When someone subpoenas a Tennessee Child Advocacy Center's confidential child sexual abuse investigation records, must the CAC produce them, or are they protected?

Subject

Opinion No. 11-21, Confidentiality of Records and Testimony Regarding Child Sexual Abuse Investigations, March 11, 2011

Plain-English summary

A Child Advocacy Center (CAC) is a multidisciplinary program that brings together law enforcement, prosecutors, child protective services, medicine, and mental health professionals to investigate and respond to child sexual abuse cases. The CAC interviews, the documents the CAC produces, and the records the CAC receives from cooperating agencies are highly sensitive: they involve a child victim, contain detailed accounts of abuse, and often identify a reporter whose identity is itself protected by statute.

Tenn. Code Ann. § 37-1-612 makes "all records concerning reports of child sexual abuse" and "information directly or indirectly derived from the records" confidential. Live testimony derived from the records gets the same protection. The statute then lists specific exceptions for people and entities that may need access: Department of Children's Services employees, an attorney or guardian ad litem acting on behalf of the child, law enforcement agencies investigating child sexual abuse, grand juries, and members and staff of the Tennessee Claims Commission, among others.

A state representative and state senator asked: can someone outside the enumerated exceptions subpoena CAC records?

The AG's answer is no, with one important exception for criminal defendants:

1. Strict adherence to the statutory list. The Tennessee Court of Appeals in Canady v. Tolliver, 1994 WL 312869 (Tenn. Ct. App. July 1, 1994), refused to order disclosure of similar records to a minor abuse victim pursuing a civil damages case, holding that § 37-1-612 was "all-inclusive and the exceptions limited." Since Canady, the legislature has expanded the exception list (one of which would now cover the Canady facts, under § 37-1-612(c)(6)), but the underlying principle remains: unless the requestor falls into an enumerated exception, the records remain confidential and cannot be disclosed.

2. DCS protective-use authority. Section 37-1-612(h) allows the Department of Children's Services to disclose "any relevant information" to a court, administrative board, or hearing officer in order to protect a child. The Court of Appeals in Munke v. Munke, 882 S.W.2d 803 (Tenn. Ct. App. 1994), extended that authority to "those entities acting at [DCS's] behest," meaning a CAC investigating in cooperation with DCS can produce records to protect a child. The court receiving the disclosure may seal the records.

3. Criminal defendants' Ritchie rights. The U.S. Supreme Court held in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), that the Fourteenth Amendment entitles a criminal defendant to have child protective services files reviewed by the trial court to determine whether they contain exculpatory information. The defendant must first establish a basis for believing the files contain exculpatory material; if so, the court conducts an in camera review and orders disclosure of any genuinely exculpatory documents. Tennessee criminal cases pre-Ritchie analysis (State v. Gibson, State v. Simpson, State v. Hall) held the records confidential, but later cases (State v. Smith) applied Ritchie to require in camera review where defendants make the threshold showing.

4. Continuing confidentiality after disclosure. Once disclosed to a permitted recipient, the records remain confidential. The recipient must use them only for the specific statutory purpose (civil damages action under § 37-1-612(c)(6), child protection under § 37-1-612(h), and so on).

The opinion also notes that the analysis applies equally to other entities holding child sexual abuse investigation records, not only CACs, and that information identifying a reporter of harm must always be redacted (releasable only under § 37-1-612(h)).

Currency note

This opinion was issued in 2011. 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.

Common questions

Who can definitely access CAC records?

The statutory list in § 37-1-612 (the version in effect when the opinion issued) included Department of Children's Services employees, an attorney or guardian ad litem acting on behalf of the child, law enforcement agencies investigating child sexual abuse, grand juries, and members and staff of the Tennessee Claims Commission, among others. The statute should be consulted directly for the current full list.

What if a defense attorney subpoenas the records in a criminal case?

The CAC should ordinarily resist disclosure on confidentiality grounds. But under Pennsylvania v. Ritchie, the trial court may, on a sufficient threshold showing by the defendant that the records contain exculpatory evidence, order the records produced for in camera judicial inspection. If the court finds exculpatory information, the relevant documents may then be disclosed to the defendant. This procedure protects both the child's confidentiality and the defendant's constitutional rights.

Can a civil plaintiff who is also the abused child get the records?

Generally yes, under a current statutory exception. The Canady decision in 1994 said no to a minor civil plaintiff because the relevant exception did not yet exist. The legislature later added § 37-1-612(c)(6), which would now likely permit such access. Each statutory exception should be checked against the requestor's status and the purpose of the request.

What if records are subpoenaed in a divorce or custody case?

If DCS is involved and disclosure would protect the child, § 37-1-612(h) and Munke v. Munke authorize the court (or DCS or an entity acting at DCS's behest, like a cooperating CAC) to produce relevant records. The court may seal the records. If DCS is not involved and the requestor is not within a statutory exception, the CAC should resist disclosure.

Does the analysis change if the CAC is asked to produce records that come from another agency?

No. The statute reaches "all records concerning reports of child sexual abuse" and "information directly or indirectly derived from the records." Records the CAC obtained from other agencies as part of its multidisciplinary investigation are within the same confidentiality protection.

What about live testimony from a CAC interviewer?

The same rule. Tenn. Code Ann. § 37-1-612 covers both records and "information directly or indirectly derived from the records." Live testimony recounting what a CAC interviewer saw, heard, or learned through the investigation is protected to the same extent as the written records.

Are juvenile court proceedings already protected enough that a separate confidentiality analysis isn't needed?

In juvenile court, yes, mostly. Tenn. R. Juv. P. 27(a)(1) allows the court to exclude the public from juvenile proceedings, and Tenn. Code Ann. § 37-1-153 limits access to juvenile court files. In circuit or chancery court proceedings, additional measures (a protective order, sealing) may be necessary to maintain confidentiality of CAC records introduced as evidence.

Background and statutory framework

The CAC framework:

• Tenn. Code Ann. § 9-4-213 sets out the eligibility criteria for state funding of CACs, including § 9-4-213(a)(4) (facilitate use of a multidisciplinary team to assess victims of child abuse and their families), § 9-4-213(a)(5) (coordinate efficient disposition of cases through civil and criminal justice systems), and § 9-4-213(a)(6) (provide needed services or referrals).
• Tenn. Code Ann. § 37-1-607(a)(2) makes a CAC designee a statutorily-required member of the child investigative team in some circumstances.

The confidentiality framework:

• Tenn. Code Ann. § 37-1-612(a): "all records concerning reports of child sexual abuse" and "information directly or indirectly derived from the records" are confidential. Live testimony derived from the records is similarly protected.
• Tenn. Code Ann. § 37-1-612(b) and (c) list the specific exceptions, including Department of Children's Services employees, attorneys or guardians ad litem acting for the child, law enforcement agencies investigating child sexual abuse, grand juries, the Tennessee Claims Commission, and others.
• Tenn. Code Ann. § 37-1-612(h) authorizes DCS to disclose relevant information to a court, administrative board, or hearing officer to protect a child. The receiving tribunal may seal the records.
• Tenn. Code Ann. § 37-1-612 (note 2 in opinion): information identifying a reporter of harm must be redacted, releasable only under subsection (h).

The case law applying confidentiality:

• Canady v. Tolliver, 1994 WL 312869 (Tenn. Ct. App. July 1, 1994): refused civil disclosure to minor abuse victim, holding statute "all-inclusive and the exceptions limited."
• Munke v. Munke, 882 S.W.2d 803 (Tenn. Ct. App. 1994): § 37-1-612(h) protective-use authority extends to "those entities acting at [DCS's] behest."
• State v. Gibson, 973 S.W.2d 231 (Tenn. Ct. App. 1998); State v. Simpson, 2007 WL 135609 (Tenn. Crim. App. Jan. 19, 2007); State v. Hall, 2007 WL 2917784 (Tenn. Crim. App. Oct. 9, 2007): pre-Ritchie line holding child sexual abuse records confidential and not discoverable by criminal defendants.
• State v. Smith, 2008 WL 5272480 (Tenn. Crim. App. Dec. 19, 2008): applied Pennsylvania v. Ritchie to require in camera judicial review in appropriate circumstances.

The constitutional overlay:

• Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987): the Fourteenth Amendment entitles a criminal defendant to have child protective services files reviewed by the trial court for exculpatory information, provided the defendant establishes a basis to believe the files contain such information.

Putting it together, the AG's framework for a CAC facing a subpoena:

1. Is the requestor on the statutory list under § 37-1-612(b) or (c)? If yes, produce the records.
2. Is DCS asking the CAC (acting at DCS's behest) to disclose for child-protection purposes under § 37-1-612(h)? If yes, produce.
3. Is this a criminal defendant subpoena? Resist routine disclosure, but if the defendant makes a showing that the records contain exculpatory evidence under Ritchie, the trial court will order in camera review. Comply with the court's order.
4. None of the above? Resist disclosure, and litigate the confidentiality issue if necessary.

Citations

• Tenn. Code Ann. § 9-4-213(a)(4)-(6) (CAC eligibility criteria)
• Tenn. Code Ann. § 37-1-153 (juvenile court records access)
• Tenn. Code Ann. § 37-1-402 (child welfare public policy)
• Tenn. Code Ann. § 37-1-601 (child sexual abuse investigation framework)
• Tenn. Code Ann. § 37-1-607(a)(2) (child investigative team)
• Tenn. Code Ann. § 37-1-612 (confidentiality of child sexual abuse records)
• Tenn. Code Ann. § 37-1-612(a) (general confidentiality rule)
• Tenn. Code Ann. § 37-1-612(b)(1)-(2) (exceptions: DCS employees and others)
• Tenn. Code Ann. § 37-1-612(c)(1), (3), (6), (8) (additional exceptions)
• Tenn. Code Ann. § 37-1-612(h) (DCS protective-use authority)
• Tenn. R. Juv. P. 27(a)(1) (closure of juvenile court proceedings)
• Pennsylvania v. Ritchie, 480 U.S. 39 (1987)
• Canady v. Tolliver, 1994 WL 312869 (Tenn. Ct. App. July 1, 1994)
• Munke v. Munke, 882 S.W.2d 803 (Tenn. Ct. App. 1994)
• State v. Gibson, 973 S.W.2d 231 (Tenn. Ct. App. 1998)
• State v. Simpson, 2007 WL 135609 (Tenn. Crim. App. Jan. 19, 2007)
• State v. Hall, 2007 WL 2917784 (Tenn. Crim. App. Oct. 9, 2007)
• State v. Smith, 2008 WL 5272480 (Tenn. Crim. App. Dec. 19, 2008)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-021.pdf

Original opinion text

Confidentiality of Records and Testimony Regarding Child Sexual Abuse Investigations

QUESTION

Are files, interviews, documents, and reports of a Child Advocacy Center that are covered by the confidentiality provisions of Tenn. Code Ann. § 37-1-612 subject to being subpoenaed by anyone not specifically authorized by the statute?

OPINION

No; information covered by the confidentiality provisions of Tenn. Code Ann. § 37-1-612 may only be subpoenaed pursuant to the exceptions contained in Tenn. Code Ann. § 37-1-612 (b), (c), or (h), although a criminal defendant may be entitled to subpoena such records for in camera review for exculpatory evidence.

ANALYSIS

A Child Advocacy Center (CAC) provides a child-focused program in which representatives of many disciplines, including law enforcement, prosecution, child protection, medicine, and mental health, work together to conduct interviews and make team decisions about the investigation, treatment, management, and prosecution of child sexual abuse cases. Tennessee Chapter of Children's Advocacy Centers, http://www.tncac.org/ (last visited February 28, 2011). In order to be eligible to receive state funds, a CAC must, among other things, facilitate the use of a multidisciplinary team to assess victims of child abuse and their families and to determine the need for appropriate services. Tenn. Code Ann. § 9-4-213(a)(4). A CAC must also work with the multidisciplinary team to coordinate efficient and appropriate disposition of child abuse cases through the civil and criminal justice systems and provide needed services or referrals to such services. Tenn. Code Ann. § 9-4-213(a)(5) and (6). In some circumstances, a CAC's designee serves as a statutorily-required member of the child investigative team. Tenn. Code Ann. § 37-1-607(a)(2). Accordingly, the CAC plays an important role in both the civil and criminal aspects of child abuse cases.¹

CAC personnel regularly develop records and gain specific knowledge of the abuse suffered by children though interviews and information shared from other agencies. In recognition of the sensitive nature of this information and to protect the rights of child victims and their families, "all records concerning reports of child sexual abuse" and "information . . . directly or indirectly derived from the records" are confidential and may only be disclosed as authorized by statute. Tenn. Code Ann. § 37-1-612(a). Live testimony derived from the records, like the records themselves, may be provided only as authorized by statute.

The release of such confidential records and testimony is necessary in some circumstances. Therefore, access to the records is permitted to a specified list of individuals and entities that the Legislature has determined may have a need for such information. This list includes, but is not limited to, employees of the Department of Children's Services, an attorney or guardian ad litem acting on behalf of the child, law enforcement agencies investigating child sexual abuse, a grand jury, and members and staff of the Tennessee Claims Commission.² Tenn. Code Ann. § 37-1-612(b)(1), (2), (c)(1), (3), and (8). If one of the individuals or entities specifically excepted from the confidentiality provisions by Tenn. Code Ann. § 37-1-612 (b) or (c) subpoenas records of a CAC, the records should be produced.

Courts have insisted on strict adherence to the statutory exceptions. In Canady v. Tolliver, 1994 WL 312869 (Tenn. Ct. App. July 1, 1994), a minor victim of abuse sought records from the Department of Human Services to use in a civil lawsuit seeking damages for assault and battery and sexual abuse.³ The Court of Appeals refused to order that the documents be disclosed, finding that the statute was "all-inclusive and the exceptions limited." Canady, 1994 WL 312869 at *4. Because a minor plaintiff in a civil lawsuit was not, at the time, among the exceptions, the court found that the records were not subject to disclosure. Since Canady, Tenn. Code Ann. § 37-1-612 has been expanded to include new exceptions, one of which would have allowed the child in Canady access to the records he requested. Tenn. Code Ann. § 37-1-612(c)(6). However, the rule from Canady remains intact — unless the requestor of the records falls into one of the enumerated exceptions, the records remain confidential and cannot be disclosed. Accordingly, if records or testimony are requested of the CAC by an individual or entity that is not an exception to the confidentiality statute, the CAC should resist disclosure of the requested information.

In addition to its enumerated specific exceptions, Tenn. Code Ann. § 37-1-612 allows the Department of Children's Services to disclose "any relevant information" to a court, administrative board, or hearing officer in order to protect children from child abuse or neglect or sexual abuse. Tenn. Code Ann. § 37-1-612(h). The Tennessee Court of Appeals has applied this statute to the Department "and those entities acting at its behest." See Munke v. Munke, 882 S.W.2d 803, 806 (Tenn. Ct. App. 1994). Therefore, if records are requested in order to protect a child, and the CAC is investigating in cooperation with the Department, it would be appropriate for the CAC to produce those records. Tenn. Code Ann. § 37-1-612(h); Munke, 882 S.W.2d at 806. If there is a disagreement as to what information should be disclosed, the tribunal may enter an order allowing access to any information it finds necessary for the proper disposition of the case. Id. In addition, the court, administrative board, or hearing officer may order that any information disclosed in such a proceeding be placed under seal. Tenn. Code Ann. § 37-1-612(h).

Once in the possession of the person or entity who may obtain records of a child sexual abuse investigation, such information remains confidential and should be used only for its specific purpose under the statute, for example, to seek civil damages against a perpetrator of abuse in the case of Tenn. Code Ann. § 37-1-612(c)(6), or for other purposes directly connected with the administration of the child abuse statutes, i.e., protecting children from abuse. Tenn. Code Ann. §§ 37-1-402, 37-1-601. To that end, the information may be used and disclosed by the Department of Children's Services in civil dependency and neglect and termination of parental rights proceedings or by any court, administrative board, or hearing officer in order to protect a child from child abuse, neglect, or sexual abuse. Tenn. Code Ann. § 37-1-612(h).⁴

There are additional considerations when a defendant in a criminal case requests access to records of a child sexual abuse investigation.⁵ The United States Supreme Court has held that a criminal defendant is entitled to have child protective services files reviewed by the trial court to determine whether the files contain exculpatory information. Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987). In Ritchie, a criminal defendant sought access to the state's confidential juvenile records relating to alleged abuse he committed against his children. Ritchie, 480 U.S. at 43. The Court analyzed the case under the Fourteenth Amendment, holding:

Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances.

---

Ritchie is entitled to have the [child protective services agency's] file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by [the child protective services agency] contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.

Ritchie, 480 U.S. at 57-58. The Court went on to explain that the defendant must first establish a basis for his claim that the file contains exculpatory information. Ritchie, 480 U.S. at 85, n.15. Thus, when a criminal defendant makes a showing that records of a child sexual abuse investigation contain potentially exculpatory evidence, the court may order the records to be submitted for in camera inspection by the judge to determine whether there is, in fact, relevant exculpatory information. Ritchie, 480 U.S. at 57-58. If exculpatory information exists in the files, the court may order that the relevant documents be disclosed to the defendant.

A number of Tennessee criminal cases have held that records of child sexual abuse investigations are confidential and, therefore, not discoverable by a defendant in a criminal case. See, e.g., State v. Gibson, 973 S.W.2d 231 (Tenn. Ct. App. 1998); State v. Simpson, 2007 WL 135609 (Tenn. Crim. App. Jan. 19, 2007); State v. Hall, 2007 WL 2917784 (Tenn. Crim. App. Oct. 9, 2007). However, none of these cases analyze the issue of potentially exculpatory evidence in light of Pennsylvania v. Ritchie; Ritchie supports this general proposition but effectively creates an exception to it. Tennessee cases applying the Ritchie decision have, in appropriate circumstances, determined that confidential records should have been reviewed by the trial court in camera for exculpatory evidence. See, e.g., State v. Smith, 2008 WL 5272480 (Tenn. Crim. App. Dec. 19, 2008). Accordingly, we believe that when a criminal defendant requests that the court review CAC records, and the defendant can make a showing that the records contain potentially exculpatory evidence, the records should be produced for in camera inspection.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Associate Solicitor General

ELIZABETH C. DRIVER
Senior Counsel

Requested by:
Honorable Richard Montgomery, State Representative, 109 War Memorial Building, Nashville, TN 37243
Honorable Doug Overbey, State Senator, 306 War Memorial Building, Nashville, TN 37243