3/19/09
While most police documents are available for public inspection, juvenile criminal records and some reports related to arson investigations can be sealed under state law.
Criminal records for juveniles are sealed to the public under the Children’s code, first enacted in 1993 and amended in 2003 and 2005. A bill that passed the senate in this legislative session would further amend the code.
“The Children’s Code provides for confidentiality of those records based on the theory a child’s record should be sealed, as publicity would interfere with rehabilitation,” New Mexico Foundation for Open Government Executive Director Leonard DeLayo said.
The Children’s Code does allow access to juvenile records to prosecutors, attorneys and public defenders, corrections department personnel, social services workers and certain school personnel.
Senate Bill 248 would also add new mechanisms for sealing juvenile records even from these people, according to Dave Schmidt, director for the New Mexico Council on Crime and Delinquency. Schmidt staffed the task force that spent the last six months drafting revisions to the Children’s Code.
In the current version of the Children’s Code, children turning 18 can petition to have their juvenile crime records sealed, provided they have had no criminal convictions for the preceding two years, Schmidt said. The revisions would make the state Children, Youth and Families Department responsible for automatically sealing the records when the child turns 18 if he or she has had a clean record for two years.
Another revision would make it possible for a child younger than 18 to petition to have his or her record sealed after two years without further convictions.
Under the revised state code, records in cases where the child is found not guilty would also be automatically sealed, Schmidt said.
The bill passed the Senate 35-0 but has yet to go before the House of Representatives for consideration.
Even a defendant can’t have access to all of his or her records as a juvenile, although the revisions give them increased access when they reach the age of 14, Schmidt said. Medical or psychiatric records that might be damaging to the child are not provided to them, Schmidt said.
“Let’s say a parent confided in the psychiatrist about abuse that was going on in the home,” Schmidt said. “That could be psychologically very damaging to the child. If they read those records, certain parts of the information would be redacted.”
In the case of a serious crime like homicide, the record would not be sealed when the child turned 18 because the child would be under prolonged supervision in a facility, Schmidt said.
For different reasons, reports on an arson investigation are sealed to the public when the case is ongoing, and parts of the report are kept sealed when a case becomes inactive without a prosecution (becomes a cold case), according to state Fire Marshal John Standefer.
Arson investigations often involve sensitive information, such as who has a financial interest in burning a structure, Standefer said.
A state statute enacted in 1979 requires insurance companies to disclose information relevant to arson investigations to the Fire Marshal, prosecutors and other authorized agencies.
“If somebody’s business is not doing well and they might be looking for a way to get out from under heavy payments, that kind of information is important to us,” Standefer said.
Before the case is prosecuted, that information is kept confidential to both protect the innocent and avoid tipping off the guilty, Standefer said. A suspect who knew he was under scrutiny could move accounts or attempt to destroy evidence, Standefer said.
If a case is never solved, meaning it becomes a cold case, some aspects of the case may continue to be kept confidential, such as the criminal’s “signature” — the M.O. or anything about the case only the criminal would know, such as how the fire was started. This information is withheld to avoid inspiring a copycat criminal, and in the hopes of positively identifying the suspected arsonist in the future, Standefer said.