In an opinion (No. 13-93) handed down by the State of Tennessee Office of the Attorney General on November 27, 2013, Tennessee family law attorneys learn when and under what circumstances Department of Children's Services files can be disclosed to third parties in regards to a confidential complaint of child abuse and what these records can and/or cannot contain when being disclosed.
T.C.A. §§ 37-1-409, 37-1-612, and 37-5-107 cover access to confidential records. These records may be subpoenaed or subject to discovery mechanisms in a state civil court proceeding pursuant to exceptions in Tenn. Code Ann. § 37-1-612. Most of these exceptions involve divulging information to parties that need to provide services to the abused child. These would include, but are not limited to, a court, administrative board, and/or hearing officer. There is no provision that allows for disclosure of confidential information when the Department finds the allegations of abuse to be unfounded. However, per Tenn. Code Ann. § 37-1-413, making a false report is a Class E felony.
T.C.A. §37-5-107(b) sets forth the circumstances in which the Department has discretion to release confidential information while T.C.A. § 37-5-107(c)(7) provides that the Department may release records upon written request "to any person who is the subject of a report made to the department, or to the person's parent or legal guardian if the person is a minor and the parent or legal guardian is not the alleged perpetrator..." However, this provision does not permit the department to disclose the person making the report of abuse. T.C.A. § 37-1-409(a)(2) states specifically that a person making a report of abuse "shall be irrelevant to any civil proceeding and shall, therefore, not be subject to disclosure by any order of the court."
T.C.A. §§ 37-1-409(a)(2) and 37-1-612(g) provide that the name of a person reporting sexual abuse of a child may only be released "to employees of the department or other child protection team members responsible for child protective services, the abuse registry, or the appropriated district attorney general upon subpoena of the Tennessee bureau of investigation without written consent of the person reporting." Applying these statutes, the District Attorney General for Tennessee concluded that the office could obtain the name of a person reporting child abuse so long as they do so via a subpoena issued by the Tennessee Bureau of Investigation for the purposes of conducting a criminal investigation. Id. It further found that the District Attorney may also disclose the reporter's name to a grand jury for investigation and/or an indictment. Id. This disclosure is also permitted when there is an investigation and/or prosecution of a false report of child abuse in accordance with T.C.A. §§37-1-413, 37-1-409(b), and 37-1-612(b).
Once a person has legally gained access to these types of records, T.C.A. §§37-1-612(a) & (b) state that the records must be kept confidential and the person may only use the records for the specific purposes as outlined in the statute. Also, any indentifying information must be redacted from the records before they are disclosed.
While these laws are followed in Tennessee state courts, they do not necessarily protect confidentiality in federal courts in regards to civil rights actions. In the case of Farley v. Farley, 952 F. Supp. 1232 (M.D. Tenn. 1997) a plaintiff filed a complaint against the state averring she had been deprived of her civil rights as outlined in 42 U.S.C. § 1983. The plaintiff alleged the state took her children from her care without a hearing or legal authority. As part of the case, the plaintiff requested access to the Department's files and requested the ability to publish said files to third parties in order to conduct fact-witness interviews. Id. at 1234. In order to determine what weight the state statutes had on a federal civil rights action, the federal district court had to apply Fed. R. Evid. 501 to Tennessee's state laws that govern the confidentiality of the Department's records in order to determine if the files could be disclosed. Id. at 1235.
According to Farley in regards to Fed. R. Evid. 501 "...in civil actions arising under federal law, the presiding federal judge has greater liberty to fashion evidentiary privileges based upon 'reason and experience,' even when the pendent state law claims are incorporated in a cause of action." Id. at 1236. Over the years, most states have interpreted this to mean that in the interest of full disclosure most state laws must yield to federal interests in a matter. Id. at 1235-36. However, state laws may not be completely ignored when applying Fed. R. Evid. 501 to discovery issues in a federal matter. Id. at 1236. The court further found that Tennessee laws were clear in the assertion that the state takes the prevention of child abuse very seriously, and the scope of the state's laws were purposely broad, "prohibiting disclosure or use of any information for unauthorized purposes where directly or indirectly derived from DCS sources." 952 F. Supp. at 1238.
In Farley, the federal district court ultimately found that the state laws limiting disclosure of these types of files are secondary to federal interests in a civil rights matter. Therefore, disclosure of these files can be ordered produced and used in a federal civil rights action. However, the district court further opined that it had "no authority under state law to order production of DCS records and their dissemination in the discovery and trial phases of federal civil rights litigation. Rather, this authority comes from the broad discovery and admissibility mandates of federal laws and the prioritization of federal privileges doctrine in federal questions matters under Rule 501." Id. at 1242.
Therefore, per Tennessee statute, it is possible to for a person to gain access to DCS files in regards to a report of child abuse under the following circumstances:
• Upon written request by the abused or his or her parent or legal guardian if they are a minor, a person may gain access to DCS files so long as they are not the abuser. However, the files will have the name of the reporter redacted.
• Many offices, courts, and/or persons may have access to the files in order to provide services to the child pursuant to Tennessee statute.
• In a federal civil rights action, federal law trumps state law and can order disclosure of DCS files pursuant to Fed. R. Evid. 501.
• The District Attorney General for Tennessee may gain access to DCS files and the name of a reporter in furtherance of a criminal investigation for child abuse or a false report of child abuse upon a subpoena issued by the Tennessee Bureau of Investigation. Once obtained, the District Attorney General may also disclose this information to a grand jury in furtherance of an investigation and/or indictment.