowing a party previously granted confidentiality to object to disclosure both ensures due process and increases the chances that the court will hear any countervailing considerations that might weigh against disclosure.

In order to harmonize the language of the proposed subsection (4), which would grant to the courts discretionary authority to permit disclosure, with the amendments to proposed subsection (3) described above, the author proposes the following clarifying amendment:

(4) The court may authorize disclosure of any portion of the confidential information to any person upon filing a petition if the court determines that disclosure is in the best interest of the minor. The party who petitioned the court to keep the information confidential pursuant to this section shall be served with a copy of the petition and afforded an opportunity to object to the disclosure.

This amendment should make clear that the court has the authority to tailor the scope of disclosure of the confidential information to the needs of the petitioned-for situation. With this amendment, subsection (4) would be a useful addition to Section 6501.5 (d).

The bill appropriately modifies the penalty for unauthorized disclosure in order to avoid unduly harsh consequences. The current language of Section 6301.5 (c) penalizes any disclosure or misuse of confidential information as a civil contempt of court with a fine of up to $1,000. Numerous harsh consequences potentially follow, including minors being held liable for disclosing their own information. In its sponsor letter, FVAP writes: “[A] minor who obtains a confidentiality order with their domestic violence restraining order and later discloses the circumstances related to the orders to their domestic violence advocate or counselor could be fined the $1,000 penalty.”

As in print, the bill proposes to amend Section 6301.5 (c) to address this issue in three ways. First, the bill would modify the penalty from a civil contempt of court to a sanction, though in either case punishable by an amount of up to $1,000. Second, courts could only impose the fine for unwarranted disclosure of confidential information. The term “unwarranted disclosure,” defined as reckless or malicious disclosure, will help ameliorate strict liability for disclosures made due to ordinary carelessness. Finally, AB 925 would amend Section 6301.5(c) to make clear that “[t]he minor’s legal guardian that petitioned to keep the information confidential…, the protected party in an order…, [and] the minor shall not be sanctioned for disclosure of the confidential information.” In support of the latter provision, the author notes: “Even worse, should the survivor-parent share the necessary information…the threat of strict liability of a $1,000 monetary fine may be used by the domestic abuser to further abuse the survivor-parent.”

The amendments to Section 6301.5 (c) proposed by the bill appear to be a reasonable and beneficial way to help reduce unintended harms or consequences for minors, their guardians, and protected parties. They also appear to be consistent with other provisions in existing law that govern unauthorized disclosure. For example, the term “unwarranted disclosure” is used in at least one other Family Code provision addressing misuse of confidential information. (See Family Code Section 3111 (d): “If the court determines that an unwarranted disclosure of a written confidential report has been made, the court may impose a monetary sanction against the disclosing party.”) Adapting this term from Section 3111 (d) may provide both the courts and interested parties with guidance as to appropriate penalties.

Additional points. A few additional points about AB 925 are worth noting:

• The word “order” is used twice in the first sentence of existing Section 6301.5 (d)(2), which reads, “To the extent necessary for the enforcement of the order and to allow the respondent to comply with and respond to the order, confidential information shall be included in the notice sent to the respondent pursuant to this part.” Therefore, it is unclear whether each use of the term “order” in existing law refers to confidentiality orders or to protective orders. The bill appropriately proposes to resolve this ambiguity by making clear that the respondent is to be provided the confidential information in order to enforce the confidentiality order in order to allow the respondent to comply with and respond to the protective order.
• The bill would apply only to domestic violence protective orders, not to confidentiality orders concerning civil harassment restraining orders, as authorized by Code of Civil Procedure Section 527.6 (v).

Other Related Legislation: AB 953 (Baker, Ch. 384, Stats. 2017) authorized a minor or a minor’s legal guardian to petition the court to designate as confidential information regarding the minor disclosed when issued a domestic violence protective order or a civil harassment restraining order.

REGISTERED SUPPORT / OPPOSITION:

Support

Family Violence Appellate Project (sponsor)

California Partnership to End Domestic Violence

Opposition

None on file

Analysis Prepared by: Jith Meganathan / JUD. / (916) 319-2334