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Confidentiality issues raised

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Although a new law enacted this year addresses the release of audio recordings of calls made to the Department of Child Services to report abuse, the law doesn’t discuss the redaction of identifying information of these calls. There is concern in the DCS that if callers’ identities are released to the media, people will be hesitant to report abuse.

The law change came about during a battle between the DCS and the South Bend Tribune in which the newspaper sought records – including the audio recordings made to the agency’s centralized call center – following the death of a St. Joseph County boy. The audio was released by a judge without redaction.
 

15col-confidentiality_payne.jpg DCS Director James Payne stands in the child abuse hotline call center, which was centralized in Indianapolis in 2011. (IL Photo/ Perry Reichanadter)

DCS director James Payne, a former juvenile judge in Marion County, worries that the ruling opens the door for other judges to order similar disclosures. As a result, people might stop reporting possible child abuse situations for fear that their identities will be revealed.

“We’re very concerned about the chilling effect disclosure of these calls might have, whether it’s a person’s name or the information given that could identify who called,” Payne said. “Our interest was always about protecting callers. We don’t know where this will go, but the more it’s talked about, the more potential there is for a caller to think this information might get out.”

The issue surfaced publicly this year, the first time a recorded child abuse hotline call was released to the media and a court challenge fought that disclosure. This case from St. Joseph County pits child safety against the First Amendment right of the media to shine a light on what this centralized call center and state agency are doing to protect children. The decision to move the call center to one location in Indianapolis instead of having locations around the state is questioned by child welfare advocates, juvenile judges, and state lawmakers who wonder whether it would be better to have local DCS officials, case workers or police handle the calls.

As a part of the increased scrutiny on this centralized hotline system, more attention has been on how the DCS responds to calls that come into the hotline and makes determinations about whether any further action is required.

That’s where the St. Joseph County case comes in.

An anonymous caller in May 2011 spent 20 minutes detailing what appeared to be horrific abuse to 10 children at a South Bend residence – six months before police found 10-year-old Tramelle Sturgis tortured and beaten to death in that home. After the call was released to the media, it became clear that the caller urged workers to visit the home to witness the abuse after describing another child’s injuries that left him limping and bleeding in his abdomen.

Two weeks after Tramelle Sturgis was killed in November, the South Bend Tribune filed a public records request with the DCS requesting access to all department reports related to the boy and his family.

Although DCS records are generally confidential, Indiana Code 31-33-18 allows for documents to be released in cases where a fatality or near-fatality has occurred. A court order can be obtained to have the caller’s identifying information redacted in paper record, but the state statute didn’t address the actual audio recordings because lawmakers hadn’t updated the law since the decision to start recording those calls was made four years ago. The DCS turned over documents showing its involvement with the family, but the agency didn’t provide recordings of phone calls from the child abuse hotline as the newspaper requested. The South Bend Tribune then filed another records request, asking for audio files and transcripts of calls made to the hotline about the Sturgis family.

Representing the South Bend Tribune, South Bend attorney Jerry Lutkus with Barnes & Thornburg argued that state law requires the records be censored by a judge to remove identifying information, but that the recordings and transcripts themselves are releasable.

“Though DCS contends the disclosure of public records could endanger children or cause potential abuse reporters to reconsider, it is just as plausible that the disclosure of such records will raise community awareness of the blight of child abuse and engender public action to end it,” Lutkus wrote in a court filing.

Lutkus said the newspaper never intended to publish the identifying information, but wanted access to the recordings and transcript in order to report on the case and how the DCS had responded to allegations.

But the department denied the request for recordings, arguing they were confidential and couldn’t be released. Around this time, Senate Bill 286 was crafted to revise state law about these recorded phone calls to the hotline. The law that takes effect July 1 adds a fifth provision to IC 31-33-18 that specifically exempts from public disclosure and makes confidential any “audio recording of a telephone call to the child abuse hotline.” The new law says that a court order will be the only way to obtain disclosure in a fatality or any type of child abuse allegation. Statutes dealing with redaction weren’t amended to address audio recordings.

St. Joseph Probate Judge Peter Nemeth on March 6 ordered the release of the recorded child abuse hotline calls related to Tramelle Sturgis and his family. The one-page order denies a motion to seal the “confidential information” that included four audio recordings and transcripts.

That caught the department off guard, because they were fully expecting Nemeth to redact the identifying information before turning it over. The statute specifically talks about the judges evaluating the biometrics of a call to determine what might be confidential, Payne said.

Within days, the DCS appealed to the Indiana Court of Appeals to block the disclosure and a story the newspaper planned. Although the story was briefly posted on March 9, the COA blocked the story and the newspaper removed the content from its website. That brought on a concern about First Amendment rights and prior restraint.

The appellate court set an emergency hearing for March 12, but after a new review by attorneys on both sides, an agreement was reached and the appellate court cancelled the hearing. The Office of the Indiana Attorney General took over the case and immediately filed a motion for dismissal, determining the agency’s effort to prevent publication was inconsistent with the First Amendment and the state must rely on journalistic ethics in these situations.

“Prior restraint of the news media publishing public records is inconsistent with the First Amendment,” Attorney General Greg Zoeller said. “As the lawyer for state government, the Office of the Indiana Attorney General now asserts the legal position of the state that in the interest of openness and transparency, the publication of public records should not be halted.”

Indianapolis attorney Paul Jefferson, with Barnes & Thornburg, said the outcome of this situation shows the legal system worked when it was supposed to.

“My takeaway is that when lawyers and judges work through things like the significant interests of child safety and the First Amendment, the system works,” Jefferson said.

But despite the law changes addressing these audio recordings and that the identity was protected in this case, Payne still fears that others might interpret the law as Nemeth did and identifying information could be released to the public.

For one thing, the redaction procedures still don’t specifically mention the hotline’s audio recordings. As its stands now, one trial judge has interpreted Indiana law to require disclosure of these recorded calls without any redaction and the state’s appellate courts haven’t ruled on the issue.

“If someone thinks a judge is going to turn over their name and information provided, then that might prevent them from calling in the first place,” he said.•

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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