After the 1996 federal Child Abuse Prevention and Treatment Act amendments, what categories of information can the North Carolina Division of Social Services and county DSS agencies release publicly when a child involved in a CPS investigation has died?

Plain-English summary

When a child known to NC's CPS system dies, two interests come into tension: the public's right to know how the State responded, and the privacy interests of the child, the family, and other people whose information sits in the protective services file. NC's strict statutory and regulatory confidentiality regime, anchored in G.S. § 108A-80 (general DSS records) and G.S. § 7A-544 (child abuse and neglect investigation records), generally limits disclosure of DSS information to persons or agencies "directly connected" with administering the programs.

The AG had drawn a balance in a 1991 opinion to then-Governor's-Counsel James R. Trotter. That earlier opinion concluded that case-specific child fatality information was not subject to the Public Records Act, but that the Division of Social Services could still release five categories of information:

1. The name of the deceased child;
2. The fact that a county DSS investigation took place;
3. The fact that State DSS reviewed the county DSS procedures;
4. The result of that review, to the extent it does not disclose case-specific information; and
5. Matters of public record by reference to the public record (such as a conviction for child abuse).

The question revisited here in 1997 was whether the 1996 CAPTA amendments (Pub. L. 104-235) had changed the analysis. CAPTA 1996 added a provision (42 U.S.C. § 5106a(b)(2)(A)(vi)) requiring states that wanted grant funds to have laws or programs allowing "public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality."

Senior Deputy AG Ann Reed and Assistant AG David Gordon concluded that the CAPTA 1996 amendments had no immediate effect on NC's framework because the federal regulations implementing the new disclosure requirement had not yet been promulgated, and NC had not amended its own confidentiality statutes or rules. So the five categories from 1991 continued to define the universe of releasable information.

The second question was whether the county DSS, rather than just the State Division, could make the same five-category disclosure. The AG said yes: a county DSS is accountable to the public for its own programs and is subject to the same federal and state confidentiality rules. There is no rational basis for treating county DSS differently from State DSS for purposes of this public-record-balancing question.

Currency note

This opinion was issued in 1997. 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. NC enacted legislation in 1997 and again in later sessions clarifying the scope of permissible disclosure in child fatality and near-fatality cases (including more detailed disclosure rules now codified at G.S. § 7B-2902 and related provisions). The federal regulations implementing CAPTA's disclosure requirement have been promulgated. The recodification of the juvenile code from Chapter 7A to Chapter 7B also moved many of the relevant cross-references. Anyone making a release decision in a current case should look at the present statutes and regulations.

Background and statutory framework

NC's child protective services framework is built on layers of confidentiality. The general DSS confidentiality statute (G.S. § 108A-80) limits disclosure to purposes "directly connected with the administration" of the public assistance and social services programs. The CPS-specific statute (G.S. § 7A-544, now in Chapter 7B) provides that all information received by a county DSS investigating a report of child abuse or neglect "shall be held in strictest confidence." The Social Services Commission has adopted rules (now codified at 10 N.C.A.C. 24B .0200 et seq. and 10 N.C.A.C. 41I .0313) that operationalize these limits.

The federal layer flows from CAPTA (42 U.S.C. §§ 5101 et seq.) and Title XX of the Social Security Act (42 U.S.C. §§ 1397 et seq.). The implementing regulations at 45 C.F.R. § 205.50 and 45 C.F.R. § 1340.14 require states accepting these funds to keep CPS-records disclosures narrow.

The 1991 AG opinion took the position that the Public Records Act (G.S. ch. 132) did not reach case-specific CPS records because the federal and state confidentiality regimes carved those records out of public-record status. The five-category disclosure framework allowed the public to know that the system had responded, and to confirm or evaluate that response in broad terms, without exposing private information about other family members, reporters, or investigation methodology.

The 1996 CAPTA amendment created a floor for state disclosure laws if the state wanted to keep its CAPTA grant. The federal language required "public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality." Without implementing regulations, that text didn't tell states whether the "findings or information" had to be detailed or summary, whether the disclosure had to be proactive or on request, or whether existing state law was already enough. The 1997 AG opinion held that NC's existing five-category practice would continue until either federal regulations specified more or NC enacted broader state law.

Common questions

What does "case-specific" mean as a confidentiality line?

Case-specific information identifies the family, the individual workers involved, the specific findings of investigation, the specific allegations made, and similar particulars tied to the named case. The opinion treats that kind of information as inside the confidentiality wall. By contrast, the fact that an investigation took place is a meta-fact about agency operations rather than a fact about the family.

Can a county DSS issue a press release on a child fatality case?

Under this 1997 framework, yes, but only the five categories. The county DSS could confirm the child's name, confirm an investigation took place, confirm State DSS review, summarize the result of that review at a non-case-specific level, and reference any matters already in the public record (such as a criminal conviction).

Has NC since enacted broader disclosure laws?

Yes. Later legislative sessions added more detailed disclosure rules for child fatality and near-fatality cases, including specific information that must be made available. Anyone evaluating a current case should consult the current statutory framework rather than this 1997 opinion.

What was the 1991 opinion this one updates?

The 1991 opinion was the original AG analysis of how the Public Records Act, NC's CPS confidentiality statutes, and federal CAPTA rules interacted in a child fatality scenario. It was written for Governor's Counsel James R. Trotter and laid out the five-category framework this 1997 opinion reaffirmed.

Source

• Landing page: https://ncdoj.gov/opinions/release-of-protective-services-information-in-a-child-fatality-case/

Citations

• N.C. Gen. Stat. § 108A-80
• N.C. Gen. Stat. § 7A-544
• 42 U.S.C. § 5101 et seq.
• 42 U.S.C. § 5106a(b)(2)(A)(vi)
• 42 U.S.C. § 1397 et seq.
• Pub. L. No. 104-235 (CAPTA Amendments of 1996)
• 45 C.F.R. § 205.50
• 45 C.F.R. § 1340.14
• 10 N.C.A.C. 24B .0200 et seq.
• 10 N.C.A.C. 41I .0313

Original opinion text

Note: this opinion picks up mid-discussion as captured by the source page; the introductory section identifying the requester and the specific question is not preserved in the source body.

Pursuant to 42 U.S.C.A. §§ 1397 et seq., and the Child Abuse and Neglect Prevention and Treatment Act (42 U.S.C.A. §§ 5101 et seq.), the State must comply with certain federal requirements. One such requirement found in the federal regulations implementing the above provisions, which are set forth in 45 C.F.R. § 205.50 and 45 C.F.R. § 1340.14 respectively, is that a state must limit disclosure of DSS records, more particularly, all records concerning reports and all reports of child abuse and neglect to persons or agencies directly involved with the administration of the programs. In response to these federal requirements, our General Assembly enacted N.C.G.S. § 108A-80, which applies generally to all DSS records and provides that information concerning persons applying for or receiving public assistance or social services may only be disclosed for "…purposes directly connected with the administration of the programs of public assistance and social services in accordance with federal rules and regulations and the rules and regulations of the Social Services Commission or the Department". It has also enacted N.C.G.S. § 7A-544, which applies specifically to child abuse and neglect reports and provides that all information received by a county department of social services when investigating a report of child abuse or neglect shall be held in strictest confidence. Furthermore, the Social Services Commission has adopted rules which have the force and effect of law and basically limit disclosure of client information to persons or agencies directly connected with the programs. The rules pertaining to all DSS records in general are set forth in 10 N.C.A.C. 24B .0200 et seq., and the rule pertaining specifically to protective services records is set forth in 10 N.C.A.C. 41I .0313.

After reviewing the pertinent federal and state law and regulations set forth above, we concluded in our November 21, 1991, opinion to then Counsel for the Governor, James R. Trotter, that case-specific information contained within a child fatality review report was not subject to the Public Records Act. However, we further concluded that that did not mean the public did not have access to certain information when a child who was a subject of a CPS investigation died. In balancing the public's right to know against the privacy interests of third parties, we stated that the following categories of information may be released by the Division of Social Services upon its review of a child fatality:

• The name of the deceased child;
• The fact that an investigation was conducted by the county DSS;
• The fact that State DSS reviewed the county DSS procedures, etc.;
• The result of that review to the extent that it does not disclose any case-specific information; and
• Matters of public record by reference to the public record, such as a conviction for child abuse.

Since the date of our 1991 opinion, Congress has passed P.L. 104-235, the Child Abuse Prevention and Treatment Act (CAPTA) Amendments of 1996. One of these amendments provides that a state, in order to be eligible for CAPTA grants-in-aid, must certify that it has in effect and is enforcing a state law, or has in effect and is operating a statewide program relating to child abuse and neglect that includes "provisions which allow for public disclosure of the findings or information about the case of child abuse or neglect which has resulted in a child fatality or near fatality". 42 U.S.C.A. 5106a(b)(2)(A)(vi). While this amendment may have a future impact on the type and amount of protective services information that may be shared in a child fatality case, no federal regulations have been promulgated, as yet, to implement or clarify any of these amendments. Furthermore, no changes in this area have been made to our state law or regulations which cloak case-specific protective services information with a mantle of strict confidentiality. Therefore, we conclude that the five categories of information as set forth above continue to reflect the scope of information that can be released by the Division of Social Services upon its review of a child fatality:

As to your second question, a county department of social services, like the Division, is accountable to the public for the operation of its governmental programs. Both are also basically subject to the same federal and state laws and regulations regarding the confidentiality of protective services information. Hence, there is no plausible reason to differentiate between a county DSS and the Division of Social Services when balancing the public's right to know against the privacy interests of third parties. Therefore, we conclude that in a child fatality case, a director of a county department of social services may also release the same five categories of information set forth above when the county DSS has had prior protective services involvement with the family and the Division will be conducting a formal review.

We trust that this fully answers your questions on this matter. Please do not hesitate to contact us if we can be of any further assistance to you.

Ann Reed
Senior Deputy Attorney General

David Gordon
Assistant Attorney General