A divided Indiana Supreme Court has affirmed summary judgment for the Department of Child Services after one of its employees revealed the name of a child abuse reporter, finding there was no statutory or common law basis to impose a duty of confidentiality.
In John Doe #1, et al v. Indiana Department of Child Services, 49S02-1609-CT-464, John Doe, who lived in a small town in Southern Indiana, regularly drove neighborhood children to church, which caused him to notice that “something wasn’t quite right” with some of his passengers. Doe suspected the children were victims of abuse and neglect, so he called the Department of Child Services’ abuse and neglect hotline to file a report.
While speaking with a DCS employee, Doe explained he did not want others to know he had called. The operator told Doe his identity would be kept confidential, so he provided his first name and phone number.
A few days later, one of Doe’s neighbors began screaming at Doe and waving an unredacted DCS report at him while he was working in his yard. Word of Doe’s report began to spread around the town, and he was labeled a snitch and was subject to the ire of his neighbors. Doe’s wife and children were also subject to threats and taunts, which were bad enough to cause his daughter to need counseling.
The Does sued DCS for negligently disclosing his identity, arguing Indiana Code section 31-33-18-2 implies a private right of action and that the DCS employee created a common law duty of confidentiality when she told Doe his identity would remain confidential. The department moved for summary judgment, which the Marion Superior Court granted.
A divided panel of the Indiana Court of Appeals then reversed the grant of summary judgment, with the majority agreeing with Doe that DCS owed a common-law “private duty” based on the promise of confidentiality. Chief Judge Nancy Vaidik dissented, finding there was no right of action and that the private-duty test could apply only to emergency dispatch situations.
The high court heard oral arguments in the case in November, then affirmed the grant of summary judgment in a divided Thursday opinion.
Chief Justice Loretta Rush, writing for the majority, first noted the objective of Section 2 is to protect all Hoosier children, not individual child abuse reporters. Further, the statute contains two alternative enforcement mechanisms — a conviction of a Class A infraction against a DCS employee who “knowingly or intentionally discloses” confidential information, and the possibility of employee discipline. Thus, there is no inferred private right of action with Section 2, she wrote.
Similarly, Rush said there was not common-law duty on DCS, as the “private duty” test laid out in Mullin v. Municipal City of South Bend, 639 N.E.2d 278, only applies to a government’s promise to send emergency services. Additionally, because the DCS employee merely communicated an existing rule about confidentiality, she did not meet the standard for a “specific undertaking” to create liability under the Restatement (Third) of Torts section 42.
Finally, the high court agreed to consider the belated claim that a duty was created under the three-part test in Webb v. Jarvis, 575 N.E.2d, 992 (Ind. 1991), but the majority found Doe’s argument also failed under that test.
“Regrettably, this result does not undo the wreckage,” Rush wrote. “By relaying the statutory requirement of confidentiality and then violating, DCS exposed an innocent family to harassment and threats.”
Regardless, the majority determined there was no basis for imposing a duty of confidentiality on DCS and affirmed the grant of summary judgment. Justice Steve David, however, wrote in a separate opinion that Doe could bring a common-law negligence claim under Webb, so summary judgment would be inappropriate.
Specifically, David said all three Webb factors — the relationship between the parties, the reasonable foreseeability of harm and public policy concerns — weigh in Doe’s favor because the majority’s ruling could chill reporters from coming forward and because the DCS employee’s promise that “nobody will find out” was an “explicit assurance.”
“It is this extra promise that is beyond the statute that gives rise to the common-law duty in this case,” David wrote.
“While I acknowledge that this case involves a question of law rather than an issue of fact, allowing the claim to proceed is consistent with our state’s constitutional mandate that plaintiffs may seek a remedy and our practice of letting cases proceed to trial,” David continued. “… I believe dismissing his claim on summary judgment might send a message that government actors can make false promises in an effort to achieve a desired result and not be held legally accountable when harm comes to the promise.”
Thus, David would have reversed summary judgment, though he did concur that there is no private right of action under the statute.