June 14, 2006
It's been exactly a month that I've been doing this now. We've got some regular readers, and others who drop in from time to time. For those of you who may not know this, there's a new post here each day. I try to make it entertaining, and also informative. I learn something new just about every day doing this, and hopefully you will, too. In the next week or so, I'm going to try to set up something called an RSS feed, which will allow you to sign up to automatically get the day's post in your email. More on that later. For now, fortified by a cup of not-so-great coffee, on to the law.
The court somewhat clarifies the circumstances under which a party can obtain agency records of abuse or neglect, despite statutory provisions making them confidential, in In re J.C.
Keep in mind that while this was a custody proceeding, the principles would apply to any matter. In fact, the court relies on the test it employed three years earlier in Child Care Provider Certification Dep't v. Harris, a case involving the revocation of a foster care license:
The proper procedure for determining the availability of such records is for the trial court to conduct an in camera inspection to determine the following: 1) whether the records are necessary and relevant to the pending action; 2) whether good cause has been shown by the person seeking disclosure; and 3) whether their admission outweighs the confidentiality considerations set forth in R.C. 5153.17 and R.C. 2151.421(H)(1).
Left undecided in the earlier case, at least according to the court in J.C., is "whether the court must conduct an in camera inspection of the sought for records before resolving the confidentiality question." It's not at all clear that that was left undecided; Harris appears to contemplate that the three-part test will be applied after the in camera inspection, a position explicitly endorsed by Judge Dyke in her concurrence.
Judge Corrigan, writing for the court in J.C. (Judges Calabrese and Rocco concurred), is unwilling to do that, somewhat understandably: such a position, especially given the volatility of custody disputes, could result in litigants subpoenaing child care records as a matter of course, and the courts' having to sift through them to determine whether or not to allow them. Furthermore, since the court in Harris reversed because the defendant's attorney wasn't permitted to review the material the court relied upon in making its determination, a rule requiring in camera inspections in all cases might result in serious degradation of confidentiality. The J.C. court thus imposes a requirement that the "good cause" the person seeking the records has to show must be "that exigent circumstances existed which justified forcing the court to examine the records in camera," something relating to the "imminent health and welfare of the children." The court found the father's allegations here too minimal to meet that test.
It's not clear how all this is going to shake out. One of the problems with many of the tests that appellate courts enunciate is that they're not nearly as clear as they appear to be at first glance, and the test in Harris is no different: there's an awful lot of elasticity in phrases like "necessary and relevant" and "good cause," and whether "admission outweighs confidentiality considerations." J.C. certainly stands for the proposition that requests for disclosure of child care agency records must cross a higher bar than simply "it's about the kids." Exactly how high that bar is will depend, as usual, on case-by-case adjudications.