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DCS insists no right to sue over disclosed identity

November 8, 2016

A state attorney argued before the Indiana Supreme Court Thursday that the Department of Child Services cannot be sued by a man who reported suspected child abuse but whose promise of confidentiality was violated when his identity was disclosed to those he reported.

“Plaintiffs do not have a private right of action,” Deputy Attorney General Frances Barrow told justices who heard a case in which the man seeks to sue the state agency for damages. “I’m not saying that’s fair. I’m not saying that’s good.”

“So the recourse is zero? Tough luck, too bad, sorry Charlie?” Justice Geoffrey Slaughter asked.

Barrow said that’s not how she’d characterize it, but the Legislature had not provided a private right of action in the Indiana statute that requires Hoosiers report suspected child abuse.

That’s what John Doe #1 did, said his attorney, Christopher Wyant. Doe told a DCS employee who took the report that he didn’t want to give his name when he was asked, after providing his suspicions of abuse in Oolitic. He ultimately gave his name, but only after he was assured that his identity would be kept confidential — a duty placed on DCS under I.C. 31-33-18-2.

Wyant argued that without a private cause of action to protect people whose identity is disclosed, DCS’ confidentiality duty is hollow. “Either there’s confidentiality or not,” he said, noting a private cause of action is the key to enforcing the confidentiality requirement. Otherwise, he said, it’s “just a suggestion.”

In addition to Wyant’s claim that his client has a private right of action for violation of the statute, he argued John Doe #1 also has a common law negligence claim under a detrimental reliance argument. Doe relied on assurances his identity would be held in confidence, but the promise was violated.

But Chief Justice Loretta Rush suggested that the court ruling as Wyant asked could open the state to untold liability, and Justice Mark Massa said a body of caselaw supports the theory that there is no implied private right of action against state actors.  

Barrow also argued that the court’s analysis should focus on who primarily benefits from the statute — children who are the victims of abuse and neglect. Rush expressed doubts about providing reporters of suspected abuse with a private right of action where the court has held that victims of child abuse have no private right of action under the reporting statute. But Slaughter noted in this instance, the confidentiality provision in the statute is mainly for the benefit of the person making the report.

Wyant and some justices said that if reporters of suspected child abuse couldn’t reasonably rely on the promise of confidentiality that it could have a chilling effect on people reporting suspected abuse. Justice Steven David noted Hoosiers are required by law to report suspected child abuse and can face criminal penalties for failing to do so. One the other side, though, he said DCS has a duty to redact a reporter’s name, but no apparent consequences for failing to do so.

Barrow noted that a DCS worker who intentionally discloses confidential information can face criminal charges. In this case, attorneys on both sides said there is no indication the information was intentionally released, but nevertheless, Barrow said DCS employees who release information that should be redacted can face professional consequences up to and including termination.

In this case, John Doe #1, et al. v. Indiana Department of Child Services, a Marion County trial court granted summary judgment in favor of the agency, but a divided Court of Appeals panel reversed. The COA majority held Doe had a common law right of action because of the private duty owed to him by DCS.

Thursday’s Supreme Court oral arguments may be viewed here.

Read more about this case in the Nov. 16 issue of Indiana Lawyer.

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