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 anchor. 45 C.F.R. § 1340.14(i) requires states receiving federal juvenile-program grants to protect by statute all records concerning reports of child abuse and neglect. NC complies through Sections 7A-544 and 7A-675(d). Failing to maintain that protection puts federal funding at risk.

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 the affairs of the county. But that general authority does not override specific confidentiality statutes and rules adopted to protect children's privacy and the state's federal funding. If a board of commissioners has a legitimate concern that DSS records are being altered or destroyed inappropriately, the proper avenue is to ask the DSS director to copy and sequester the records (preserving the director's control over access) or to seek a court order. Seizing the files unilaterally was not lawful.

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.

The provisions cited in this opinion at Chapter 7A have largely been recodified into Chapter 7B (Juvenile Code) since 1998–1999. G.S. 7A-544 corresponds in substance to provisions now in Chapter 7B (e.g., G.S. 7B-302 covers DSS handling of child abuse and neglect reports, and G.S. 7B-2901/2902 governs records confidentiality). G.S. 7A-675 corresponds to provisions in Article 29 of Chapter 7B. Social Services Commission rules in Title 10 of the NCAC have been recompiled; the substance survives in 10A NCAC. The federal regulation citation has been restructured into newer provisions of the Child Abuse Prevention and Treatment Act regulations. Anyone with a current question should pull current Chapter 7B, current 10A NCAC, current CAPTA regulations, and recent NC appellate decisions on CPS record confidentiality.

Common questions

Q: What gives DSS, not the county commissioners, custody of CPS records?
A: A combination of state statutes (G.S. 7A-544 putting the "strictest confidence" duty on DSS), state rules (10 NCAC 41I.0312–.0313 and 24B), federal requirements (45 CFR 1340.14(i)), and the structural design of NC's social services delivery. The DSS director is the named custodian and the only person (other than a judge) who can let anyone outside DSS see the records.

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: Federal law (45 CFR 1340.14(i)) requires the state to protect these records by statute as a condition of receiving CAPTA-related juvenile grant money. Repeated or systemic breakdowns in confidentiality can put that funding at risk. The opinion frames the issue partly as a federal-funding compliance question, not just a privacy issue.

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: What is the DSS director's recourse if the board does this anyway?
A: The director should refuse to participate, contact state DSS for guidance, and consider seeking a court order requiring the records to be returned. The director's statutory duties run to the State and to the children whose information is in the records, not solely to the county political structure that funds the office.

Q: Does this apply to other confidential DSS records, like adult protective services or Work First?
A: The general framework applies to public assistance and social services records generally. 10 NCAC 24B is the broader rule package for confidentiality across DSS programs. The specific statutes for CPS are tighter because of the federal CAPTA overlay, but the basic point that DSS controls its records, not the county board, holds across programs.

Background and statutory framework

NC's social services delivery model is state-supervised and county-administered. The State (now the Department of Health and Human Services, formerly the Department of Human Resources) sets policy and oversees federal funding compliance. Each county runs its own DSS, with a director hired by the county social services board. County commissioners fund the office and have general administrative responsibility for county affairs, but they do not run the DSS day to day.

That divided structure creates friction. Commissioners sometimes want more visibility into DSS operations, especially when controversies arise. The 1994 opinion enforces the line: visibility through proper channels is fine, but unilateral seizure of confidential records is not. The DSS director's authority is statutory and regulatory, and county political bodies cannot displace it.

The opinion is one of several throughout the 1990s and 2000s in which the AG had to remind county officials of the limits on their authority over DSS records. The federal overlay (CAPTA conditions on grant funding) makes the issue more acute than for purely state-law confidentiality questions. NC counties that mishandle CPS records can expose the State to federal compliance findings.

Citations

• N.C.G.S. § 7A-544 (DSS holds child abuse/neglect investigation information in strictest confidence; substantively recodified in Chapter 7B after 1998)
• N.C.G.S. § 7A-675(d) (records of juveniles in protective custody examinable only by court order; recodified in Chapter 7B)
• 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