Confidentiality, as it relates to juvenile justice courts, is another area of juvenile process that has undergone significant change over time and continues to evolve. Historically, the juvenile justice court closed its proceedings, documents, and records, ostensibly to protect youth from the stigma of public knowledge of their court involvement and to reduce trauma to the youth. The historical position shifted to a more open process due to the belief that public access and openness are preferred, unless there is a clear reason why a youth would be harmed by openness. In many states there continues to be a mix between open and closed courts and an uncertainty about which is most appropriate for youth. It is important for courts to be thoughtful about their purpose and intent whether they are conducting open or closed hearings. Of paramount importance, regardless, is to protect the youth’s private information and mitigate unintended consequences regarding the release of information. A cautious approach should be taken with regard to those legislative mandates that have led to fewer confidentiality protections such as:

Many juvenile justice court professionals believe that lack of public access to the juvenile justice system has harmed the community and its youth. If the only way a community is exposed to the juvenile justice court process is through extreme cases reported in the media, the community often makes erroneous assumptions about how – and whether – the system works. This has resulted in pressure for legislative change based on incomplete and inaccurate information. Openness of hearings is more likely to provide a complete and accurate picture of the system. At the same time, courts can take a more cautious approach toward open records and documents to ensure there are opportunities for expungement and sealing.

The confidentiality discussion generally falls into four categories: 1) Who is permitted to attend juvenile justice court hearings?; 2) What information is made available to the juvenile justice court and who has access to this information?; 3) What information should be shared between agencies and organizations involved with the youth and court personnel regarding a youth’s behavior and needs?; and 4) Who has access to youth-specific juvenile justice court legal records?

1.  Juvenile Justice Court Hearings – The JUVENILE JUSTICE GUIDELINES-recommended practice regarding openness of juvenile hearings is that hearings should be presumed to be open to the general public, unless sufficient evidence supports a finding that an open hearing will harm the youth and that the youth’s interests outweigh the public’s interests.

The primary reason for requiring closed juvenile justice court proceedings has been to protect youth from the stigma of court involvement. Juvenile justice court judges from many courts that permit hearings to be open to the general public have expressed that, in the majority of cases, youth do not feel a stigma attached to their delinquent activity. Most youth openly share their situations with peers, school, and community so that before even appearing before the court, their alleged illegal activity is well-known to those in the youth’s life. In the minority of cases where public information might cause stigma, open courts have a mechanism for closing some or all of the proceedings. Requests to close proceedings generally receive a hearing on the merits, thus ensuring protection of the youth when appropriate and also ensuring that the public has the opportunity to oppose the request.

2.  What Information Will Be Provided to the Juvenile Justice Court and Who Has Access to this Information? – This confidentiality category asks two important questions: a) What information should be provided to the juvenile justice court by other agencies working with a youth?; and b) What information should be available to victims, the general public, or media representatives who may attend open juvenile justice court hearings?

During the pre-trial and adjudication process, most information focuses on the facts of the offense and most information is presented as testimony in open court or as exhibits that become a part of the legal record. If the juvenile justice court has open hearings, the public has access to most of this information. During the disposition process, however, more personal information about the youth and family is presented to the juvenile justice court to assist the court in determining causal factors for problem behavior and what services and treatment might be effective to help the youth change the problem behavior.

Juvenile justice courts cannot be expected to make decisions without information and cannot make good decisions if agencies withhold information that is pertinent to the needs of the youth. Juvenile justice courts cannot make timely decisions and operate efficiently if procedures to share information are cumbersome and time- and resource-intensive.

There are many barriers to timely provision of appropriate information. One of the most common barriers is that, due to the complexity of privacy standards and confidentiality laws, agencies sometimes erroneously believe that these laws prevent them from providing information to the juvenile justice court, when, in fact, the laws provide mechanisms so that the information can be provided to the court. Federal statutes that fund education, social, health, drug abuse, alcohol abuse, and mental health services include confidentiality provisions that can be extensive. Examples include HIPAA (Health Insurance Portability and Accountability Act of 1996, amended in 2013), FERPA (Family Educational Rights and Privacy Act, passed in 1974 with nine amendments up to 2001) and 42 U.S.C./42 C.F.R. Part 2 (consolidated alcohol and drug abuse confidentiality protections, 1992).

All of these laws and regulations significantly limit the information that can be shared with others about a youth without written consent. Further complicating the matter, states have confidentiality statutes that vary considerably and may be more restrictive than the federal regulations. However, these laws and regulations provide that this protected information can be disclosed without the youth’s consent if authorized by an appropriate court order.

Juvenile justice courts may internally create another barrier to the timely provision of complete information. Some juvenile justice courts do not have procedures to incorporate knowledge from abuse and neglect cases into the delinquency disposition process. The Juvenile Justice and Delinquency Prevention Act of 2002 requires states to establish policies and systems that make child protection services and child welfare records available to the juvenile justice court. The reason for this requirement is to ensure that the best interests of the child are considered when determining an appropriate action on a delinquency offense, and when establishing and implementing treatment plans for juvenile offenders.

An effective way to ensure the timely provision of appropriate information to the juvenile justice court is for juvenile justice court judges to appoint a confidentiality board or rules committee. The board or committee consists of representatives from the court, prosecutor’s office, public defender’s office, service agencies, media, victim advocates, and family advocates. The charge of the board or committee is: 1) to develop recommended procedures that implement state and federal laws and court rules; 2) to ensure that the court receives all information necessary to determine appropriate dispositions in a timely fashion; 3) to ensure that confidential information is not released to the public, but that the public has access to non-confidential information; and 4) to ensure that smooth linkages exist regarding appropriate information-sharing between system stakeholders. The board or committee presents their recommendations to the juvenile justice court’s administrative rule-making authority for a final determination regarding court policy.

Confidentiality boards and rules committees should be responsible for: