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Councilmember Sandra Allen A BILL IN THE
COUNCIL OF THE DISTRICT OF COLUMBIA
To amend, on an emergency basis, due to Congressional review, the Prevention of Child
Abuse and Neglect Act of 1977 to provide the Mayor, his designee and the Director of Child
and Family Services Agency with the authority to release findings and information
regarding a child fatality or near fatality unless such disclosure would likely endanger
the life, or physical or emotional well-being of a child, to provide for immunity to the
District of Columbia and individuals charged with making disclosure, and to permit civil
actions in the Superior Court to compel disclosure.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as
the "Public Disclosure of Findings and Information in Cases of Child Fatality or Near
Fatality Congressional Review Emergency Amendment Act of 2001".
Sec. 2. The Prevention of Child Abuse and Neglect Act of 1977, effective September 23,
1977 (D.C. Law 2-22; D.C. Code § 6-2101 et seq.), is amended as follows:
(a) Section 306(c) is repealed.
(b) A new section 308 is added to read as follows:
"Sec. 308. Public disclosure of findings and information in cases of child
fatality or near fatality.
"(a) For the purposes of this section, the term:
"(1)(A) "Agency" shall have the same meaning prescribed in section 3(3)
of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82
Stat. 1204; D.C. Code § 1-1502(3)), except that the term "agency" shall
include:
"(i) The Social Services Division of the Superior Court of the District of
Columbia; and
"(ii) The Child and Family Services Agency, whether under the administrative
control of the Mayor or the court-appointed receiver.
"(B) The term "agency" does not include the executive branch of the
federal government, its agencies, officials, and employees.
"(2) "Child fatality" means:
"(A) The death of a child as a result of child abuse, neglect, or maltreatment, as
certified by a physician, or the Chief Medical Examiner of the jurisdiction in which the
child died or where the autopsy was performed; or
"(B) The death of a child where the Chief Medical Examiner cannot rule out child
abuse, neglect, or maltreatment as contributing to the cause of death.
"(3) "Disclosing official" means:
"(A) The Mayor or such other official or officials of the District as the Mayor
may from time to time designate in writing to perform the functions under this section;
and
"(B) The Director of the Child and Family Services Agency.
"(4) "District" means the District of Columbia. "(5) "Findings
and information related to a child fatality or near fatality" means:
"(A) All public records in the possession of any officer or agency of the District
that pertain to a child fatality or near fatality, or that are compiled, received, or
created in the course of any investigation, assessment, or review conducted in connection
with a child fatality or near fatality; and
"(B) A written summary that includes, to the extent possible, all of the following
information pertaining to a child fatality or near fatality:
"(i) The name of the child, except that the name of the child shall not be
disclosed in a case of a near fatality unless the name has otherwise previously been
disclosed;
"(ii) The name of the parent or other person legally responsible for the child,
except that the name of the parent or other person legally responsible for the child shall
not be disclosed in a case of a near fatality unless the name has otherwise previously
been disclosed;
"(iii) Confirmation of the receipt of all reports, accepted or not accepted, by an
agency of the District for investigation or assessment of suspected child abuse, neglect,
or maltreatment, including confirmation that investigations or assessments were conducted;
the results of the investigations or assessments; a description of the conduct of the most
recent investigation or assessment and the services rendered; and a statement of the basis
for the agency's determination;
"(iv) The basis for any finding of either abuse or neglect, including the results
of any review of the Child Fatality Review Committee, a community child protection team,
or any public agency;
"(v) Identification of child protective or other services provided to or any
actions taken by any agency regarding the child, including the dates, outcomes, and
results of any services provided and any actions taken;
"(vi) Any actions taken by any agency in response to reports or allegations of
abuse or neglect of the child, including the dates, outcomes, and results of any actions
taken; and
"(vii) Other pertinent information concerning the circumstances of any abuse or
neglect of the child and the investigation of such abuse or neglect.
(C) The term "findings and information" shall not include criminal
investigation records until each case involving the child fatality or near fatality is
disposed of by way of a sentence, a verdict of not guilty, or a finding of not guilty by
reason of insanity, or the United States Attorney certifies in writing to the disclosing
official that the investigation has been concluded or has been suspended for an indefinite
time, and that an imminent criminal prosecution is not contemplated.
"(6) "Near fatality" means a child in serious or critical medical
condition as a result of child abuse, neglect, or maltreatment, as certified by a
physician.
"(7) "Personal or private information" means information about an
individual's personal relationships, sexual preference or conduct, economic or financial
needs or status, physical or mental health, substance use or abuse, work or school
records, religious beliefs, or political opinions unless such personal or private
information is directly related to the cause of the child fatality or near fatality.
"(8) "Public record" shall have the same meaning prescribed in section
3(18) of the District of Columbia Administrative Procedure Act, approved October 21, 1968
(82 Stat. 1204; D.C. Code § 1-1502(18)).
"(b)(1) Notwithstanding any other provision of law, a disclosing official shall
upon written request by any person, and may upon his or her own initiative, disclose to
the public the findings and information related to a child fatality or near fatality,
except as provided in paragraph (2) of this subsection.
"(2) Paragraph (1) of this subsection shall not apply:
"(A) For 6 months following a child fatality or near fatality if the United States
Attorney certifies in writing to the disclosing official that there is an ongoing criminal
investigation or prosecution pertaining to the child fatality or near fatality. If the
United States Attorney certifies in writing to the disclosing official that the
investigation or prosecution of the child fatality or near fatality is still ongoing at
the end of this 6-month period, the period shall be extended for an additional 6 months.
The issuance of a statement by the United States Attorney that an investigation has been
concluded or has been suspended for an indefinite time, and that an imminent criminal
prosecution is not contemplated, shall terminate the waiting period at any time;
"(B) To the disclosure of any portion of the findings or information if disclosure
of that portion would likely:
"(i) Endanger the life, physical safety, or physical or emotional well-being of
the child who is the subject of the findings and information or a child who is a sibling
of such child or has shared the same household as such child;
"(ii) Endanger the life or physical safety of any person;
"(iii) Interfere with an ongoing law enforcement investigation or proceeding
pertaining to the child fatality or near fatality;
"(iv) Deprive a person of a right to a fair trial or an impartial adjudication;
"(v) Disclose the identity of any person who reported suspected abuse, neglect, or
maltreatment to the Metropolitan Police Department or the Child and Family Services
Agency, or the identity of any confidential law enforcement source in a criminal
proceeding pertaining to the child fatality or near fatality;
"(vi) Disclose the identity of a birth parent of a child, if the child has been
adopted and there has been no contact between the child and the birth parent immediately
prior to the fatality or near fatality; or
"(vii) Disclose personal or private information; and
"(C) To records or information submitted to the Child Fatality Review Committee by
non-governmental entities.
"(3) Any reasonably segregable portion of a public record shall be provided to any
person requesting such record after deletion of those portions which may be withheld from
disclosure under paragraph (2) of this subsection.
"(c)(1) The disclosing official shall either make the requested findings or
information related to a child fatality or near fatality accessible to the person making
the request or send the person a letter of denial explaining the disclosing official's
determination to withhold all or any portion of the requested findings or information
within 30 days of receipt of the request by the disclosing official. A letter of denial
shall contain at least the following:
"(A) The specific reasons and legal authority for the denial or decision to
withhold and
"(B) Notification to the requestor of any right to appeal.
"(2) The disclosing official shall make good faith efforts to notify persons whose
names and records are requested before releasing the findings and information. The
disclosing official shall notify the United States Attorney at least 10 days before the
disclosing official releases the findings and information.
"(3) Any failure on the part of the disclosing official to comply with a request
under this section within the time provision of paragraph (1) of this subsection shall be
deemed a denial of the request, and the person making the request shall be considered to
have exhausted his or her administrative remedies with respect to that request.
"(d)(1) Any person who has submitted a request to the disclosing official to
release findings and information under this section, and whose request has been denied in
whole or in part, may bring a civil action in the Superior Court for the District of
Columbia ("Superior Court:) to compel the disclosing official to release the findings
and information as requested.
"(2) A suit filed under this subsection shall be set for hearing by the Superior
Court at the earliest practicable time and shall be given all possible expedited
treatment.
"(3) In any suit filed under this subsection, the Superior Court may order the
production of any findings or information improperly withheld from the person seeking
disclosure.
"(4) The burden is on the disclosing official to sustain his or her action. The
court shall determine the matter de novo, and may examine the contents of the requested
findings and information in camera to determine whether the findings and information, or
any part thereof, shall be withheld under subsection (b)(2) of this section.
"(e) The District, the disclosing official, and any agencies, committees,
officials, officers, employees, or attorneys of the District authorized by the disclosing
official to assist the disclosing official with his or her responsibilities and duties
under this section shall have full immunity from any civil or criminal liability relating
to a decision made in good faith to disclose findings and information related to a child
fatality or near fatality under this section.
"(f) Nothing in this section shall limit or restrict any right of access or
disclosure that any person may have under title II of the District of Columbia
Administrative Procedure Act, effective March 25, 1977 (D.C. Law 1-96; D.C. Code §§
1-1521 through 1-1529) ("Freedom of Information Act"). Section 306 of the
Prevention of Child Abuse and Neglect Act of 1977, December 18, 1979 (D.C. Law 3-29; D.C.
Code § 6-2126) shall not provide a basis for denying any request under the Freedom of
Information Act for any public record pertaining to a child fatality or near fatality.
"(g) The Mayor shall, pursuant to title I of the District of Columbia
Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Code §
1-1501 et seq.), issue rules to implement the provisions of this section. The rules issued
pursuant to this subsection shall be transmitted to the Council within 30 days of the
effective date of the Public Disclosure of Findings and Information in Cases of Child
Fatality or Near Fatality Emergency Amendment Act of 2000, effective August 14, 2000 (D.C.
Act 13-428; 47 DCR 7451), for a 45-day period of Council review, excluding days of Council
recess. If the Council does not approve or disapprove the rules within the 45-day review
period, the rules shall be deemed approved.".
Sec. 3. Fiscal impact statement.
The Council finds there is no fiscal impact.
Sec. 4. This act shall take effect following approval by the Mayor (or in the event of
veto by the Mayor, action by the Council to override the veto) and approval by the
Financial Responsibility and Management Assistance Authority as provided in section 203(a)
of the District of Columbia Financial Responsibility and Management Assistance Act of
1995, approved April 17, 1995 (109 Stat. 116; D.C. Code § 47-392.3(a)), and shall remain
in effect for no longer than 90 days, as provided for emergency acts of the Council of the
District of Columbia in section 412(a) of the District of Columbia Home Rule Act,
approved December 24, 1973 (87 Stat. 788; D.C. Code § 1-229(a)). |
