August 29, 1994
Mary K. Deyampert, Director Division of Social Services
N.C. Department of Human Resources 325 N. Salisbury Street Raleigh, NC 27603-5905
RE: Advisory Opinion: Authority of County Board of Commissioners to Seize Confidential Child Protective Services Records; G.S. §7A-544; G.S. §7A-675; G.S. §143B-153
Dear Ms. Deyampert: You have asked whether confidentiality laws of this State are violated when a county board of commissioners orders that the computerized child protective services (CPS) files of their county department of social services (DSS) be seized, thereby removing the files from the protection of the county DSS and its director. The information supplied indicates that the files have been placed in a safety deposit box, and that only the chairman of the county commissioners and the manager of the county data processing department have access to the files. It is understood that the files were taken without the knowledge or permission of the DSS director, who does not presently have any access or control over them. It is unclear from your inquiry whether the entire CPS files were removed or whether copies of the files were reproduced and placed in the safety deposit box.
The confidentiality laws of North Carolina are violated when public assistance and social services records, which includes CPS files, are removed by persons outside of the county DSS without authorization. The only persons authorized to release such files are the DSS director (or someone delegated by the director to have that authority) or a judge through an order of the court.
G.S. §7A-544 provides that all information received by a county DSS in connection with a DSS’s investigation of reports of child abuse, neglect, or dependency under the Juvenile Code "shall be held in the strictest confidence by the Department [of Social Services]." G.S. §7A-675(d) states that county DSS records relating to the cases of juveniles under the protective custody of a DSS or under placement by the court may be examined only by the juvenile or by other parties as authorized by court order.
One of the basic underpinnings of North Carolina’s confidentiality laws is the requirement under federal law for states receiving federal grant money for juvenile programs, which includes CPS, to protect by statute all records concerning reports of child abuse and neglect. 45 C.F.R. 1340.14(i). North Carolina has done this through the enactment of G.S. §7A-544 and G.S. §7A675(d). In addition, G.S. §143B-153 empowers the Social Services Commission to adopt such rules as may be required by the federal government for North Carolina to receive federal grantsin-aid. The Social Services Commission has in turn adopted rules to specifically protect the confidentiality of CPS records, 10 N.C.A.C. 41I.0312; .0313, and rules to protect social services records in general, 10 N.C.A.C. 24B. It is noted that 10 N.C.A.C. 24B.0203(a) and (b) state that all client information contained in any records of the agency (DSS) is the property of the agency and that original client records may not be removed from the premises by individuals other than authorized staff of the agency, except by order of the court. 10 N.C.A.C. 24B.0204(b) states that only authorized individuals may remove a record from the place in the agency where records are stored and that such individuals are responsible for the security of the record until it is returned.
The DSS director has the responsibility of protecting and controlling access to public assistance and social services records, and in particular, CPS records. This is made clear by 1) G.S. §7A544, which places the burden on the director to investigate reports of abuse and neglect and to hold information obtained in the "strictest confidence"; 2) G.S. §7A-675, which requires the DSS director to maintain records of cases of juveniles under protective custody and which states further that such records may be examined only by order of a judge (except that the juvenile, his parent, guardian, custodian or other authorized representative may examine them); and 3) 10
N.C.A.C. 41I.0312 and .0313, which not only requires that the DSS director maintain such files, but states that "[t]he county director shall not allow anyone outside of the county department of social services other than state and federal agency personnel carrying out their lawful responsibilities for program audit and review to examine a protective services case record . . ."
Although it is clear that the board of county commissioners has the responsibility of administrating and supervising the affairs of the county, it does not have the authority to breach the protective walls of confidentiality clearly established by the legislature and the Social Services Commission. If a board of county commissioners feels that certain DSS records should be copied and copies sequestered to insure that such files are not inappropriately altered, such action may only be taken with the prior knowledge and approval of the DSS director or by an order of a court of competent jurisdiction. Moreover, if such action is taken, it should be done in a way that gives the director the ability to approve access to the sequestered records, so that unauthorized persons cannot view the records. Given the extremely sensitive nature of public assistance and social services records and the extent to which all county DSS’s have computerized, it is imperative that county DSS directors be vigilant in protecting the privacy rights of their clients.
MICHAEL F. EASLEY Attorney General
Ann Reed
Senior Deputy Attorney General
Robert J. Blum Special Duputy Attorney General