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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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