Confidentiality laws shield bureaucrats, not children

0 Comments | Insight on the News, Feb 26, 1996 | by Jeffrey R. Sipe

American's cherished right to privacy conflicts with their right to know - both what their government is doing and whether it is doing it competently, especially regarding cases of child abuse.

In a rare display of cross-party unity, New York State lawmakers are poised to pass legislation to change the state's confidentiality laws - the main culprit, many say, in the death of 6-year-old Elisa Izquierdo - allegedly beaten to death by her mother despite the case having been monitored by the New York Child Welfare Administration, or CWA.

In 1995, nearly 60 children in New York City died from allege acts of abuse or neglect, 18 of whom were known to the CWA. Some may have committed suicide or died natural deaths from disease, but critics say the agency should not be monitoring itself. When called to testify before an official inquiry into Elisa's death, for example, Kathryn Croft, New York's child-welfare commissioner, was able to use the shield of confidentiality law to evade questions, effectively nixing any investigation of her agency and its competency.

Confidentiality laws designed to protect children are on the books in some form in every state. Patricia Thompson, a family attorney in Hartford, Conn., is leery about efforts to relax them. "It's a tough call," she tells Insight. "If you gave access to the media, there would be a feeding frenzy... The children are marked for life as it is. They don't need a newspaper article coming back to haunt them 25 years later."

In New York, a panel called the State Investigation Commission issued a report in early January titled, "Secrets that Can Kill: Abuse Investigation in New York State," that declared its child-welfare system "doomed to failure." According to the report, confidentiality laws sometimes do as much to cover up government bungling as to protect the child at risk. "Confidentiality laws mandate silence, and expungement laws mandate ignorance," notes the report. "This leaves a system of child protective services that cannot monitor its own work, is insulated from outside scrutiny and is unable to publicly account for its actions."

Expungement laws require that records of "unfounded" child-abuse complaints be destroyed, often leaving investigators ignorant of previous complaints. As one observer put it, "You can believe it the first time that a mother tells you her child has a gash on his head because he fell while getting out of the bathtub. If there's an injury later and you're aware of the first one, you'll certainly look at it differently."

The New York report recommended that a third classification be added to cases. In addition to "unfounded" (no records kept) and "indicated" (records kept), "suspected" would allow the state to preserve records to give caseworkers a chance to establish a pattern of abuse.

State confidentiality laws generally are drafted in compliance with the federal Child Abuse Prevention and Treatment Act, or CAPTA, which demands confidentiality to protect children but also mandates prompt disclosure to relevant investigatory agencies. Without such compliance, the Department of Health and Human Services can withhold federal funds.

What qualifies as a relevant agency is under dispute, however, at least in the Izquierdo case. Rep. Carolyn Maloney, a Democrat from New York, has requested information on the Izquierdo case through the Health and Human Services Department on the grounds that she has a right to ensure that federal CAPTA funds are spent wisely. So far, the CWA has denied the requests. "They are definitely stonewalling," says Minna Elias, chief of staff in Maloney's New York office. "The authorities that need to know must know."

The veil of secrecy that has hidden the CWA from any public scrutiny, however, is about to be lifted. Gov. George Pataki has joined leaders in the House and Senate to endorse a bill that, in Assembly Speaker Sheldon Silver's words, sets "a more rational standard of confidentiality." Joining Illinois, Texas, Kentucky, Massachusetts, South Carolina and Maryland in loosening confidentiality laws, New York would allow the state's social-services department to authorize local commissioners to release reports when a subject has been charged with any crime involving a child or when a child named in a report has died. Disclosure, however, is not automatic. Commissioners would be able to block the release of information deemed contrary to a child's best interests.

Public scrutiny of its activities may prove to be just the first step in exposing New York's CWA to embarrassment and, perhaps, much more. In another development which may complement state efforts to make the agency more transparent, the federal government has charged the CWA with fraudulently bilking the government out of $37 million.

Specifically, federal prosecutors have accused city and state officials of falsely reporting that services were delivered to thousands of children in foster care. In a civil suit filed in Federal District Court in Manhattan, the prosecutors charge that CWA officials from 1990 to 1994 ordered employees to enter false data into computers as a means of qualifying for millions of dollars in federal funds. Authorities are seeking at least $112 million in damages from the city and the state for the alleged $37.4 million swindle.