When a juvenile is adjudicated delinquent for a serious offense, can a prosecutor send the disposition info to the school district without violating the juvenile's privacy laws?

Plain-English summary

Sebastian County Prosecuting Attorney Daniel Shue asked whether any state or federal law prohibited him from sending juvenile-disposition information to a school district under newly enacted Act 647 of 2019. The Act added Ark. Code Ann. § 6-10-133, which requires a prosecuting attorney to notify a school superintendent when a minor is adjudicated delinquent for or convicted of one of six categories of serious offenses (deadly-weapon offenses under § 5-1-102, kidnapping under § 5-11-102, first-degree battery under § 5-13-201, sexual indecency with a child under § 5-14-110, first through fourth degree sexual assault under §§ 5-14-124 to -127, and unlawful possession of a handgun under § 5-73-119).

The wrinkle was § 6-10-133(d), which says that "[i]nformation provided under subsections (b) and (c) of this section [6-10-133] shall not be released in violation of any state or federal law protecting the privacy of the minor." Mr. Shue worried that this language might require him to evaluate every other privacy statute before passing the disposition information on.

The AG read the privacy clause as governing the school's downstream release of the information, not the prosecutor's mandatory notification under (c). The opinion's plain-text point: subsection (d) talks about information "provided under subsections (b) and (c)," meaning information that the prosecutor (or court) has already passed to the superintendent. The privacy guardrail kicks in once the information reaches the school. The earlier Op. Att'y Gen. 95-310 had reached the same conclusion about the analogous Juvenile Code provision now found at § 9-27-309(h).

The AG also said that no Arkansas statute he could identify would block the prosecutor's required notification under (c). Federal-law questions were referred to the U.S. Attorney's office (the AG generally does not opine on federal law).

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Which six offense categories trigger notification?
A: (1) Deadly-weapon offenses under § 5-1-102; (2) kidnapping under § 5-11-102; (3) first-degree battery under § 5-13-201; (4) sexual indecency with a child under § 5-14-110; (5) first, second, third, or fourth degree sexual assault under §§ 5-14-124 to -127; and (6) unlawful possession of a handgun under § 5-73-119.

Q: Who counts as a "minor" under § 6-10-133?
A: A child under 18 or a person 18 or older who is a student in a public secondary school. Section 9-27-309 uses the term "juvenile," defined at Ark. Code Ann. § 9-27-303(32).

Q: What is subsection (b) versus (c)?
A: Subsection (b) says a court "may provide" disposition information to a superintendent on written request. Subsection (c) is the mandatory prosecutor-notification track for the six listed offenses.

Q: Does the school have to keep the information confidential after receiving it?
A: That is precisely what § 6-10-133(d) addresses. It limits onward release "in violation of any state or federal law protecting the privacy of the minor." The exact contours of that obligation will depend on which other statutes apply (FERPA, the Juvenile Code's confidentiality provisions, etc.). The AG did not work through that downstream analysis.

Q: What about federal law's effect on the prosecutor's notification?
A: The AG declined to address it, saying federal-law questions are generally outside the office's opinion authority. The U.S. Attorney's office is the right resource for that piece.

Background and statutory framework

Act 647 of 2019 added new section 6-10-133 to the Arkansas Code's school chapter and amended the Juvenile Code provisions on confidentiality. Subsection (c) created a mandatory disclosure rule: a prosecutor "shall notify" the school superintendent when a covered offense is on the minor's record.

Subsection (d) was the privacy clause. The AG applied the cardinal rule of statutory construction (Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179; Weiss v. McFadden, 353 Ark. 868, 874, 120 S.W.3d 545, 550 (2003)) to read it as governing the recipient's onward release, not the sender's initial notice. Op. Att'y Gen. 95-310 had analyzed the parallel Juvenile Code provision (now § 9-27-309(h)) the same way, treating it as a constraint on the school's downstream conduct.

Federal-law issues, including FERPA, were left to the U.S. Attorney's office.

Citations

• Ark. Code Ann. § 6-10-133 (school notification, added by Act 647 of 2019)
• Ark. Code Ann. § 9-27-301 et seq. (Juvenile Code)
• Ark. Code Ann. § 9-27-309(g), (h) (court disclosure to schools, post-amendment)
• Ark. Code Ann. § 5-1-102 (deadly weapon definitions)
• Ark. Code Ann. § 5-11-102 (kidnapping)
• Ark. Code Ann. § 5-13-201 (first-degree battery)
• Ark. Code Ann. § 5-14-110 (sexual indecency with a child)
• Ark. Code Ann. §§ 5-14-124 to -127 (sexual assault degrees)
• Ark. Code Ann. § 5-73-119 (unlawful possession of a handgun)
• 2019 Ark. Acts No. 647
• Brock v. Townsell, 2009 Ark. 224, 309 S.W.3d 179
• Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2019-040
October 18, 2019

The Honorable Daniel Shue
Prosecuting Attorney
901 South B Street, Suite 209
Fort Smith, AR 72901

Dear Mr. Shue:

This is in response to your request for my opinion concerning Act 647 of 2019. As you note, this Act adds a new section 6-10-133 to Arkansas Code Title 6, Chapter 10, regarding school notification of certain criminal disposition information involving minors. The Act also amends portions of the Arkansas Juvenile Code concerning the confidentiality of records.

As background you quote the portions of Act 647 that require the prosecuting attorney to notify a school district's superintendent if a "minor" or "juvenile" served by the district is adjudicated delinquent for or convicted of certain criminal offenses. You then state: "However, Section 1 also contains the following: '(d) Information provided under subsections (b) and (c) of this section [6-10-133] shall not be released in violation of any state or federal law protecting the privacy of the minor.'" You ask in this regard:

Are there any state or federal laws that would prohibit the release of this information by the prosecuting attorney contained in either Section 1 or Section 2 of Act 647 of 2019?

RESPONSE

Your question pertains to subsection (c) of section 6-10-133, which requires the prosecuting attorney to inform the school superintendent that a minor has been adjudicated delinquent for or convicted of certain criminal offenses:

A prosecuting attorney shall notify the school superintendent or the designee of the school superintendent of the school district to which a minor transfers, in which the minor is enrolled, or from which the minor receives services if the minor is adjudicated delinquent for or convicted of:

(1) An offense involving a deadly weapon under § 5-1-102;
(2) Kidnapping under § 5-11-102;
(3) Battery in the first degree under § 5-13-201;
(4) Sexual indecency with a child under § 5-14-110;
(5) First, second, third, or fourth degree sexual assault under §§ 5-14-124 - 5-14-127; or
(6) The unlawful possession of a handgun under § 5-73-119.

The prosecuting attorney must, therefore, provide the criminal disposition information to the superintendent (or the superintendent's designee) pursuant to section 6-10-133(c). The other subsection you quote (subsection (d) of section 6-10-133) addresses the release of information that has been provided pursuant to subsection (c):

Information provided under subsections (b) and (c) of this section [6-10-133] shall not be released in violation of any state or federal law protecting the privacy of the minor.

While it is not entirely clear from the wording of your question, it seems as though you may believe this provision applies to the prosecuting attorney. That is, you seem to be concerned that section 6-10-133(d) requires the prosecuting attorney to consider whether some other state or federal law would prohibit a prosecuting attorney from releasing the disposition information to the superintendent (or designee).

That concern is unwarranted. Under a plain reading of section 6-10-133(d), the "[i]nformation provided under subsection[ ] ... (c)" is the disposition information that must be provided by the prosecuting attorney to the superintendent. This subsection plainly addresses the release by school officials of that disposition information. It does not apply to the prosecuting attorney's release of information to those officials. Thus, the answer is clearly "no."

On the other hand, under another possible reading of your question, you may recognize that section 6-10-133(d) only addresses the release of disposition information by the school officials who have received such information from the prosecuting attorney. That is, you may recognize that this subsection does not apply to the prosecuting attorney's release of information to those officials pursuant to section 6-10-133(c). You may be asking whether some other state or federal law nevertheless prohibits such release.

I have identified no state law that would prohibit a prosecuting attorney from releasing the disposition information to school officials, as required by section 6-10-133(c). As to the possible implication of any federal law, you may wish to contact the U.S. Attorney's office. Questions of federal law are generally not within the scope of opinions issued by this office.

Sincerely,

LESLIE RUTLEDGE
Attorney General