Can a county board of commissioners take physical possession of the county DSS's child protective services records, putting them in a safety deposit box that the DSS director cannot access?

Plain-English summary

Mary K. Deyampert, who directed the NC Division of Social Services, brought the AG a serious situation. A county board of commissioners had ordered the computerized child protective services files of the county DSS seized. Those files had been placed in a safety deposit box that only the chairman of the county commissioners and the manager of the county data processing department could access. The DSS director had not been asked, had not consented, and had no access or control over the files anymore. Deyampert asked whether this violated NC confidentiality law.

AG Michael F. Easley, with Senior Deputy AG Ann Reed and Special Deputy AG Robert J. Blum, said it did.

The opinion walked through the legal structure that puts the DSS director, not the county commissioners, in charge of CPS records:

G.S. 7A-544. All information a county DSS receives in connection with an investigation of child abuse, neglect, or dependency under the Juvenile Code "shall be held in the strictest confidence by the Department [of Social Services]." That places the duty on the DSS, not on county political bodies.

G.S. 7A-675(d). Records of juveniles in DSS protective custody or under court placement may be examined only by the juvenile or by other parties authorized by court order. The default is sealed; access requires a judge's order.

Federal requirement. The opinion says 45 C.F.R. § 1340.14(i) required states receiving federal juvenile-program grant money to protect by statute records concerning reports of child abuse and neglect. It identifies G.S. §§ 7A-544 and 7A-675(d) as North Carolina's implementing provisions.

G.S. 143B-153. Empowers the NC Social Services Commission to adopt rules required for the State to receive federal grants. The Commission has used that authority to adopt 10 NCAC 41I.0312 and .0313, which protect CPS records specifically, and 10 NCAC 24B, which protects social services records generally. Rule 24B.0203(a) and (b) say all client information in agency records is the property of the agency and original client records may not be removed from the premises by anyone other than authorized agency staff, except by court order. Rule 24B.0204(b) restricts which individuals may remove records from storage. Rule 41I.0312–.0313 makes the county director's duty explicit: "The 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."

That last rule is the linchpin. The DSS director's statutory and regulatory job is to keep CPS records inside DSS. Letting them out, except for a narrow class of state and federal audit-and-review staff or by court order, is forbidden. A county board of commissioners is not on that authorized list.

The AG acknowledged that county commissioners have broad responsibility to administer and supervise county affairs. That authority does not override the confidentiality statutes and rules. If commissioners want DSS records copied and sequestered to ensure they are not altered, the opinion requires the DSS director's prior knowledge and approval or a court order, with the director able to approve access afterward. Seizing the files unilaterally was unlawful.

The opinion closed with a practical reminder to DSS directors: given how sensitive these records are and how thoroughly they have been computerized, county DSS directors must be vigilant in protecting clients' privacy rights.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

For a current records question, check the present statutes and rules. The opinion addresses the confidentiality provisions cited as they stood in 1994.

Common questions

Q: What gives DSS, not the county commissioners, custody of CPS records?
A: The opinion places responsibility for protecting and controlling access to CPS records with the DSS director. It identifies the director or a person delegated by the director, and a judge acting by court order, as the persons who may authorize release under the cited law.

Q: Could the county commissioners have used a different mechanism to address whatever concern triggered the seizure?
A: Yes. The opinion explains that if commissioners are worried about records being altered or destroyed, the proper steps are (a) ask the DSS director to copy and sequester the records, keeping the director's access control intact, or (b) get a court order. Either preserves the confidentiality framework while still addressing legitimate oversight concerns.

Q: What happens to the federal funding angle?
A: The opinion cites 45 C.F.R. § 1340.14(i) as a reason North Carolina protected child abuse and neglect reports by statute. It does not assess any funding consequence of this county's seizure.

Q: Could the county board have lawfully ordered DSS itself to make backup copies?
A: A board could ask the DSS director to do that, and the director would weigh the request. The director maintains custody and decides who gets access. A board cannot bypass the director and stand up its own parallel custody structure.

Q: Did the AG specify what the DSS director should do after an unauthorized seizure?
A: No. The opinion says the director must protect and control access to CPS records, and it concludes that removal by people outside DSS without authorization violates confidentiality law. It gives no procedure for recovering files already taken.

Q: Does this apply to other confidential DSS records, like adult protective services or Work First?
A: The opinion says unauthorized removal of public assistance and social services records, including CPS files, violates confidentiality law. It specifically analyzes the CPS files described in the request and does not decide the handling of every other program's records.

Background and statutory framework

The opinion recognizes county commissioners' general responsibility for county affairs while assigning control over confidential social services records to the DSS director under the cited statutes and rules.

In the request, computerized CPS files had been placed in a safety deposit box accessible only to the commissioners' chair and the county data-processing manager. The DSS director had not consented and could not access or control the files. The AG concluded that removing them without authorization violated confidentiality law.

If commissioners want DSS records copied and sequestered to guard against alteration, the opinion says they need the director's prior knowledge and approval or an order from a court of competent jurisdiction. The director must retain control over access to the sequestered records.

Citations

• N.C.G.S. § 7A-544 (DSS holds child abuse and neglect investigation information in strictest confidence)
• N.C.G.S. § 7A-675(d) (records of juveniles in protective custody; examination controlled by the statute and court orders)
• N.C.G.S. § 143B-153 (Social Services Commission authority to adopt rules required for federal grants)
• 45 C.F.R. § 1340.14(i) (federal CAPTA-era requirement that states protect child abuse and neglect records by statute)
• 10 N.C.A.C. 41I.0312, .0313 (Social Services Commission rules protecting CPS records; "the county director shall not allow anyone outside of the county department of social services" to examine CPS records except for specified audit and review purposes)
• 10 N.C.A.C. 24B.0203(a), (b) (client information is the agency's property; original records cannot be removed except by authorized staff or court order)
• 10 N.C.A.C. 24B.0204(b) (only authorized individuals may remove records from storage)

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-county-board-of-commissioners-to-seize-confidential-child-protective-services-records/

Original opinion text

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. §7A-675(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 grants-in-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. §7A-544, 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 Deputy Attorney General