Opinion
Civil Action 2:07-CV-628.
June 3, 2008
OPINION AND ORDER
Plaintiffs assert claims under the IDEA, 20 U.S.C. § 1415, the Rehabilitation Act, 29 U.S.C. § 794, the ADA, 42 U.S.C. §§ 12131-34, and the Civil Rights Act of 1871, 42 U.S.C. § 1983, alleging that defendants violated the rights of plaintiffs and their minor son, who has been diagnosed with Asperger's Syndrome. Plaintiffs specifically allege that defendants failed to provide the required FATE and IEP for their son, caused a child abuse investigation to be commenced against one or more of the plaintiffs, and subjected their son to abuse. This matter is now before the Court on the Motion to Quash filed by the Monroe County Job and Family Services Agency ("the Agency"), Doc. No. 15 (" Motion to Quash"). Plaintiffs oppose the Motion to Quash and assert their own motion to compel compliance with the subpoena, Doc. No. 17 (" Motion to Compel").
In the Complaint, plaintiffs allege, inter alia, that defendants and other, as yet unidentified, individuals retaliated against plaintiff Jacqueline V. Hupp and her minor son because of their efforts to enforce his rights under federal law "by causing [a] child welfare investigation to be made against his parents." Complaint, ¶ 23. The investigation was terminated with a finding that the allegations of neglect were unsubstantiated. Exhibit A, attached to Motion to Compel.
On December 18, 2007, plaintiffs issued a subpoena to the Agency directing production of the "[c]omplaint or complaints that resulted in the determination, advising that complaint of neglect was unsubstantiated, including all documents associated with that complaint." Exhibit B, attached to Motion to Compel. The director of the Agency declined production, invoking O.R.C. § 5153.17 and expressing the director's intention "to continue the confidentiality of the identity of any individual who reported information in this case." Exhibit C, attached to Motion to Compel.
Plaintiff Jacqueline V. Hupp suspects that the investigation was initiated because she was attempting to enforce her son's rights under federal law. Affidavit of Jackie Hupp, ¶ 2, Exhibit G, attached to Motion to Compel. She bases this suspicion upon the fact that Larry Koslick, the supervisor of special education for the defendant school district, is the brother-in-law of the head of the Agency. Although Mr. Koslick denied, under oath, that he had any involvement in making the neglect complaint, he did so in what plaintiffs perceived to be an "`evasive' manner." Id., ¶ 6. In their Motion to Compel, plaintiffs contend that they are entitled to at least determine "whether or not the complainant had a connection to the defendant school district" and to determine whether the filing of the neglect complaint was "an intimidation tool for frivolous and non-meritorious charges motivated by ill will or animus, rather than the welfare of the child." Motion to Compel, at 8.
The Agency moves to quash the subpoena, taking the position that the Agency "is concerned about the confidence members of the public feel when they decide to report situations that could involve the abuse, neglect, or dependent condition of a child." Motion to Quash, at 3. Specifically, the Agency argues that, "[i]f citizens would come to feel that any report or information would be disclosed publicly, people might choose to `simply not get involved,'" id., at 4, thus leading to even greater risk to the children served by the Agency.
The defendant school district opposes the Motion to Compel, characterizing Jacqueline Hupp's suspicions of retaliation as mere speculation and controverted by the sworn testimony, at the due process hearing, of various school district officials, all of whom testified under oath that they neither made the allegation of abuse nor knew who did so. See Exhibits attached to Defendant Switzerland of Ohio Local School District's Motion in Opposition to Plaintiffs' Motion to Compel, Doc. No. 20.
Plaintiffs have moved to strike the district's memorandum in opposition to the Motion to Compel for lack of standing. Motion to Strike, Doc. No. 21.
The public's interest in maintaining the confidentiality of official records concerning child abuse has been recognized both by the United States Supreme Court and by all fifty states and the District of Columbia. Pennsylvania v. Ritchie, 480 U.S. 39, 61 n. 17 (1987). Ohio law requires that written records of investigations relating to children, as performed by public children services agencies, be maintained in confidence and "shall be open to inspection by the agency, the director of the county department of human services, and by other persons, upon the written permission of the executive secretary. . . ." O.R.C. § 5153.17.
The public children's services agency shall prepare and keep written records of investigations of families, children, and foster homes, and of the care, training and treatment afforded children, and shall prepare and keep such other records as are required by the Department of Job and Family Services. Such records shall be confidential, but, except as provided by division (D) section 3107.17 of the Revised Code, shall be open to inspection by the agency, the director of Job and Family Services, and the director of the county department of Job and Family Services, and by other persons upon the written permission of the executive director.See also Ohio Admin. Code § 5101:2-34-38(A). Moreover, O.R.C. § 2151.421(H)(1) provides as follows:
Any report [of child abuse or neglect] made under this section is confidential. The information provided in the report made pursuant to this section and the name of the person who made the report shall not be released for use, and shall not be used, as evidence in any civil action or proceeding brought against the person who made the report. In a criminal proceeding, the report is admissible in evidence in accordance with the Rules of Evidence and is subject to discovery in accordance with the rules of criminal procedure.
However, even the alleged perpetrator is not to be provided "any information that identifies the person who made the report, statements of witnesses or police or other investigative reports." O.R.C. § 2151.421(H)(1).
The Ohio Supreme Court has held that a children services agency has no duty to permit inspection of its investigative records. State ex rel. Renfro v. Cuyahoga Cty. Dep't of Human Serv., 54 Ohio St.3d 25, 29 (1990). However, the confidentiality of such records and reports is "not absolute." See. e.g., Johnson v. Johnson, 134 Ohio App.3d 579, 582 (Union Cty. Ct. App. 1999) (access to confidential agency documents permitted in custody proceedings); Davis v. Trumbull Cty. Children Serv. Bd., 24 Ohio App.3d 180, 184 (Trumbull Cty. Ct. App. 1985) (same). Cf. Sharpe v. Sharpe, 85 Ohio App.3d 638, 640 (Lake Cty. Ct. App. 1993). See also Farley v. Farley, 952 F.Supp. 1232 (M.D. Tenn. 1997) (access to confidential documents permitted in civil rights action under 42 U.S.C. § 1983 arising out of agency's investigation). The Ohio Court of Appeals in Johnson identified specific circumstances under which disclosure of such documents may be appropriate:
In In Re T.R., 52 Ohio St.3d 6, 16 (1990)), the Ohio Supreme Court recognized the heightened need for confidentiality in regard to cases of child abuse and neglect:
The need for confidentiality is even more compelling in the case of a child who is abused, neglected, or dependent. The delinquent child is at least partially responsible for the case being in court; an abused, neglected, or dependent child is wholly innocent of wrongdoing. While the public arguably has an interest in delinquency proceedings which is analogous to its interest in criminal proceedings, this interest is not present in abuse, neglect, and dependency proceedings.
A court may conduct an in camera inspection of child-abuse records and reports and also has the inherent power to order disclosure of such records and reports where (1) the records and reports are relevant to the pending action, (2) good cause for such a request has been established by the person seeking disclosure, and (3) where admission of the records and reports outweighs the confidentiality consideration set forth in R.C. 5153.17 and R.C. 2151.421(H)(1). Moreover, the term "good cause" has been defined as "the best interest of the child."Johnson, 134 Ohio App.3d at 585. Good cause is also established "when the due process rights of other subjects of the record are implicated." Id., at 583 (quoting 1991 Ohio Atty. Gen. Ops. No. 91-003). For example, a criminal defendant may, under certain circumstances, have a right under the Sixth and Fourteenth Amendments to the United States Constitution to discover exculpatory evidence that may exist in a state's investigative files concerning child abuse. Pennsylvania v. Ritchie, 480 U.S. at 39; Chambers v. Chambers, 137 Ohio App.3d 355, 837-38 (Cuyahoga Cty. Ct. App. 2000); Sharpe, 85 Ohio App.3d at 642. Cf. Brady v. Maryland, 373 U.S. 83 (1963). Similarly, parents facing loss of parental rights in an action instituted by a county children services board may be entitled to the production of agency records as a matter of due process. Davis, 24 Ohio App.3d at 184. See also Hart v. Paint Valley Local School District, 2001 WL 1681140 (S.D. Ohio 2001).
This Court concludes that an in camera inspection of the child abuse records and reports requested by plaintiffs' subpoena is appropriate. Although plaintiffs have offered very little concrete information in support of plaintiff Jacqueline Hupp's speculation that the investigation was initiated by an agent of the defendant school district, the temporal proximity between her efforts on behalf of her son and the unsubstantiated allegations support that speculation. Moreover, the best interest of a minor child is served by minimizing the risk of unfounded retaliatory child abuse allegations and investigations. Finally, the subpoena seeks information reasonably calculated to lead to the discovery of admissible evidence in support of plaintiffs' claim of retaliation. Under all these circumstances, the Court concludes that plaintiffs' interest in the information sought by the subpoena outweighs the confidentiality considerations addressed by O.R.C. §§ 5153.17 and 2151.421(H)(1).
The Motion to Quash, Doc. No. 15, and the Motion to Compel, Doc. No. 17, are GRANTED in part and DENIED in part. The Agency is DIRECTED to submit to the chambers of the undersigned, manually and under seal, the records of the child abuse complaint and investigation relating to plaintiffs for the Court's in camera inspection. If it appears to the Court that the abuse complaint was initiated by an agent of the defendant school district, the Court will direct the disclosure of the documents to plaintiffs on terms calculated to preserve the Agency's — and the public's — confidentiality concerns.
Plaintiffs' Motion to Strike the Memorandum contra the Motion to Compel filed on behalf of the defendant school district, Doc. No. 21, is DENIED.