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Confidentiality, Transparency, and Accountability: A Delicate Balance in Child Protection Law and Policy


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Howard Davidson, Director, American Bar Association Center on Children and the Law, presents changes in law and policy regarding the issues of managing privacy and confidentiality of child abuse cases and the need for greater transparency and accountability from those who manage the cases.

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Confidentiality, Transparency, and Accountability: A Delicate Balance in Child Protection Law and Policy

  1. 1. Georgia Child Welfare Legal Academy December 4, 2014
  2. 2. GEORGIA Received a Grade of B (2012) I. Is there a state policy regarding public disclosure of findings or information about child abuse or neglect which has resulted in a child fatality or near fatality? Yes. 40 out of 40 II. Is the state policy codified in statute? Yes (O.C.G.A. § 49-5-41). 10 out of 10 III. What is the ease of access to the information? Georgia’s policy requires mandatory disclosure. Any adult requesting information regarding investigations by the department of a governmental child protective agency regarding the findings or information about the case of child abuse or neglect that results in a child fatality or near fatality “shall have reasonable access to such records concerning reports of child abuse.” (O.C.G.A. § 49-5-41(a)). 20 out of 20
  3. 3. IV. What is the scope of information authorized for release? Georgia’s policy is vague and unclear with a moderate restriction. The information authorized for disclosure is limited to “the available facts and findings” with no further clarification or description (O.C.G.A. § 49-5-41(a)(6)). The moderate restriction is that information will not be released if it is made confidential by another provision of the law (O.C.G.A. § 49-5-41(e)). 6 out of 20 V. Are child abuse/neglect proceedings open? Pursuant to O.C.G.A.§ 15-11-78, proceedings are presumptively open to the general public. However the court “may refuse to admit a person to a hearing…upon making a finding …that the person’s presence at the hearing would: (1) Be detrimental to the best interest of a child who is a party to the proceeding; (2) Impair the factfinding process; or (3) Be otherwise contrary to the interest of justice.” (O.C.G.A.§ 15-11-78). A judge may order the media not to release identifying information concerning any child or family members or foster parent or other caretaker of a child involved in hearings open to the public (O.C.G.A § 15-11-78(i)). 10 out of 10
  4. 4. ” Commission created by the “Protect Our Kids Act” – P.L. 112–275 (1/14/13) I presented on this issue at their July 2014 meeting
  5. 5. I opened a panel discussion on July 11th on confidentiality, providing background on how the original 1974 CAPTA requirements, that were primarily focused on keeping records private, should be amended to require more disclosure “To prevent child deaths,” I said, “CAPTA must evolve from a ‘you must keep confidential’ focus to a ‘you must disclose’ focus.” “While an amendment [to CAPTA] was passed in 2003 to promote mandatory disclosure, older regulations requiring states to criminalize disclosures, and lack of guidance to states on permissible and mandated disclosures, may actually be working to inhibit full implementation of CAPTA’s disclosure provisions.”
  6. 6. August 2014 128 pages _final_08_12_2014.pdf Good summary of federal laws on information exchange
  7. 7. Appendix B of this document is particularly useful with models for information sharing: Includes Memorandums of Agreement and Understanding, Security Agreements, and Notices of Privacy Practices from: State of Kentucky – Memorandum of Agreement State of New York – Master Memorandum of Understanding State of Colorado – Master Memorandum of Understanding ACF/Office of Child Support Enforcement – Security Agreement Montgomery County, Maryland – Notice of Privacy Practices