Senate Bill 48
By: Senators Parent of the 44th, Jones II of the 22nd and Jackson of the 41st
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 issuing 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 issuing 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 <del>Georgia Crime Information Center</del> <ins>center</ins> 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 <del>Georgia Crime Information Center
</del> <ins>center</ins> 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 <del>the
Probate Judges Training Council and the Georgia Bureau of Investigation</del> <ins>The Council
of Probate Court Judges of Georgia and the bureau</ins> 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 <del>Georgia Bureau of Investigation</del> <ins>bureau</ins> to preserve the confidentiality of
patients' rights in all other respects. <del>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.
</del> <ins>(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
</ins>
<ins>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 such petition 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
public safety and that granting the 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.
(iii) A record shall be kept of the hearing on a petition for relief. Such record shall
be exempt from disclosure under Article 4 of Chapter 18 of Title 50.
(iv) 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
</ins>
<ins>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.
(v) If the court grants such petition, 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 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 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."
</ins> SECTION 2.
All laws and parts of laws in conflict with this Act are repealed.