What are the statutory exemptions relating to abuse records?
There are confidentiality statutes which apply to records of abuse of children or vulnerable adults which are received by the Department of Children and Family Services. A discussion of exemptions relating to abuse records follows; for a more complete listing of exemption summaries, please refer to Appendix D.
1. Records of abuse of children and vulnerable adults
a. Confidentiality of abuse records
Generally, reports of abused children or vulnerable adults which are received by the Department of Children and Family Services (DCF) are confidential and exempt from disclosure, except as expressly provided by statute. See ss. 39.202(1) and 415.107(1), F.S. (abuse reports confidential).
Thus, a union representative may not attend that portion of an investigatory interview between the DCF inspector general and an employee requiring the discussion of information taken from a child abuse investigation that is confidential under s. 39.202, F.S. AGO 99-42. And see s. 383.412(1)(a), F.S., providing that information that reveals the identity of the surviving siblings, family members, or others living in the home of a deceased child who is the subject of review by, and which information is held by, the State Child Abuse Death Review Committee, or a local committee or panel is confidential and exempt from disclosure requirements.
All records and reports of the child protection team of the Department of Health are confidential and exempt, and shall not be disclosed, except, upon request, to the state attorney, law enforcement, DCF, and necessary professionals in furtherance of the treatment or additional evaluative needs of the child, by court order, or to health plan payors, limited to that information used for insurance reimbursement purposes. Section 39.202(6), F.S. Cf. Records of the Children's Advocacy Center of Southwest Florida Relating to Michele Fontanez, No. 06-DR-001850 (Fla. 20th Cir. Ct. June 16, 2006) (newspaper granted access to records of child protection team relating to child in care of DCF who died from injuries sustained from a sexual battery allegedly committed by her stepfather because "[a]ccess to the records will allow the public to fully evaluate the circumstances of [the child's] death").
The following information held by a guardian ad litem (GAL) is confidential and exempt and may not be disclosed except as provided in the exemption: medical, mental health, substance abuse, child care, education, law enforcement, court, social services, and financial records; and any other information maintained by a GAL which is identified as confidential information under Ch. 39, F.S. Section 39.0132(4)(a)2., F.S. And see s. 744.7081, F.S., providing for confidentiality of records held by the Statewide Public Guardianship Office relating to the medical, financial, or mental health of vulnerable adults, persons with a developmental disability, or persons with a mental illness; s. 744.1076, F.S. (except as provided in the exemption, reports of a court monitor which relate to the medical condition, financial affairs, or mental health of a ward are confidential); and s. 744.708(2), F.S. (no disclosure of the personal or medical records of a ward of a public guardian shall be made, except as authorized by law).
b. Release of abuse records
Section 39.2021(1), F.S., authorizes any person or organization, including DCF, to petition the court to make public DCF records relating to its investigation into alleged abuse, neglect, exploitation or abandonment of a child. The court shall determine if good cause exists for public access to the records and is required to balance the best interest of the child and the interests of the child's siblings, together with the privacy rights of other persons identified in the reports against the public interest. Id.
This "balancing process" thus "requires the trial court to weigh the harm to the child against the benefit to the public that would potentially result from the disclosure of the records at issue." In re Records of the Department of Children and Family Services, 873 So. 2d 506, 513 (Fla. 2d DCA 2004). To perform this function, the trial court must conduct an in camera review because "[i]t is impossible to judge the potential impact of the disclosure of information contained in records without knowing what that information is." Id. at 514. But see Department of Health and Rehabilitative Services v. Gainesville Sun Publishing Company, 582 So. 2d 725 (Fla. 1st DCA 1991), holding that the trial court was not required to hold a hearing before finding good cause to release the department's records relating to a child abuse investigation, where shortly after the department's investigation, the individual who had been investigated killed the victim, the victim's family, and himself.
In cases involving serious bodily injury to a child, DCF may petition the court for immediate public release of records pertaining to the protective investigation. Section 39.2021(2), F.S. The court has 24 hours to determine if good cause exists for public release of the records. If no action is taken by the court in that time, DCF may, subject to specified exceptions, release summary information including a confirmation that an investigation has been conducted concerning the victim, the dates and a brief description of procedural activities undertaken in the investigation, and information concerning judicial proceedings. Id.
Similar procedures are established in Ch. 415, F.S., for access to DCF records relating to investigations of alleged abuse, neglect, or exploitation of a vulnerable adult. See s. 415.1071, F.S.
The petitioner seeking public access to the records must formally serve DCF with the petition. Florida Department of Children and Families v. Sun-Sentinel, 865 So. 2d 1278 (Fla. 2004). A "very narrow" exception to the home venue privilege applies when a petition is filed seeking to make DCF records public. See Sun-Sentinel, supra at 1289, adopting the exception in cases "where a party petitions the court for an order to gain access to public records, and where the records sought are by law confidential and cannot be made public without a determination by the court, pursuant to the petition, that good cause exists for public access."
Section 39.202(2)(o), F.S., provides that access to child abuse records shall be granted to any person in the event of the child's death due to abuse, abandonment, or neglect. However, any information identifying the person reporting abuse, abandonment, or neglect, or any information that is otherwise made confidential or exempt by law shall not be released. Id. Section 415.107(3)(l), F.S., provides for similar release of records in the event of the death of a vulnerable adult. And see s. 39.202(4), F.S., authorizing DCF and the investigating law enforcement agency to release certain identifying information to the public in order to help locate or protect a missing child under investigation or supervision of the department or its contracted service providers.
c. Licensure and quality assurance records
Records relating to licensure of foster homes, or assessing how the Department of Children and Family Services is carrying out its duties, including references to incidents of abuse, abandonment, or neglect, contained in such records, do not fall within the parameters of s. 39.202, F.S. AGO 01-54. Such reports are in the nature of quality assurance reports that do not substitute for the protective investigation of child abuse, abandonment, or neglect; to the extent that such incident reports reference an occurrence of abuse, abandonment, or neglect, identifying information that reveals the identity of the victim contained in the reference should be redacted. Id. Cf. s. 409.175(16), F.S., providing an exemption for certain personal information about licensed foster parents, foster parent applicants, and their families. And see Boyles v. Mid-Florida Television Corp., 431 So. 2d 627, 637 (Fla. 5th DCA 1983), approved, 467 So. 2d 282 (Fla. 1985) (summary report compiled during a licensing investigation of a residential facility for developmentally disabled persons, subject to disclosure pursuant to statute [now found at s. 393.067(9), F.S.] providing for public access to inspection reports of such facilities).
2. Domestic violence
Information about clients received by the Department of Children and Family Services or by authorized persons employed by or volunteering services to a domestic violence center, through files, reports, inspection or otherwise, is confidential and exempt from disclosure except as provided by statute. Section 39.908, F.S. Information about the location of domestic violence centers and facilities is also confidential. Id.
A petitioner seeking an injunction for protection against domestic violence may furnish the petitioner's address to the court in a separate confidential filing for safety reasons. Section 741.30(3)(b), F.S. See also s. 119.071(2)(j)1., F.S. (domestic violence victim may file written request, accompanied by official verification that a crime has occurred, to have his or her home or employment address, home or employment telephone number, or personal assets exempt from disclosure); and s. 787.03(6)(c), F.S. (current address and telephone number of the person taking the minor or incompetent person when fleeing from domestic violence and the current address and telephone number of the minor or incompetent person which are contained in the report made to a sheriff or state attorney under s. 787.03[b], F.S., are confidential and exempt from disclosure).
Personal identifying information contained in records documenting an act of domestic violence that is submitted to an agency by an agency employee seeking to take leave under the requirements of s. 741.313, F.S., is confidential and exempt. Section 741.313(7), F.S. A written request for leave submitted by an agency employee and any agency time sheet reflecting such request are confidential and exempt until 1 year after the leave has been taken. Id.
The addresses, telephone numbers, and social security numbers of participants in the Address Confidentiality Program for Victims of Domestic Violence (program) are exempt from disclosure, except as provided in the exemption. Section 741.465(1), F.S. A similar exemption is provided for the names, addresses, and telephone numbers of program participants contained in voter registration and voting records. Section 741.465(2), F.S. Cf. s. 97.0585, F.S., providing that the names, addresses, and telephone numbers of stalking or aggravated stalking victims are exempt from disclosure in the same manner as are participants in the Address Confidentiality Program for Victims of Domestic Violence which are held by the Attorney General, provided that the victim files a sworn statement of stalking with the Attorney General's Office and otherwise complies with the procedures in ss. 741.401-741.409, F.S.
Any information in a record created by a domestic violence fatality review team that reveals the identity of a domestic violence victim or the identity of the victim's children is confidential and exempt from disclosure. Section 741.3165, F.S.
For information regarding the status of abuse records compiled by law enforcement agencies in the course of a criminal investigation, please refer to the discussion in s. G.18.e., supra, relating to victim information contained in crime reports.