170-G:8-a Record Content; Confidentiality; Rulemaking.
I. The case records of the department consist of all official records, regardless of the media upon which they are retained, created by the department of health and human services in connection with a report received pursuant to RSA 169-C:29, or cases brought under RSA 169-B, 169-C, 169-D, or 463, or services provided to the child or family without a court order pursuant to RSA 170-G:4, including intake and assessment reports, service or case plans, case logs, termination reports and a list of persons or entities providing reports to the department or services to the child or family. Such records do not include:
(a) Records created as part of an action brought pursuant to RSA 170-B or 170-C.
(b) Records submitted to or maintained by the courts, or records created by third parties, such as psychologists, physicians, and police officers, even if such records are prepared or furnished at the request of the department. Requests for access to court records and records created by third parties may be made directly to the court or to the third party who created the record. Nothing in this section shall restrict or limit access to records filed pursuant to RSA 169-C:12-b.
(c) Reports contained in the central registry of abuse and neglect reports maintained pursuant to RSA 169-C:35.
(d) The name of a person who makes a report of suspected abuse or neglect of a child pursuant to RSA 169-C:29, or any information which would identify the reporter.
II. The case records of the department shall be confidential.
(a) The department shall provide access to the case records to the following persons unless the commissioner or designee determines that the harm to the child named in the case record resulting from the disclosure outweighs the need for the disclosure presented by the person requesting access:
(1) The child named in the case record.
(2) The parent of the child named in the case record, as defined in RSA 169-C:3, XXI.
(3) The guardian or custodian of the child named in the case record.
(4) Another member of the family of the child named in the case record, if disclosure is necessary for the provision of services to the child or other family member.
(5) Employees of the department and legal counsel representing employees of the department for the purpose of carrying out their official functions.
(6) Persons made parties to judicial proceedings in New Hampshire relative to the child or family, whether civil or criminal, including the court with jurisdiction over the proceeding, any attorney for any party, and any guardian ad litem appointed in the proceeding.
(7) A grand jury, upon its determination that access to such records is necessary in the conduct of its official business.
(8) The relevant county.
(b) The department shall disclose information from case records or provide access to case records to the following persons or entities, if such information or access is not harmful to the child and is necessary in order to enable the person or entity requesting information or access to evaluate or provide services, treatment or supervision to the child named in the case record or to the family:
(1) A person or entity requested by the department or ordered by the court to perform an evaluation or assessment on or to create a service plan for the child named in the case record, the child's family, or an individual member of the child's family.
(2) A person or entity requested by the department or ordered by the court to provide services to the child named in the case record or the child's family.
(3) The superintendent of schools for the school district in which the child named in the case record is then, or will, according to the child's case plan, be attending school.
(4) The person or entity with whom the child resides, if that person is not the child's parent, guardian, or custodian.
III. The commissioner shall adopt rules, pursuant to RSA 541-A, governing the procedures regulating access to all of the records of the department. Such rules shall contain provisions relative to:
(a) Access to case records by persons named in paragraph II of this section.
(b) Access to case records by a physician who has examined a child who the physician reasonably suspects may be abused or neglected.
(c) Access to case records by a law enforcement official who reasonably suspects that a child may be abused or neglected, and who is participating with the department in a joint investigation.
(d) Access to case records by a state official who is responsible for the provision of services to children and families, or a legislative official who has been statutorily granted specific responsibility for oversight of enabling or appropriating legislation related to the provision of services to children and families, for the purposes of carrying out their official functions, provided that no information identifying the subject of the record shall be disclosed unless such information is essential to the performance of the official function, and each person identified in the record or the person's authorized representative has authorized such disclosure in writing.
(e) Access to case records by a person conducting a bona fide research or evaluation project, provided that no information identifying the subject of the record shall be disclosed unless such information is essential to the purpose of the research, each person identified in the record or an authorized representative has authorized such disclosure in writing, and the department has granted its approval in writing.
(f) Access to case records by any person making a report of suspected child abuse or neglect pursuant to RSA 169-C:29, provided that such disclosure is limited to information about the status of the report under investigation, or information reasonably required to protect the safety of such person.
(g) Access to all other records of the department which are not case records as defined in paragraph II.
IV. Additional access to case records and all other records of the department shall be granted pursuant to the terms of a final order issued by a court of competent jurisdiction.
V. It shall be unlawful for any person entrusted with information from case records to disclose such records or information contained in them. Notwithstanding the previous sentence, it shall not be unlawful for a parent or child to disclose case records or the information contained in them to persons providing counsel to the child or family. It shall be unlawful for any person who receives case records or the information contained in them from a parent or a child to disclose such records or information. Any person who knowingly discloses case records or information contained in them in violation of this paragraph shall be guilty of a misdemeanor.
VI. Notwithstanding the foregoing:
(a) Any person who is entitled to access a case record pursuant to this section may share such information with any other person entitled to access pursuant to this section, unless the commissioner or a designee shall specifically prohibit such additional disclosure in order to prevent harm to a child.
(b) Nothing in this section shall be construed to require access to any records in violation of the order of a court of competent jurisdiction.
Source. 1985, 367:10. 1993, 355:8. 1994, 212:2. 1995, 310:143, 175, 181, 183, eff. Nov. 1, 1995.
170-G:8-aa Court Review.
I. The commissioner or designee shall have 30 days in open cases and 60 days in closed cases from the date a written request for access to case records is received by the district office where the case records are or were located, to limit or deny access to the case records pursuant to RSA 170-G:8-a, II. Any decision by the commissioner or designee relative to access to case records shall be in writing and shall set forth the harm that may result to the child if the requested access is provided.
II. The party requesting access may present to the court with jurisdiction over the case giving rise to the request for access or, if the request for access does not arise in the context of an existing judicial proceeding, to the district court for the judicial district in which the person making the request resides, a written petition, duly verified, setting forth that the decision of the commissioner or designee is illegal or unreasonable in whole or in part and specifying the grounds upon which the decision is claimed to be illegal or unreasonable. Such petition shall be presented to the court within 60 days after the date of the written decision of the commissioner or designee.
III. Upon presentation of the petition, the court shall issue an order directed to the department prescribing the time within which return shall be made and served on the petitioner and the records and other documents to be provided to the court by the department. The return shall set forth concisely such facts as may be pertinent and material, show the grounds of the decision to be reviewed, and shall be verified. If an attorney or a guardian ad litem for the child named in the case record had been appointed to represent the child in the case giving rise to the request to access, the department shall provide such person with copies of its decision, the petition, and the department's response. Such attorney or guardian ad litem may participate in the judicial proceedings described in this section by filing a written response and participating in any hearings scheduled by the court pursuant to paragraph IV of this section. Nothing in this section shall require the appointment of an attorney or guardian ad litem to represent the interest of a child in the proceedings described in this section.
IV. The court shall review the petition, return, other responses, and records and shall hold a hearing on its own motion or if requested by the petitioner. Thereafter, the court shall issue such orders as may be appropriate. Costs shall not be allowed against the state unless it shall appear to the court that the department acted in bad faith or with malice in denying or limiting access to case records.
V. Notwithstanding anything to the contrary in this section, if the petitioner's request for access occurs in the context of an existing judicial proceeding, the court with jurisdiction over the case may establish time limitations different from those contained in this section to facilitate the disposition of the case.
Source. 1993, 355:9. 1995, 310:144, 175, eff. Nov. 1, 1995.