April 4, 1997
Mr. Kevin M. FitzGerald, Director Division of Social Services 325 North Salisbury Street Raleigh, North Carolina 27603
Re: Advisory Opinion; Release of Protective Services Information in a Child Fatality Case; 42
U.S.C.A. §§ 1397 et seq. and 5101 et seq.; 45 C.F.R. §§ 205.50 and 1340.14; N.C.G.S. §§ 108A80 and 7A-544; 10 N.C.A.C. 24B .0200 and 41I .0313.
Dear Mr. FitzGerald:
We are in receipt of your February 21, 1997, letter concerning the release of protective services information in a child fatality case. Specifically, you have asked the following two questions:
Does the 1991 opinion continue to reflect the scope of information that can be released by the Division following its review of selected child fatalities?
What information can be released by the county DSS in a child fatality case when the agency has had protective services involvement with the family, irrespective of whether or not the Division conducts a formal review?
In order to be eligible for federal funding pursuant to Title XX of the Social Security Act (42
- U.S.C.A.
- §§ 1397 et seq.), and the Child Abuse and Neglect Prevention and Treatment Act (42
- U.S.C.A.
- §§ 5101 et seq.), the State must comply with certain federal requirements. One such requirement found in the federal regulations implementing the above provisions, which are set forth in 45 C.F.R. § 205.50 and 45 C.F.R. § 1340.14 respectively, is that a state must limit disclosure of DSS records, more particularly, all records concerning reports and all reports of child abuse and neglect to persons or agencies directly involved with the administration of the programs. In response to these federal requirements, our General Assembly enacted N.C.G.S. § 108A-80, which applies generally to all DSS records and provides that information concerning persons applying for or receiving public assistance or social services may only be disclosed for "…purposes directly connected with the administration of the programs of public assistance and social services in accordance with federal rules and regulations and the rules and regulations of the Social Services Commission or the Department". It has also enacted N.C.G.S. § 7A-544, which applies specifically to child abuse and neglect reports and provides that all information received by a county department of social services when investigating a report of child abuse or neglect shall be held in strictest confidence. Furthermore, the Social Services Commission has adopted rules which have the force and effect of law and basically limit disclosure of client information to persons or agencies directly connected with the programs. The rules pertaining to all DSS records in general are set forth in 10 N.C.A.C. 24B .0200 et seq., and the rule pertaining specifically to protective services records is set forth in 10 N.C.A.C. 41I .0313.
After reviewing the pertinent federal and state law and regulations set forth above, we concluded in our November 21, 1991, opinion to then Counsel for the Governor, James R. Trotter, that case-specific information contained within a child fatality review report was not subject to the Public Records Act. However, we further concluded that that did not mean the public did not have access to certain information when a child who was a subject of a CPS investigation died. In balancing the public’s right to know against the privacy interests of third parties, we stated that the following categories of information may be released by the Division of Social Services upon its review of a child fatality:
- The name of the deceased child;
- The fact that an investigation was conducted by the county DSS;
- The fact that State DSS reviewed the county DSS procedures, etc.;
- The result of that review to the extent that it does not disclose any case- specific information; and
- Matters of public record by reference to the public record, such as a conviction for child abuse.
Since the date of our 1991 opinion, Congress has passed P.L. 104-235, the Child Abuse Prevention and Treatment Act (CAPTA) Amendments of 1996. One of these amendments provides that a state, in order to be eligible for CAPTA grants-in-aid, must certify that it has in effect and is enforcing a state law, or has in effect and is operating a statewide program relating to child abuse and neglect that includes "provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality". 42 U.S.C.A. 5106a(b)(2)(A)(vi). While this amendment may have a future impact on the type and amount of protective services information that may be shared in a child fatality case, no federal regulations have been promulgated, as yet, to implement or clarify any of these amendments. Furthermore, no changes in this area have been made to our state law or regulations which cloak case-specific protective services information with a mantle of strict confidentiality. Therefore, we conclude that the five categories of information as set forth above continue to reflect the scope of information that can be released by the Division of Social Services upon its review of a child fatality:
As to your second question, a county department of social services, like the Division, is accountable to the public for the operation of its governmental programs. Both are also basically subject to the same federal and state laws and regulations regarding the confidentiality of protective services information. Hence, there is no plausible reason to differentiate between a county DSS and the Division of Social Services when balancing the public’s right to know against the privacy interests of third parties. Therefore, we conclude that in a child fatality case, a director of a county department of social services may also release the same five categories of information set forth above when the county DSS has had prior protective services involvement with the family and the Division will be conducting a formal review.
We trust that this fully answers your questions on this matter. Please do not hesitate to contact us if we can be of any further assistance to you.
Ann Reed Senior Deputy Attorney General
David Gordon
Assistant Attorney General