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AGO 1992 No. 9 - June 04, 1992
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

DEPARTMENT OF SOCIAL AND HEALTH SERVICES--JUVENILE COURTS--CHILDREN--PUBLIC RECORDS--Public Disclosure of Records of Substitute Care Citizen Review Boards

1.  The Legislature created a citizen review board system that functions in an advisory capacity to the juvenile courts, the Department of Social and Health Services, and the Legislature.  The records of each board are the property of the board.  The records must be retained for at least six years unless adequate copies or reproductions are preserved or the board demonstrates to the local records committee that retention of such records for six years is unnecessary and uneconomical.

2.  The records are confidential and may only be disclosed when specifically authorized under the statutes protecting the records of juvenile justice or care agencies found in chapter 13.50 RCW.

3.  The board need not prepare a transcript of its review, so long as a verbatim record is maintained.

                                                                   * * * * * * * * * *

                                                                    June 4, 1992

The HonorableEllen Craswell
State Senator, District 23
Post Office Box 0423
Olympia, Washington   98504-0423
                                                                                                                   Cite as:  AGO 1992 No. 9

Dear Senator Craswell:

            By letter previously acknowledged, you requested our opinion about the duty imposed on substitute care citizen review boards by RCW 13.70.090(2) to "keep accurate records, including a verbatim record of board reviews, and retain these records."  We paraphrase your questions:

            1.         Who owns the records?  Where should the records be physically located and stored, and how long must they be kept?
            2.         Who has the right to request a copy of the record?
            3.         Is the board required to transcribe recordings of the review if requested to do so?  If so, can the board charge a fee for transcriptions and copies of tapes of the review?

                                                              BRIEF ANSWERS

            The records of the substitute care citizen review boards are the property of each board.  Each board must keep custody of the records of its review in the offices where the records were filed.  The records must be retained for at least six years unless adequate copies or reproductions are preserved or the board demonstrates to the local records committee that retention of such records for six years is unnecessary and uneconomical.

            The substitute care citizen review board's records are considered confidential and may only be disclosed when specifically authorized under the statutes protecting the records of juvenile justice or care agencies, found in chapter 13.50 RCW.  Under these provisions, certain individuals may be entitled to inspect the records for specific purposes, while others may be entitled to copies of them.

            The substitute care citizen review board need not prepare a transcript of its review, as long as a verbatim record is maintained.  To satisfy requests for copies of a board's review pursuant to the provisions of chapter 13.50 RCW, the board can make copies of the tape recordings or untranscribed court reporter notes, which the requester can have transcribed at his or her own expense.

                                                                BACKGROUND

            The Legislature enacted chapter 13.70 RCW in 1989 to create a citizen review board system that would function in an advisory capacity to the juvenile courts, the Department of Social and Health Services (DSHS), and the Legislature.[1]RCW 13.70.003.  The purpose of the citizen review board system is to provide for periodic review of cases involving substitute care of children, to improve the quality of review over such cases, and to provide a means for local community involvement in monitoring the placement of children in substitute care.  Id.  To facilitate these purposes, the substitute care citizen review board is not subject to the procedures and standards usually applicable to judicial and administrative hearings, except as otherwise specifically provided in chapter 13.70 RCW and in dependency and custody proceedings under RCW 13.34.130 and RCW 26.44.115.  Id.

            The substitute care citizen review board is appointed by the county juvenile court, and each board shall have five members with three constituting a quorum.  RCW 13.70.030.  Members must be domiciled in the county in which the board presides.  RCW 13.70.040(7).  Board members must receive at least 16 hours of training established and approved by the supreme court, and administered by the Office of the Administrator for the Courts.  RCW 13.70.005, .020(2), .050.

            The board reviews cases assigned by the county juvenile court when a child has been placed in substitute care either by written consent of the parent, or under a dependency proceeding pursuant to chapter 13.34 RCW.  RCW 13.70.100, .110.  Within 90 days after a child has been placed in substitute care, the board must review the case plan regarding the child's placement.  RCW 13.70.100(4), .110(3).[2]After reviewing the plan, the board must make written findings and recommendations with regard to the appropriateness of continuing substitute care for the child, and whether progress in following the plan or returning the child to its home has been made.  RCW 13.70.100(5), .110(4).  The board must send a copy of its findings and recommendations to the child (if mature enough to participate), the child's parents or custodians and their attorneys, and to DSHS and any other child placement agency responsible for supervising the child's placement.  RCW 13.70.100(6), .110(5).

            Within 10 days of receiving the board's recommendations regarding the case plan, DSHS must either implement the recommendations or explain why it is unwilling or unable to do so in its implementation report.  RCW 13.70.100(7), .110(6).  If the substitute care results from dependency proceedings under chapter 13.34 RCW, the board must then either conduct further review of the case, or submit its findings and recommendations to the court along with the DSHS implementation reports, if any.  RCW 13.70.110(7).  If the board's recommendations are different from the existing court ordered case plan, the board shall also file a motion for a review hearing.  Id.  The court must review the findings and recommendations, and the implementation plan, and may also schedule a review hearing.  RCW 13.70.110(8).  The juvenile court will not review the findings and recommendations of a citizen review board when the substitute care results from parental consent, unless a dependency petition has been filed.  RCW 13.70.100(8).

                                                                    ANALYSIS

            Question 1:

            Who owns the records?  Where should the records be physically located and stored, and how long must they be kept?

            Public records created by state agencies and local government agencies in the transaction of public business are subject to the record retention provisions of the Preservation and Destruction of Public Records Act, chapter 40.14 RCW.  See RCW 40.14.010; WAC 414-08-020.  Chapter 40.14 RCW sets out different procedures for state records and records of county, municipal and other local government agencies.

            For the purposes of this legislation, the substitute care citizen review board is a local government agency because it is set up by the Office of the Administrator of the Courts on a county by county basis and appointed by the county juvenile court.  See RCW 13.70.005, .030.  See also RCW 13.70.010 ("'[b]oard' means the local citizen review board established pursuant to this chapter [13.70 RCW]") (emphasis added); WAC 414-08-010 ("'[a]gency' means any county, city, district or other political subdivision or municipal corporation or any department, office, commission, court or board or other local governmental agency, however designated")(emphasis added).  Regulations promulgated by the local records committee pursuant to RCW 40.14.070 of the Preservation and Destruction of Public Records Act provide for the custody of records of local government agencies.  WAC 414-12-010 provides as follows:

                        All public records shall be and remain the property of the agency.  They shall be delivered by outgoing officials and employees to their successors and shall be preserved, stored, transferred, destroyed, and otherwise managed, only in accordance with the provisions of chapter 40.14 RCW or as otherwise provided for by law.

Thus, the records created by the substitute care citizen review board are the property of the board and must be preserved, stored, transferred and destroyed only in accordance with the provisions of chapter 40.14 RCW and the regulations adopted thereunder.

            RCW 13.70.090(2) provides that the substitute care citizen review board "shall keep accurate records, including a verbatim record of board reviews, and retain these records."  Since the statute requires the board to keep accurate records and to retain them, the duty to maintain the records of board reviews is imposed on each local board.  WAC 414-12-020 provides for the custody of such records as follows:

                        Unless otherwise provided by law public records must remain in the custody of the office in which they were originally filed, which shall be considered the office of record, or should be destroyed or transferred pursuant to instructions from the local records committee as required by chapter 41.40 [sic] RCW.  They shall not be placed in the custody of any other person or agency, public or private, or released to individuals, except for disposition pursuant to law or unless otherwise expressly provided by law or by these regulations.

Thus, the records of each substitute care citizen review board must be kept in the office of record of each board.

            Since records are defined in RCW 13.70.010(11) to include any information in written form, pictures, photographs, charts, graphs, recordings, or documents pertaining to a case, as well as the verbatim record of the board reviews, each board should be prepared to dedicate sufficient space to store what could eventually become a significant volume of evidence in the record of each review.  Furthermore, RCW 13.50.010(3)(b) (discussed below in Question 2) requires each board to take reasonable steps to ensure the security of its records and prevent tampering with them.  Thus, the space designated for storage of the records must be secure from unauthorized inspection or tampering.

            RCW 40.14.070 provides that records of local government agencies may not be destroyed unless they are noncurrent and have no further administrative or legal value.  Thus, the substitute care citizen review board must preserve its records of active files until such time as they are officially closed.  RCW 40.14.070 also provides that public records may not be destroyed until they are over six years old unless the agency either preserves an adequate copy of the original (i.e., on microfiche or microfilm), or demonstrates that the retention of the records for six years is unnecessary and uneconomical. 

            Destruction of public records must be approved by the Division of Archives and Records Management under RCW 40.14.070.  However, this statute also allows for the establishment of a local records committee in lieu of the Division of Archives and Records Management to approve destruction of records of a local government agency.  RCW 40.14.070; WAC 414-24-020.  The local government agency may establish a records control program with the approval of the local records committee to destroy records on a recurring disposition schedule.  WAC 414-24-040, -050.  Thus, the substitute care citizen review board has three options in regard to the length of time it must retain the records of its reviews:

            1)         It may preserve the records for at least six years or until the juvenile's case file is officially closed, whichever is later; or
            2)         It may demonstrate to the local records committee or Division of Archives and Records Management, as the case may be, that preservation of the records of closed cases for six years is unnecessary and uneconomical; or
            3)         It may preserve copies of the records on microfiche or microfilm and then destroy the originals.

In no event should the records be destroyed without the concurrence of the local records committee.

            Question 2:

            Who has the right to request a copy of the record?

            Chapter 13.50 RCW governs the retention and disclosure of records by juvenile justice or care agencies.  Juvenile justice or care agencies are defined in RCW 13.50.010(a) as follows:

                        "Juvenile justice or care agency" means any of the following:  Police, diversion units, court, prosecuting attorney, defense attorney, detention center, attorney general, the department of social and health services and its contracting agencies, and persons or public or private agencies having children committed to their custody[.]

(Emphasis added.)

            The substitute care citizen review board should probably be considered a juvenile justice or care agency for the purposes of chapter 13.50 RCW, even though it is not specifically listed in the definition.  The citizen review board system was created by the Legislature to serve in an advisory capacity to the juvenile courts and to DSHS, both of which meet the definition of a juvenile justice or care agency.  See RCW 13.50.010(a), 13.70.010.  The board has access to otherwise confidential information about the child and its parents in the records of the court, DSHS, and any other agency or entity such as an agency responsible for the child's placement.  RCW 13.70.070.  Copies of these records will become part of the substitute care citizen review board records.  RCW 13.70.010(11).  The members of the board must take an oath of confidentiality.  RCW 13.70.060.  Copies of the findings and recommendations made by the board in a review of a dependency proceeding case become part of DSHS records and the juvenile court's social file maintained under RCW 13.50.010(c).  RCW 13.70.110(10).  Thus, the protection of the confidentiality of records relating to juvenile justice or care agencies provided by chapter 13.50 should also extend to records of the substitute care citizen review board.

            RCW 13.50.100 protects all juvenile justice and care records which do not relate to the commission of a juvenile offense.  Id. at (1).  Thus, all records regarding a juvenile's placement in substitute care would be protected by this statute.  RCW 13.50.100(2) establishes that records covered under this statute are confidential, and can only be released when authorized by this provision and RCW 13.50.010.[3]   RCW 13.50.010 authorizes disclosure of juvenile justice or care agency records only under the following circumstances:

            1)         Any person who has reasonable cause to believe that information concerning him or her is included in the records, may petition the court for an order authorizing "inspection", unless the court determines that it is not in the best interest of justice or of the juvenile to allow disclosure.  RCW 13.50.010(5).

            2)         Any person may also petition the court for an order authorizing correction or destruction of information in the file, if he or she can demonstrate that such information concerning him or her is inaccurate.  RCW 13.50.010(6).

            3)         The court may permit "inspection" of the records or "release" of information in them, to a clinic, hospital or other agency which has the subject person under their care or treatment.  RCW 13.50.010(8).

            4)         The court may also permit "inspection" of records or "release" of the information in them to individuals or agencies conducting legitimate research for educational, scientific or public purposes, as long as the anonymity of the persons named in the records is preserved.  RCW 13.50.010(8).

            RCW 13.50.100 permits disclosure of records to the juvenile, his or her parents, their attorneys and to other juvenile justice or care agencies, under certain circumstances:

            1)         A juvenile justice or care agency may "release" information in its records to any other juvenile justice or care agency only to facilitate an investigation involving the juvenile, or when such agency has the juvenile under its supervision.  RCW 13.50.100(3).

            2)         The juvenile, his or her parents, and their respective attorneys may be given "access" to the juvenile's records except when the juvenile justice or care agency determines that release of the information would cause severe psychological or physical harm to the juvenile or his or her parents.  RCW 13.50.100(4)(a).  The agency may also deny disclosure to the juvenile's parents if the records relate to psychological counseling or medical services provided to the juvenile which the juvenile has a right to receive without the parent's consent, unless the juvenile consents to the disclosure.  RCW 13.50.100(4)(b).  An individual who has been denied "access" to any records under these provisions may petition the court for an order allowing "access".  RCW 13.50.100(5).  However, the court may place conditions or limitations on the "release" of such information if appropriate.  RCW 13.50.100(4)(a).

            3)         Any party to a dependency proceeding or a proceeding seeking the termination of a parent-child relationship as well as any party's attorney or guardian ad litem, may have "access" to the agency's records relating to the juvenile, subject to the rules of discovery in civil actions, and the same limitations in RCW 13.50.100(4)(a) and (b).  RCW 13.50.100(7).

            4)         General information in the agency's records may be "released" to the public only when that information could not reasonably be expected to identify the juvenile or the juvenile's family.  RCW 13.50.100(8).[4]

            Question 3:

            Is the board required to transcribe recordings of the review if requested to do so?  If so, can the board charge a fee for transcriptions and copies of tapes of the review?

            RCW 13.70.090(2) requires the substitute care citizen review board to keep a verbatim record of board reviews.  This would require the board reviews to be taken down word for word.  SeeState ex rel. Bain v. Clallam Cy. Bd. of Cy. Comm'rs, 77 Wn.2d 542, 544, 463 P.2d 617 (1970)(verbatim means word for word).  Since there is no method specified in the statute, a verbatim record can be achieved by either a tape recorder, or by stenographic method such as a court reporter.

            There is no requirement in the statute that the record of the board reviews be transcribed.  Furthermore, there would never be any official need for a transcript of the board reviews since only the written findings and recommendations are subject to review by the court.  See RCW 13.70.003, .110(8).

            The general rule is that to facilitate judicial review of an administrative decision, a "verbatim record" means a transcribed, typewritten record.  SeeBennett v. Board of Adjustment of Benton Cy., 23 Wn. App. 698, 700, 597 P.2d 939 (1979).  However, absent a statutory duty to create a transcript of a record, or the need for a transcript to facilitate judicial review, there is no requirement that a verbatim record be transcribed.  SeegenerallyZoutendyk v. Washington State Patrol, 95 Wn.2d 693, 696-97, 628 P.2d 1308 (1981).  Thus, the substitute care citizen review board need not prepare a transcript of its reviews, as long as a verbatim record is maintained.  To satisfy requests for copies of the board reviews pursuant to the provisions of chapter 13.50 RCW, the board can have copies made of the tape recordings or untranscribed court reporter notes, which the requester can have transcribed at his or her own expense.[5]

            We trust this opinion will be of assistance to you.

                                    KENNETH O. EIKENBERRY
                                    Attorney General

                                    GEOFFREY G. JONES
                                    Assistant Attorney General

KOE:GGJ:aj


    [1]       The original legislation in 1989 created only a pilot program to be administered in at least one class 1 or higher county, which was to expire on June 30, 1991.  RCW 13.70.005, .900; Laws of 1989, 1st Ex. Sess., ch. 17, §§ 2, 19, pp. 2857, 2867.  However, the act was amended in 1991 to make it permanent in all counties designated by the Office of the Administrator for the Courts, within funding provided by the Legislature.  Laws of 1991, ch. 127, § 2, p. 649.

    [2]       After the initial review, the board must review the case plan again within six months of the child's placement in substitute care and again within one year, and make new written findings and recommendations, unless the child has been returned home or adopted.  RCW 13.70.100(4), .110(3).

    [3]       The statutes governing disclosure of records of juvenile justice or care agencies found in chapter 13.50 RCW use the terms "release" of information, "access" to records, and "inspection" of records, without defining these words.  However, the statutes may imply a distinction between these terms depending on the substantive rights of the person seeking disclosure of the record.  See, e.g., RCW 13.50.010(8).  When terms are not defined in a statute, the terms must be accorded their plain and ordinary meaning unless a contrary intent appears.  Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 479-80, 745 P.2d 1295 (1987).  A nontechnical statutory term may be given its dictionary meaning.  State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990).

            The word "inspection" in its ordinary meaning, and as it is used in chapter 13.50, implies only a right to examine records without the right to remove or have copies of them.  See Webster's Third New International Dictionary 1170 (1961).  The term "release", from its context in chapter 13.50, and in its ordinary meaning, seems to connote a greater right to free use of the information in the records.  Id. at 1917.  The term "access", as used in chapter 13.50 RCW, seems to encompass both "inspection" of records and "release" of information.  Thus, it may be presumed that the Legislature only intended to give a person seeking disclosure of information in records of juvenile justice or care agencies the right to have copies of such records, when it afforded them a right to "release" or have "access" to such information.

            The distinction between the right to inspect and the right to copy records is consistent with case law involving other disclosure statutes.  SeeHudgens v. Renton, 49 Wn. App. 842, 746 P.2d 320 (1987), review denied, 110 Wn.2d 1014 (1988) (RCW 10.97.080 prohibits copying of some criminal records, but not their inspection).  However, as a practical matter, such a distinction increases the danger that a person who has been permitted to examine a record, but not copy it, will have an unreliable recollection of its content.  Therefore, this distinction should be limited to the context of juvenile court records because of the legislative policy favoring protection of such records and allowing expungement of such records to protect the due process rights of the individual.  See RCW 13.50.150.

    [4]       As a practical matter, it is doubtful whether this provision would ever permit disclosure of information in substitute care citizen review board records to the public, since nearly all the information in the records will specifically relate to the subject juvenile and his or her family.

    [5]       In the event that a party to a review hearing contends that the board's findings and recommendations are not supported by the evidence in the record, and the juvenile court orders a transcript, the general rule is that the costs of transcription are borne by the party taking the appeal.  Bennett, 23 Wn. App.  at 701.

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