§ 490-C:5-b — Confidentiality and Disclosure of Information

New Hampshire § 490-C:5-b

• Jurisdiction: New Hampshire
• Title LI: COURTS
• Ch. 490-C: GUARDIAN AD LITEM BOARD

Text

I. (a) Unless waived by the person to whom the information pertains, the following information, if any, relative to certified guardians ad litem, applicants for certification, and formerly certified guardians ad litem which may be submitted to the board on or in conjunction with application, supplemental application, application renewal, recertification, and reinstatement forms shall be confidential and exempt from the disclosure requirements of RSA 91-A, unless disclosure is required pursuant to an order of the court:
(1) The person's date of birth, social security number, residence address, unless that address is also the person's business address, and home telephone number, unless that number is also the person's business phone number.
(2) The person's reason for leaving any past employment or the facts giving rise to any reprimand, censure, license revocation or suspension, disbarment, disqualification, or discipline given by any professional organization or entity supervising or overseeing a profession, other than the board.
(3) Whether or not the person has been a defendant in any criminal proceeding, information concerning such proceedings, any executed criminal records release, and the results of any criminal records check.
(4) The addresses and telephone numbers of the individuals who have submitted letters of reference in support of any application for certification as a guardian ad litem.
(5) Any photograph identification card or other document issued by a governmental agency submitted in support of an application that includes an applicant's date of birth, social security number, residence address, or home telephone number.
(6) Any information submitted on or in conjunction with the forms noted above that is otherwise deemed confidential under RSA 91-A or other applicable law.
(b) The provisions of subparagraph (a) shall not prohibit disclosure of such information in the circumstances described in paragraph II and shall not apply to such material disclosed, without prohibition, limitation, or other instruction, at a hearing, proceeding, or other matter before the board, or a portion thereof, that is open to the public.
(c) The following information shall also be held confidential and shall be specifically exempt from the disclosure requirements of RSA 91-A, unless required to be disclosed by court order or disclosed, without limitation, at a hearing, proceeding, or other matter, or a portion thereof, that is open to the public:
(1) Allegations of misconduct or executed complaint forms received by the board, or drafts or portions thereof, and supporting materials submitted therewith.
(2) Information and records acquired by the board or its representatives during its investigation of any complaint, including any answer submitted by a guardian ad litem in response to a complaint, or drafts or portions thereof, and supporting materials submitted therewith.
(3) Reports and records made by the board or its agents, representatives, or employees as a result of its investigation.
(4) Case or client records, including written or oral guardian ad litem reports, files, and oral and written information from which the identity of recipients of services or other persons whose identities are protected from disclosure can be derived.
(d) The provisions of subparagraph (c) shall not prohibit disclosure of information in the circumstances described in paragraph II.
II. Notwithstanding paragraph I, and notwithstanding the provisions of any other law relative to confidentiality, including but not limited to confidentiality provisions applicable to any case out of which an allegation or complaint against a guardian ad litem may arise:
(a) Persons involved in matters before the board, or persons seeking to address or respond to issues involving a guardian ad litem's misconduct or certification, may, without a specific court order allowing such disclosure, disclose to the board, its representatives, or its agents, records, documents, or information in their possession, whether oral or in writing, relating to a guardian ad litem, an applicant for certification as a guardian ad litem, or cases in which a guardian ad litem is or has been involved, unless such disclosure is prohibited by court order.
(b) If the board concludes that to do so would advance the effective and fair resolution of the matter, the board, its representatives, or its agents may, without a specific court order allowing such disclosure, disclose to persons involved in matters before the board, or to persons seeking to address or respond to issues involving a guardian ad litem's misconduct or certification, any records, documents, or information in its possession, whether oral or in writing, that have a bearing upon the matter, unless such disclosure is prohibited by court order.
(c) Persons involved in matters before the board, or persons seeking to address or respond to issues involving a guardian ad litem's misconduct or certification, may, without a specific court order allowing such disclosure, disclose to other persons involved in the matter documents or information in their possession, whether oral or in writing, to the extent, and only to the extent, that such disclosure is necessary in order to comply with the procedures of the board, unless such disclosure is prohibited by a court order.
(d) The board, its representatives, or its agents may, without a specific court order, disclose to any court that appoints or oversees guardians ad litem, or any other entity or group which possesses oversight authority over any type of professional activity of persons who may serve as a guardian ad litem, any records, documents, or information in the possession of the board, whether oral or in writing, including but not limited to that information described in RSA 490-C:4, II(b), unless such disclosure is prohibited by court order. In assessing whether or not to make a disclosure or engage in a communication under this subparagraph, consideration shall be given to whether or not it is likely that information conveyed will be further disseminated in a manner contrary to New Hampshire law.
III. In the case of disclosures made in accordance with paragraph II, any statutory provisions prescribing penalties for the disclosure of confidential information, including but not limited to laws relative to the penalties for the disclosure of information in cases or proceedings in which a guardian ad litem may be involved, shall not apply to the disclosure to the extent that:
(a) It is made to the board or its representatives or agents under subparagraph II(a), or to other persons in accordance with subparagraph II(c), in good faith; or
(b) It is made by the board, a member of the board, or the board's representatives or agents, in the good faith performance of official duties believed authorized under this chapter.
IV. Hearings and other proceedings held by the board shall be open to the public unless closed, in whole or in part, by the board. The board shall close a hearing, proceeding, or matter, in whole or in part, if it concludes, in its discretion, that to open the hearing, proceeding, or matter, or a certain portion thereof, would be likely to:
(a) Result in the board publicly hearing, or in the public dissemination of, information that arose in a court proceeding that was not open to the public;
(b) Result in the public dissemination of information in a manner prohibited by court order;
(c) Be contrary to the best interests of a recipient of guardian ad litem services;
(d) Cause unreasonable harm to one or more persons involved in any court proceeding or any proceeding or other matter before the board, including but not limited to the guardian ad litem; or
(e) Be detrimental to the effective resolution of a matter pending before the board.
V. In applying the provisions of paragraph IV, the board shall, to the extent practicable under the circumstances, seek to open or close hearings, proceedings, or other matters in a manner that is consistent with any confidentiality laws, court rules, or known orders pertaining to the case out of which a complaint against a presently or formerly certified guardian ad litem or other matter, arose.
VI. (a) As an alternative to, or in conjunction with, the complete closure of a hearing, proceeding, or other matter, or of a part thereof, the board may, in its discretion, make such limitations, prohibitions, or instructions relative to the hearing, proceeding, or matter as it concludes are necessary to avoid:
(1) The likely public dissemination of information that arose in a court proceeding that was not open to the public;
(2) The likely public dissemination of information in a manner prohibited by court order;
(3) Probable detriment to the best interests of a recipient of services;
(4) Unreasonable harm to one or more persons involved in any court proceeding or any proceeding or other matter before the board, including but not limited to the guardian ad litem; or
(5) Probable detriment to the effective resolution of a matter pending before the board.
(b) Limitations, prohibitions, or instructions under subparagraph (a) may include, but need not be limited to, limitations or prohibitions on, or other instructions regarding, any one or more of the following:
(1) The attendance or participation of a person, or of persons, at a hearing, proceeding, or matter before the board;
(2) The audiotaping, videotaping, or other recording of a hearing, proceeding, or matter by a person or persons present;
(3) The photographing of a hearing, proceeding, or matter before the board; or
(4) The taking of notes at a hearing, proceeding, or matter before the board.
(c) In hearings, proceedings, and other circumstances in which the board has assigned a presiding officer, the presiding officer shall have the authority to issue limitations, prohibitions, or instructions under subparagraphs (a) and (b), provided that:
(1) Such limitations, prohibitions, or instructions may, at the request of an interested person or on the board's own action, be reviewed by and affirmed, modified, or reversed by the board;
(2) Such limitations, prohibitions, or instructions shall not include the closure of a hearing, proceeding, or matter, or a part thereof, the authority for which shall, in the first instance, be with the board according to the standards set forth in paragraphs IV and V; and
(3) Such limitations, prohibitions, or instructions shall not include the authority to make limitations or prohibitions on the disclosure or use of material in circumstances outside of a hearing or proceeding, the authority for which shall, in the first instance, be with the board according to the standards set forth in paragraph VII.
VII. (a) The board may limit or prohibit the disclosure or use outside of a hearing, proceeding, or other matter before the board, or in other circumstances, of some or all of the evidence, testimony, documents, or other materials relating to the hearing, proceeding, or matter, or parts thereof, including but not limited to guardian ad litem reports, medical records, and school records.
(b) Limitations and prohibitions issued under subparagraph (a) shall be made in accordance with the considerations set forth in paragraphs IV and V and shall be applicable to such persons involved in the hearing, proceeding, or other matter as the board may designate.
(c) The board may issue limitations or prohibitions under subparagraph (a) regardless of whether a hearing, proceeding, or other matter is open or closed, in whole or in part, and regardless of whether any limitations, prohibitions, or instructions have been issued under paragraph VI.
VIII. (a) In addition to any other procedures, including those under paragraph VI, which the board may apply at a hearing, proceeding, or other matter before the board, the board may also limit access to, or place limitations on, a person's use in a hearing, proceeding, or matter, of particular documents or materials if:
(1) The board concludes that such limitation is necessary to prevent the potential disclosure of confidential material beyond those disclosures that are allowed by law, by court order, or by the board's limitations, prohibitions, or instructions under this chapter; and
(2) Such limitation will not result in a violation of due process of law.
(b) In hearings and proceedings in which the board has assigned a presiding officer, the presiding officer shall have the authority to limit access, or place limitations on, a persons' use in a hearing or proceeding of particular documents or materials according to the standards set forth in subparagraph (a), provided that such limitations may, at the request of an interested person or on the board's own action, be reviewed by and affirmed, modified, or reversed by the board.
IX. It shall be unlawful:
(a) For any person present during, or otherwise involved in, a disciplinary hearing or any other hearing, proceeding, or matter before the board, which is closed to the public, either in whole or in part, to disclose any information concerning the hearing, proceeding, or matter, or the closed portions thereof, if that information may not, pursuant to this chapter or other law, or pursuant to a court order, be disclosed, or if that information:
(1) May serve to identify a parent or child in an abuse or neglect hearing, unless an order of the court allows such disclosure or the disclosure is allowed under paragraph II, other provisions of this chapter, or other law; or
(2) Is subject to an order of the board closing a hearing, proceeding, or matter for the reasons set forth in subparagraphs IV(c) through (e), unless prior permission to make such disclosure has been obtained from the board or the disclosure is allowed under paragraph II, other provisions of this chapter, or other law.
(b) For any person who has reviewed evidence, documents, or other materials under consideration by or in the possession of the board, which are not subject to public disclosure, or parts of such items which are not subject to public disclosure, including but not limited to guardian ad litem reports, medical records, and school records, to disclose any information concerning the nonpublic portions of such documents, if that information may not, pursuant to this chapter or other law, or pursuant to a court order, be disclosed, or if that material:
(1) May serve to identify a parent or child in an abuse or neglect hearing, unless an order of the court allows such disclosure, or the disclosure is allowed under paragraph II, other provisions of this chapter, or other law; or
(2) Is subject to an order of the board closing a hearing or procedure for the reasons set forth in subparagraphs IV(c) through (e), unless prior permission to make such disclosure has been obtained from the board or the disclosure is allowed under paragraph II, other provisions of this chapter, or other law.
(c) For any person subject to a limitation or prohibition under paragraph VII to make a disclosure which is contrary to that limitation or prohibition, unless prior permission to make such disclosure has been obtained from the board.
X. A person who violates paragraph IX shall be guilty of a misdemeanor.

Legislative History

2004, 189:3. 2006, 223:6, eff. Jan. 1, 2007.