ILNews

Confidentiality issues raised

Back to TopCommentsE-mailPrintBookmark and Share

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.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Falk said “At this point, at this minute, we’ll savor this particular victory.” “It certainly is a historic week on this front,” Cockrum said. “What a delight ... “Happy Independence Day to the women of the state of Indiana,” WOW. So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)

  2. congratulations on such balanced journalism; I also love how fetus disposal affects women's health protection, as covered by Roe...

  3. It truly sickens me every time a case is compared to mine. The Indiana Supreme Court upheld my convictions based on a finding of “hidden threats.” The term “hidden threat” never appeared until the opinion in Brewington so I had no way of knowing I was on trial for making hidden threats because Dearborn County Prosecutor F Aaron Negangard argued the First Amendment didn't protect lies. Negangard convened a grand jury to investigate me for making “over the top” and “unsubstantiated” statements about court officials, not hidden threats of violence. My indictments and convictions were so vague, the Indiana Court of Appeals made no mention of hidden threats when they upheld my convictions. Despite my public defender’s closing arguments stating he was unsure of exactly what conduct the prosecution deemed to be unlawful, Rush found that my lawyer’s trial strategy waived my right to the fundamental error of being tried for criminal defamation because my lawyer employed a strategy that attempted to take advantage of Negangard's unconstitutional criminal defamation prosecution against me. Rush’s opinion stated the prosecution argued two grounds for conviction one constitutional and one not, however the constitutional true threat “argument” consistently of only a blanket reading of subsection 1 of the intimidation statute during closing arguments, making it impossible to build any kind of defense. Of course intent was impossible for my attorney to argue because my attorney, Rush County Chief Public Defender Bryan Barrett refused to meet with me prior to trial. The record is littered with examples of where I made my concerns known to the trial judge that I didn’t know the charges against me, I did not have access to evidence, all while my public defender refused to meet with me. Special Judge Brian Hill, from Rush Superior Court, refused to address the issue with my public defender and marched me to trial without access to evidence or an understanding of the indictments against me. Just recently the Indiana Public Access Counselor found that four over four years Judge Hill has erroneously denied access to the grand jury audio from my case, the most likely reason being the transcription of the grand jury proceedings omitted portions of the official audio record. The bottom line is any intimidation case involves an action or statement that is debatably a threat of physical violence. There were no such statements in my case. The Indiana Supreme Court took partial statements I made over a period of 41 months and literally connected them with dots… to give the appearance that the statements were made within the same timeframe and then claimed a person similarly situated would find the statements intimidating while intentionally leaving out surrounding contextual factors. Even holding the similarly situated test was to be used in my case, the prosecution argued that the only intent of my public writings was to subject the “victims” to ridicule and hatred so a similarly situated jury instruction wouldn't even have applied in my case. Chief Justice Rush wrote the opinion while Rush continued to sit on a committee with one of the alleged victims in my trial and one of the judges in my divorce, just as she'd done for the previous 7+ years. All of this information, including the recent PAC opinion against the Dearborn Superior Court II can be found on my blog www.danbrewington.blogspot.com.

  4. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  5. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

ADVERTISEMENT