HB 285: Law enforcement agencies; judicial procedure for purging a person's involuntary hospitalization information; provide

House Bill 285

By: Representative Buckner of the 137th

A BILL TO BE ENTITLED

AN ACT

To amend Code Section 35-3-34 of the Official Code of Georgia Annotated, relating to disclosure and dissemination of criminal records to private persons and businesses, resulting responsibility and liability of the Georgia Crime Information Center, and provision of certain information to the FBI in conjunction with the National Instant Criminal Background Check System, so as to provide for a judicial procedure for purging a person's involuntary hospitalization information received by the center for the purpose of the National Instant Criminal Background Check System under certain circumstances; to change provisions relating to the retention of a person's involuntary hospitalization information; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Code Section 35-3-34 of the Official Code of Georgia Annotated, relating to disclosure and dissemination of criminal records to private persons and businesses, resulting responsibility and liability of the Georgia Crime Information Center, and provision of certain information to the FBI in conjunction with the National Instant Criminal Background Check System, is amended by revising paragraph (2) of subsection (e) as follows: "(2)(A) The records of the Georgia Crime Information Center center shall include information as to whether a person has been involuntarily hospitalized. Notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the Georgia Crime Information Center center shall be provided such information and no other mental health information from the involuntary hospitalization records of the probate courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by the Probate Judges Training Council and the Georgia Bureau of Investigation The Council of Probate Court Judges of Georgia and the bureau to preserve the confidentiality of patients' rights in all other respects. Further, notwithstanding any other provisions of law and in order to carry out the provisions of this Code section and Code Section 16-11-172, the center shall be provided information as to whether a person has been adjudicated mentally incompetent to stand trial or not guilty by reason of insanity at the time of the crime, has been involuntarily hospitalized, or both, from the records of the clerks of the superior courts concerning persons involuntarily hospitalized after March 22, 1995, in a manner agreed upon by The Council of Superior Court Clerks of Georgia and the Georgia Bureau of Investigation bureau to preserve the confidentiality of patients' rights in all other respects. After five years have elapsed from the date that a person's involuntary hospitalization information has been received by the Georgia Crime Information Center, the center shall purge its records of such information as soon as practicable and in any event purge such records within 30 days after the expiration of such five-year period.

(B) When a person's mental health information has been submitted pursuant to subparagraph (A) of this paragraph, such person may petition the court in which such hospitalization proceedings occurred for relief. A copy of such petition for relief shall be served upon the opposing civil party or the prosecuting attorney, as the case may be, or their successors, who appeared in the underlying case. Within 60 days of the receipt of such petition, such court shall hold a hearing on such petition; provided, however, that such time period may be extended for good cause as determined by the court. The prosecuting attorney may represent the interests of the state at such hearing.

(C) At the hearing provided for under subparagraph (B) of this paragraph, the court shall receive and consider evidence concerning:

(i) The circumstances which caused the petitioner's hospitalization;

(ii) The petitioner's mental health and criminal history records, if any. The court shall require the petitioner to sign a waiver authorizing the record custodian of any hospital where such petitioner received mental health treatment for such hospitalization or any other facility or outpatient treatment center where he or she received mental health treatment since such hospitalization to release such records to the court. The court shall keep such hospitalization and treatment records confidential to the extent possible;

(iii) The petitioner's reputation, which shall be established through character witness statements, testimony, or other character evidence; and

(iv) Changes in the petitioner's condition or circumstances since such hospitalization. (D)(i) The court shall issue a written order of its decision on such petition filed under subparagraph (B) of this paragraph no later than 30 days after the hearing.

(ii) The court shall grant a petition filed under subparagraph (B) of this paragraph if it finds by a preponderance of the evidence that the petitioner will not likely act in a manner dangerous to himself or herself or that endangers public safety and that granting such relief is otherwise consistent with the standards for the issuance of a weapons carry license as provided for in subsection (b.1) of Code Section 16-11-129. A record shall be kept of the hearing on any petition for relief and such record shall be exempt from disclosure as a public record under Article 4 of Chapter 18 of Title 50. Any appeal of the court's ruling on such petition shall be as provided for by the laws governing the appeal of decisions from such court; provided, however, that any such appeal from a probate court, as defined in Code Section 15-9-120, shall be by de novo investigation to the superior court, notwithstanding Code Sections 5-3-4 and 5-3-5 and paragraph (2) of subsection (a) of Code Section 5-6-33.

(iii) If the court grants a petition filed under subparagraph (B) of this paragraph, the clerk of court shall report such order to the center immediately, but in no case later than ten days after the date of such order, and the center shall purge such record that is the subject of the order as soon as practicable but not later than 30 days after receipt of such order.

(E) In the case of a person who is involuntarily hospitalized, such person shall not be entitled to petition for relief pursuant to this Code section prior to being discharged from such hospitalization. A person's first petition for relief may be filed only after the expiration of 12 months from the date of such person's discharge from involuntary hospitalization. No petition for relief pursuant to this Code section may be filed within a period of two years from the date of the final order on a previous petition for relief.

(F) Information received by a prosecuting attorney pursuant to this paragraph shall not be used against the petitioner in any other case or context unless such information is obtained in such other case or context by other rules of evidence or discovery."

SECTION 2.

All laws and parts of laws in conflict with this Act are repealed.