Obtaining "Confidential" Child Abuse Records (Part 1)

Attorneys, journalists, and other professionals who need access to records concerning child abuse investigations are often told by law enforcement or child protection agencies that "those records are confidential under federal and state law and can't be released."  But the law -- in Georgia, it's OCGA 49-5-41 -- provides a number of significant exceptions to confidentiality that we'll explore over the next few posts.

Let's start with attorneys.  Whether pursuing or defending a claim involving an injury to a child, handling a custody case, or representing a criminal defendant, attorneys often want to see if the Division of Family and Children Services has investigated the family.  For a pending action, an attorney seeking Georgia child abuse records should file a motion with the court seeking an in-camera inspection of the child abuse records held by the agency and serve it on all parties, the agency, and in cases involving criminal investigations, on the applicable District Attorney or Solicitor General with jurisdiction over the investigation.  At the same time, the attorney should serve a subpoena seeking the records and should include copies of the subpoena with the motion.  

The agency holding the records will almost always file a motion to quash the subpoena, but that shouldn't be a deterrent.  The law provides that the court should provide to counsel any records that are reasonably calculated to lead to the discovery of admissible evidence.  To calm any legitimate concerns about the sensitive nature of these records, the Court can craft protective orders limiting who can view them, prohibiting further disclosure, and otherwise safeguarding them from individuals without a need to review them.  

At Taylor English, we regularly request confidential child abuse records as part of our work representing youth-serving organizations.  While the process may be tricky, don't let its complexity deprive you or your clients of a potential source of important information for your pending case.

Of course, you might want access to child abuse records when you don't have a pending case in which to ask for in-camera review.  Next time we'll talk about other ways to access these records without a subpoena.