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Legal Issues
Most agencies that collect data on juveniles
must follow Federal, State, and local statutes, ordinances, resolutions,
regulations, court orders, and legal opinions (Etten and Petrone, 1994).
These laws, policies, and procedures address the collection, maintenance,
and release of information. Before any interagency information-sharing
program can begin operating, it is imperative that all parties to the
partnership reveal anything that they think might interfere with their
ability to share information. For example, potential partners should identify
any laws that they think might impede their ability to share information
between or among agencies. In some cases, both Federal and State legal
barriers will limit the sharing of certain types of information without
consent or a court order. It is important to stress that in most cases,
however, there are no legal barriers to sharing information. Rather, policies
associated with these laws, or the lack thereof, may have interfered with
the sharing of information between agencies. Many of the legal or ethical
concerns associated with the informal information sharing that is already
taking place in many communities also can be overcome through the development
of a simple consent procedure or a discussion with clients of the need
to sometimes share limited amounts of confidential information (Soler,
Shotton, and Bell, 1993).
The Federal and State statutes discussed below should be considered
as information-sharing partnerships are being developed. However, it
must be emphasized that all of these laws allow programs to share information.
There are ways to appropriately share vital information within the legal
limitations that exist, and policies can be changed to encourage interagency
information sharing.
Federal Laws
Privacy Act of 1974.1
This Act applies to all records regarding individuals that are collected
by Federal agencies. It prohibits any Federal agency from disclosing,
without consent, individually identifiable records maintained in a records
system that can be retrieved by a person's name or identification number.
Although the law does allow for disclosure of records without consent
under limited circumstances, it does not authorize the parent or guardian
of a minor to consent to disclosure of a minor's medical records. However,
the minor can give consent to release records, and disclosure without
consent is allowed to other government agencies for civil or criminal
law enforcement purposes, in instances where the health or safety of
the person is endangered, or by court order. Because information-sharing
partnerships are intended to address civil or criminal law enforcement
purposes and circumstances where the health and safety of the juvenile
is endangered, information can be shared between government agencies.
Where nongovernment agencies are part of the partnership or where none
of the above-mentioned exceptions exist, a court order will allow for
the sharing of this information. Thus, this Act need not present a major
impediment to appropriate information sharing.
Correction of Youthful Offenders (1984).2
This Act requires that records of juvenile delinquency proceedings in
Federal district courts be safeguarded from disclosure to unauthorized
persons except under a variety of circumstances that fit directly into
the needs of an information-sharing program. These include inquiries
from another court of law, agencies preparing presentence reports, investigative
law enforcement agencies, treatment agencies assigned by a court, or
a victim regarding disposition of his or her case. Thus, it is unlikely
that this law will pose a barrier to the appropriate sharing of information.
Family Educational Rights and Privacy Act of 1974.3
The Family Educational Rights and Privacy Act (FERPA), also known as
the "Buckley Amendment," applies to "educational agencies and institutions"
that receive funds under any program administered by the U.S. Secretary
of Education. This includes virtually every public elementary and secondary
school and school district and also most postsecondary institutions
in the United States. FERPA protects parents' and students' privacy
interests in "education records" maintained by the agency or institution.
4 Parents or eligible students
(those who are 18 years of age or attending postsecondary institutions)
must provide a signed and dated written consent before an educational
agency or institution may release personally identifiable information
from a student's education records, except in conditions specified by
statute.
There are several specific exceptions to the prior written consent
rule under FERPA that may permit educational agencies and institutions
to share information from the education records of at-risk or delinquent
juveniles as part of a properly constructed information-sharing network.
The most pertinent of these, the Juvenile Justice System Exception,
permits nonconsensual disclosure to State and local officials or authorities
to whom the information is specifically allowed to be reported or disclosed
pursuant to a State statute if the reporting or disclosure concerns
the juvenile justice system and its ability to effectively serve the
student whose records are released.
Educational agencies and institutions may also release without consent
personally identifiable information that has been designated as "directory
information" in accordance with FERPA requirements. Directory information
includes the student's name, address, date of birth, dates of attendance
("from and to" dates of enrollment), and other general information that
is not considered an invasion of privacy if disclosed. However, directory
information does not include a student's Social Security or other identification
number. Also, parents and students have the right to refuse to allow
agencies and institutions to disclose directory information without
consent.
FERPA contains other exceptions for nonconsensual disclosure that
may be of value in establishing an information-sharing program, including
disclosures in connection with a health and safety emergency and in
compliance with a judicial order or lawfully issued subpoena. Also,
records of the law enforcement unit of an educational agency or institution
that were created and maintained for the purpose of enforcing any Federal,
State, or local laws are excluded from FERPA's definition of education
records and, therefore, from the Act's protections against nonconsensual
disclosure.
| Juvenile Justice
System Exception to FERPA
Under the Juvenile Justice System Exception, State legislators
may authorize the sharing of student information between educational
institutions and other youth-serving agencies without parental
consent or the consent of an eligible student if four conditions
are met:
- The disclosure or reporting of the records must be to a
State or local juvenile justice system agency (to be defined
by the State legislation).
- The disclosure must be based on a State statute authorizing
the disclosure.
- The State law was passed after November 19, 1974, and the
allowed reporting or disclosure concerns the juvenile justice
system's ability to effectively serve, prior to adjudication,
the student whose records are released.
- The State or local officials and authorities to whom such
information is disclosed must certify in writing to the educational
agency or institution that the information will not be disclosed
to any other party except as provided under State law without
the prior written consent of the parent of the student.
Once a State has authorized information sharing, FERPA requires
that:
- Schools maintain a record, kept with the education records
of each student, that will indicate all individuals, agencies,
or organizations that have requested or obtained access to
a student's education records maintained by such educational
agency or institution and that will indicate specifically
the legitimate interest that each such person, agency, or
organization has in obtaining this information.
- Any agency that violates the disclosure limitations shall
be prohibited from obtaining access to information from education
records for a period of not less than 5 years.
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Thus, FERPA allows for the sharing of information
under a variety of circumstances—with parental or eligible student
consent, by judicial order or subpoena, in accordance with a State statute
that allows for sharing, or in a health and safety emergency—and
should not pose a problem for the sharing of information from schools
to other agencies participating in an information-sharing program. Furthermore,
FERPA does not impede, in any way, a school from receiving information
from any other participant in such a program. 5
Computer Matching and Privacy Protection Act of 1988.
6 This Act mandates that computer records can
be disclosed only to a Federal agency in a computer-matching program
except pursuant to a written agreement specifying the purpose for collection
of the information and procedures for ensuring its security. This includes
any item, collection, or grouping of information—educational, financial,
medical, criminal, or occupational—identifying an individual that
is maintained by a Federal agency. Other communications are allowable,
including those pursuant to a court order, those for a government agency
for civil or criminal law enforcement activity, and those for a person
showing compelling circumstances of a risk to health or safety (Soler,
Shotton, and Bell, 1993). Thus, as with the other Federal laws described
here, this Act does not present a significant barrier to sharing information
in an interagency partnership.
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment
and Rehabilitation Act (1970)7
and Drug Abuse and Treatment Act (1972).
8 These Acts specifically apply to the confidentiality
of patient records in alcohol or drug abuse programs receiving Federal
assistance. The programs and practitioners covered by these Acts include
but are not limited to treatment or rehabilitation programs, programs
within general hospitals, school-based programs, and private practitioners
who hold themselves out as providing alcohol or drug abuse diagnosis,
treatment, or referral for treatment (42 CFR 2.12, 1998). These laws
prohibit the release of patient record information, either verbally
or in writing, except under limited circumstances.
Generally speaking, a program or practitioner cannot release any information,
directly or indirectly, that identifies a person in the program and
cannot acknowledge the presence of an individual in the program. But
patient record information can be released under the following exceptions:
- It will be used in internal communications between or among those
with a legitimate interest who need the information in connection
with their duties that arise out of the provision of diagnosis, treatment,
or referral for treatment of alcohol or drug abuse if the communications
are within the program or between a program and an entity that has
direct administrative control over the program.
- It relates to a medical emergency requiring assistance.
- It relates to research or an audit of the program or service.
- It relates to a crime on the premises involving drug use or a mental
condition.
- It relates to reports of suspected child abuse and neglect.
- A court order has been obtained.
- It will be used by qualified organizations providing services to
the program.
- Proper consent, by way of a criminal justice consent form, has
been obtained from the individual in the program (in the case of a
minor, the consent must be obtained from either the patient, the parents,
or both). This consent must be in writing and must contain each of
the following items:
- The name and general description of the program(s) making the
disclosure.
- The name of the individual or organization that will receive
the disclosure.
- The name of the patient who is the subject of the disclosure.
- The purpose or need for the disclosure.
- How much and what kind of information will be disclosed.
- A statement regarding revocation of consent.
- The date, event, or condition upon which the consent will expire.
- The signature of the patient.
- The date on which the consent is signed.
The requirements regarding consent for the sharing of information among
treatment programs and criminal justice agencies are somewhat unusual
and strict but must be carefully followed. A general medical release form,
or any consent form that does not contain all of the elements listed above,
is not acceptable. Whenever possible, it is best to have a proper criminal
justice system consent form signed by the defendant before he or she is
referred to the treatment program. All disclosures, and especially those
made pursuant to a consent form, must be limited to information that is
necessary to accomplish the purpose for the disclosure (§ 2.13(a)).
It would be improper to disclose everything in a defendant's file if the
recipient of the information needs only one piece of information.
It is important to note that these two laws and regulations prohibit
the use of information obtained from patient records to initiate or
substantiate any criminal charges against a patient or to conduct any
criminal investigation of a patient, regardless of the status of the
person obtaining the information or of whether the information was obtained
in accordance with these regulations (42 CFR § 2.12, 1998). Finally,
if a patient's alcohol or drug abuse diagnosis, treatment, or referral
for treatment is not provided by a program that is federally conducted,
regulated, or supported, that patient's record is not covered by these
regulations. It is, therefore, possible for an individual patient to
benefit from Federal support yet not be covered by these confidentiality
regulations, because the program in which the patient is enrolled is
not federally assisted. The above-mentioned special exemptions for information
under these Acts (especially the court order) should provide information-sharing
programs with the tools necessary to obtain the information they need.
Thus, these laws should not present a barrier to such a partnership.
Child Abuse Prevention and Treatment and Adoption Reform Act (1977).
9 This Act protects the confidentiality
of children's records listed in the child protective services files
of agencies that want to remain eligible for Federal funds. Under this
Act, the right to confidentiality must be balanced with the need to
ensure the accuracy and currency of the information. States may draft
legislation complying with this Act that provides records access by
(Etten and Petrone, 1994):
- Local child protective services.
- Law enforcement officers investigating reports of abuse or neglect.
- Persons legally authorized to place children in protective custody.
- Physicians, parents, guardians, or supervisory agencies.
- Courts, so long as the review is limited to an in camera
inspection.
- Grand juries.
Moreover, consent by the child would also allow the release of this
information.
In general, juvenile records relating to court dispositions, school
information, child abuse, and drug/alcohol treatment can be released
under specific circumstances to interested parties. In fact, almost
all of these laws permit the sharing of information by obtaining the
consent of the individual to whom the information pertains. Thus, Federal
statutes provide sufficient flexibility to permit interagency information
sharing in appropriate circumstances while protecting the confidentiality
of juveniles and their families.
State Laws
In addition to Federal statutes that may impact the establishment
and maintenance of interagency information-sharing networks, State statutes
also must be considered. Each agency group interested in establishing
this type of network will need to identify State laws that govern the
collection, use, and dissemination of juvenile records by juvenile justice
and other juvenile-related agencies. Specifically, these laws will include
but may not be limited to those governing law enforcement records, school
records (a State-level codification of FERPA), juvenile court records
(legal and social), child protective services and other youth-serving
agency records, and mental health records.
Some States treat juvenile court records as public information (see,
for example, Washington Revised Code 12.50.050; 13.50.010). Other States
permit access to court records only by the juvenile and agencies directly
involved in the juvenile justice system. Most States use a method of
conditional disclosure of juvenile court records in which a judge issues
a court order that permits access to agencies that are not part of the
juvenile justice system (see, for example, Pennsylvania Revised Code
6307; 6308). Most State codes do not address procedures for verbal exchanges
of information and, for the most part, recognize the right of service
providers to share confidential information verbally (Etten and Petrone,
1994).
In the past several years, many State legislatures have reconsidered
their laws concerning juvenile records, making them more flexible in
order to allow youth-serving agencies to comprehensively address juveniles
who have committed serious or violent offenses. In fact, since 1992,
40 of the 50 State legislatures and the District of Columbia have made
substantive changes to their laws relating to the confidentiality of
juvenile records or proceedings (Torbet et al., 1996). Relevant statutes
can be identified in a number of ways. The most efficient approach is
to access either a Lexis/Nexis or Westlaw database
10 in order to identify relevant State statutes
through a keyword search. Alternatively, each State's codes are available
in any law library. It will likely be most effective to assign a representative
from the juvenile justice side of the partnership to determine which
laws are relevant to the partnership.
Finally, in addition to identifying the statutes that impose legitimate
constraints on establishing and maintaining interagency information-sharing
programs, each group will need to identify policies that restrict or
limit information sharing. Policies, while often based on laws, are
much easier to change. After determining the applicable State laws in
each of these areas, it is important to assess implementation policies
and practices related to or derived from these laws to see if they inappropriately
hinder the ability of agencies to share information with each other.
In many instances, policy and practice, not laws, may impede the sharing
of information. In either case, both law and policy may need to be changed
to increase access to information.
1. 5 U.S.C. § 522 (a); 1 CFR §
425.1 et seq.
2. 18 U.S.C. ¤5038.
3. 20 U.S.C. § 1232g; 34 CFR
Part 99.
4. Education records are defined
as any information recorded in any way—including
handwriting, print, computer media, video or
audio tape, microfilm, and microfiche—that is
directly related to a student and maintained
by an educational agency or institution or by a
party acting for the agency or institution.
5. OJJDP has published a guide to
FERPA called Sharing Information: A Guide to the Family
Educational Rights and Privacy Act and Participation
in Juvenile Justice Programs
(NCJ 163705).
6. 6 5 U.S.C. § 552a.
7. 42 U.S.C. § 4541 et seq.
8. 42 U.S.C. § 290dd-2; 42 CFR
§ 2.1 et seq.
9. 42 U.S.C. § 510a(b)(4); 45
CFR § 1350.14(j)
10. Lexis/Nexis and Westlaw are
comprehensive online legal databases that provide access to
State and Federal legislation and case
law and also other law-related documents.
| Establishing and Maintaining
Interagency Information Sharing |
JAIBG Bulletin
· March
2000 |
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