Minn. Juve. Prot. P. 8.10
The parties to a family court matter involving a determination of custody or parenting time regarding a child who has been or is the subject of a juvenile protection matter, including any person established as a parent in a parentage matter and any guardian ad litem appointed in the family court matter, shall have access to the juvenile protection case record to the same extent as a party to the juvenile protection matter has access under Rule 8.04, subd. 3. If the juvenile court has issued a protective order under Rule 8.07, the portions of the juvenile protection case record subject to the protective order continue to be subject to the protective order when accessed by any party to the family court matter.
Minn. Juve. Prot. P. 8.10
2019 Advisory Committee Comment
Rule 8 is amended in 2019 as part of a revision of the Rules of Juvenile Protection Procedure.
Most juvenile protection case records in Minnesota state courts are public. Public access began as a pilot project. Records of cases filed in the pilot project locations (courts in the counties of Chisago, Clay, Goodhue, Hennepin, Houston, LeSueur, Marshall, Pennington, Red Lake, Stevens, St. Louis (Virginia courthouse only), and Watonwan) are presumptively publicly accessible if filed on or after June 28, 1998. The presumption of public access took effect statewide on July 1, 2002. Rule 8.02 distinguishes between pilot project and non-pilot project records.
After the pilot project, juvenile protection records were accessible to the public on an on-demand basis. Petitioners were responsible for filing redacted copies of their petitions so that court administration staff could make them available to the public, but otherwise court administration staff were responsible for redacting non-public information from juvenile protection case records before making them accessible to the public. Non-public information includes both "confidential information" and "confidential documents" as defined in Rule 8.04. Redacting non-public information became an impracticable burden for court administration staff once juvenile protection case records were made electronically accessible to the public. For that reason, the rules were amended as of July 1, 2015, to provide that every person who files documents into juvenile protection cases is responsible for keeping non-public information out of public records. Court administration staff retain their historic responsibility for redacting non-public information from juvenile protection case records filed before July 1, 2015, as described in Rule 8.03.
Rule 8.04 draws the line between those juvenile protection records that are accessible to the public and those that are not. The rule helps strike a balance between preserving the privacy interests of the people involved in juvenile protection proceedings and ensuring transparency and accountability.
Everyone who files a document in a juvenile protection matter is responsible for separating the publicly accessible portions from those that are inaccessible to the public. The onus is on filers to ensure that the public and confidential portions of the filings are properly separated. There are two types of records that are inaccessible to the public: confidential documents and confidential information. Confidential documents must be designated as confidential upon filing, and must be filed with a Form 11.3 cover sheet, which is public. Confidential information is information that must be taken out of a public document and placed onto a Form 11.4 Confidential Information Form.
Only judicial officers have discretion to change the classification of a record from the classification set out in Rule 8.04. A judicial officer may order that a confidential record be made accessible to the public, or that a public record be made inaccessible if exceptional circumstances exist. Judicial officers who issue orders in juvenile protection proceedings have discretion to include confidential information and confidential documents in public court orders. Judicial officers are encouraged to consider that their public court orders are immediately accessible at every state courthouse in Minnesota.
Rule 8.04 defines three levels of access to juvenile protection records: what the public can access; what parties can access; and what participants can access. Members of the public can access confidential information or confidential documents only by filing a motion for and obtaining an order granting access. Parties can access most confidential documents and confidential information, with the exceptions of recordings of children alleging or describing abuse, the identities of reporters of child abuse or neglect, and information about any person's HIV status. Participants can access confidential information or confidential documents if a judge issues an order granting them access, and can request access orally or in writing without filing a formal motion for access.
Although confidential documents are inaccessible to the public, filers are free to discuss the contents of confidential documents in public court filings where doing so is necessary and relevant to the issues being addressed in the court filing. For example, all medical records are confidential documents. But a publicly accessible social worker report could describe a child's medical condition and progress in treatment. The social worker report could quote directly from the child's treatment records, even though the treatment records themselves are not accessible to the public. The public social worker report should not include confidential information, such as the child's HIV status or the child's identity if there is an allegation of sexual assault.
Categories of confidential documents:
Rule 8.04, subd. 2(a) precludes public access to transcripts of portions of hearings that were closed to the public by the presiding judge upon a finding of exceptional circumstances.
Rule 8.04, subd. 2(b) precludes public access to audio or video recordings of a child alleging or describing physical abuse, sexual abuse, or neglect of any child. This is consistent with Minn. Stat. § 13.821, which governs access to these recordings when held by an executive branch agency.
Rule 8.04, subd. 2(c) precludes public access to victims' statements, which includes written records of interviews with victims made under Minn. Stat. § 626.561. This is consistent with the confidential classification of victim interviews in presentence investigation reports in criminal proceedings, pursuant to Minn. Stat. §§ 609.115, 609.2244, and 611A.037.
Rule 8.04, subds. 2(f) and (g) preclude public access to medical records, chemical dependency evaluations and records, psychological evaluations and records, psychiatric evaluations and records, and sexual offender treatment program reports. This is consistent with Rule 4, subd. 1(f) of the Rules of Public Access to Records of the Judicial Branch. Filers should be careful not to violate federal law by disclosing these records. Under 42 U.S.C § 290d d-2, records of all federally assisted or regulated substance abuse treatment programs are confidential and may not be disclosed by the program without consent or a court order. Disclosure procedural requirements are found in 42 C.F.R. §§ 2.1-2.67.
Rule 8.04, subd. 2(h) precludes public access to portions of photographs that identify a child. Filers are required to designate as confidential any photograph that displays a child's face or other identifying features. Any need to make the remainder of the photograph accessible to the public can be addressed through a court order issued under Rule 8.07.
Rule 8.04, subd. 2(i) precludes public access to notices of change of foster care placement. All of the information in these notices is confidential under subdivision 2(m). The Form 11.3 cover sheet discloses to the public that there has been a change of foster care placement.
Rule 8.04, subd. 2(k) precludes public access to the notice of pending proceedings provided by the petitioner pursuant to 25 U.S.C. § 1912(a). The notices can contain detailed personal information about the child, including, when "known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents." 25 C.F.R. § 23.111(d)(3). Parties who receive the notices are directed to keep them confidential. 25 C.F.R. § 23.111(d)(6)(ix). Subdivision 2(k) was amended in 2019 to also preclude public access to responses to these notices. Just as the notices can contain detailed personal information about the child, responses can also contain detailed personal information.
Rule 8.04, subd. 2(l) recognizes that judicial officers may, in exceptional circumstances, issue orders precluding public access to specified records.
Rule 8.04, subd. 2(n) precludes public access to the signature pages of documents containing signatures of foster parents or children whose identities are confidential. This recognizes that foster parents and, occasionally, children whose identities are confidential must sign documents that are filed with the court, such as out-of-home placement plans. Classifying the signature page as confidential preserves the confidentiality of their identities. Subdivision 2(n) does not make the remainder of the document confidential.
Rule 8.04, subd. 2(o) precludes public access to documents provided to the court by a social services agency under Rule 27.07, subd. 2(a) as part of a report when a child is under state guardianship. The information is provided to enable the court to provide notice of the hearing to various individuals. The identities of those individuals are non-public, and are additionally not accessible to parents whose rights have been terminated or who have executed a consent to adoption of the child.
Categories of confidential information:
Rule 8.04, subd. 2(d) precludes public access to the identity of a reporter of abuse or neglect of a child. This is consistent with state laws restricting the disclosure of the identity of a reporter of abuse or neglect. Minn. Stat. § 626.556. It is also intended to help preserve federal funds for child abuse prevention and treatment programs. 42 U.S.C. § 5106a(b)(2). Subdivision 2(d) does not, however, apply to testimony of a witness in a proceeding that is open to the public.
Rule 8.04, subd. 2(e) precludes public access to any person's HIV test results, to information that reveals that any person has been tested for HIV, and to any reference to a person's HIV status. This is consistent with the classification of HIV status of crime victims under certain state and federal laws. Minn. Stat. § 611A.19; 34 U.S.C. § 12391. Additionally, federal funding for early intervention services is contingent upon HIV status being kept confidential. 42 U.S.C. §§ 300f f-61-300ff-63.
Rule 8.04, subd. 2(j) precludes public access to the identity of a minor victim or minor perpetrator of an alleged or adjudicated sexual assault. The rule is similar to the requirements of Minn. Stat. § 609.3471, and Rule 4, subd. 1(m) of the Rules of Public Access to Records of the Judicial Branch. Unlike that statute and rule, Rule 8.04, subd. 2(j) applies to all situations where there has been an allegation of sexual assault, even if the allegation is not proven. Several recommended practices are listed below in this comment.
Rule 8.04, subd. 2(m) precludes public access to the name, address, home, and location of the child's current shelter care or foster care placement. This is designed to reduce the risk of continued contact with someone whose parental rights have been terminated. Subdivision 2(m) only makes current placements confidential. It does not make a child's past placements confidential. Subdivision 2(m) does not apply to information disclosed in consent to adoption forms. Subdivision 2(m) also does not apply to information disclosed in documents, such as petitions or proposed orders, that are intended to transfer permanent legal and physical custody of a child to a foster care provider or relative. Documents containing the signature of a foster parent are addressed in subd. 2(n) (see the discussion of confidential documents above).
Rule 8.04, subd. 2(p) precludes public access to names, addresses, e-mail addresses, and telephone numbers if disclosing that information would endanger a person. Absent a court order, this information is also inaccessible to parties, but is accessible to attorneys and guardians ad litem.
Use of Form 11.3:
Every confidential document needs a Form 11.3 cover sheet. The filer should check the appropriate box on Form 11.3 to indicate the type of confidential document that is being filed.
Electronic filers using Form 11.3 need to file it as a separate PDF file from the confidential document. This makes it possible to make the cover sheet accessible to the public and the confidential documents inaccessible to the public.
Form 11.3 does not have a separate checkbox for documents referring to HIV, because having a separate checkbox would reveal to the public that there is a document referring to HIV. Documents referring to HIV should be checked as "medical records" on Form 11.3. Filers should not write anything on Form 11.3 to indicate there is a document referring to HIV.
Rule 8.04, subd. 5(d)(1)(i) directs court administration staff to take action if it is brought to their attention that a filer has failed to designate a confidential document as confidential and use a Form 11.3. The rule directs court administration staff to designate the document as confidential, notify the filer of the change in classification, and direct the filer to file a Form 11.3 in compliance with the rule.
Subdivision 5(d)(1)(ii) creates a limited exception for responses to notices of pending court proceedings, which are confidential documents. The majority of the hundreds of federally recognized tribes are located outside of Minnesota, and may not be familiar with Minnesota's unique filing requirements in juvenile protection cases. If it is brought to the attention of court administration staff that the response has not been filed as confidential using Form 11.3, court administration staff are directed only to designate the document as confidential, without directing the filing of a Form 11.3 cover sheet. Subdivision 5(d)(1)(ii) only applies when tribes or the Bureau of Indian Affairs file responses to notices of pending court proceedings. If a tribe or the Bureau of Indian Affairs files any other type of confidential document, or if any other entity (such as a county attorney) files a tribal response to a notice of pending court proceeding, then subdivision 5(d)(1)(i) applies.
Use of Form 11.4:
Form 11.4 is used to file confidential information. If a document contains confidential information but is otherwise public, the public portion of the document must be filed as public. The confidential information is filed on a Form 11.4. Filers should file a Form 11.4 with each filing that contains confidential information, with the exception that filers may refer to a Form 11.4 that was previously filed in a case that identifies a child's identity or a foster parent's identity.
Some confidential information is accessible to parties and some is not. Filers who are submitting both party-accessible and party-inaccessible confidential information should use two Forms 11.4 to submit the information: one Form 11.4 that is accessible to the parties and another that is not accessible.
Electronic filers using Form 11.4 need to file it as a separate PDF file from the public document. This makes it possible to make the public document accessible to the public and the confidential information inaccessible to the public.
Rule 8.04, subd. 5(d)(2) directs court administration staff to take action if it is brought their attention that a publicly accessible document contains confidential information. Court administration staff are directed to designate the document as confidential and direct the filer to promptly file a document with confidential information properly separated.
Recommended practices for using pseudonyms for minor victims of sexual assault:
Do not use the child's initials when there is an allegation of sexual assault. Refer to the child as "Child 1," "Child 2," etc. The child's name, date of birth, race, and gender should be submitted on a Form 11.4. No Form 11.4 need be submitted if the child's identity has already been provided on a Form 11.4 in the same case. Instead, the public document may state "Child 1 is identified on Confidential Information Form 11.4, filed on [DATE]."
If there are multiple children in a case and only one child's identity is confidential, all of the children should be given pseudonyms to avoid revealing the child's identity by process of elimination.
Use consistent pseudonyms for minor children within a juvenile protection matter and within related juvenile protection matters. Do not use gendered pronouns. Instead of "she," "he," "his," or "her," write "the child" or "the child's."
Sometimes, an allegation of sexual assault is made midway through a case. In such situations, the child's identity will be apparent from previously filed documents. The previously filed publicly accessible documents continue to be publicly accessible, even though they identify the child. Under Rule 8.07, a judicial officer may, upon finding an exceptional circumstance, order that the documents be made confidential.
A judicial order that uses a pseudonym for a child placed in foster care should include the child's identity in a confidential attachment which is incorporated into the order. If this is not done, the foster placement may not be eligible for federal Title IV-E reimbursement.
Recommended practices for using pseudonyms for foster parents:
Foster parents should be referred to as "Foster Parent 1," "Foster Parent 2," etc. No Form 11.4 need be submitted if the foster parent's identity has already been provided on a Form 11.4 in the same case. Instead, the public document may state "Foster Parent 1 is identified on Confidential Information Form 11.4, filed on [DATE]." When assigning a pseudonym to a foster parent, consider which pseudonyms have already been used for any previous foster parents in the case.
Case captions:
Rule 8.08 dictates the case captions to be used in juvenile protection matters. The captions are designed to minimize the stigma to children involved in juvenile protection matters.
Access when there is a related family court matter:
Rules 8.09 and 8.10 serve the child's best interests and judicial economy by permitting access by the judicial officer hearing a family court matter involving a child with a juvenile protection matter. After giving the parties notice, the judicial officer hearing the family court matter may access the records of the juvenile protection matter. This rule is consistent with the ethical considerations discussed in Minnesota Board of Judicial Standards Advisory Opinion 2016-2, Judicial Notice of Electronic Court Records in OFP Proceedings.
A legal parent in a family matter has access to the juvenile protection case record to the same extent as a party to the juvenile protection matter. If the juvenile court has issued a protective order regarding the content of the juvenile protection case record, that order remains in effect regarding access by any party to the family court matter.