Decided March 15, 2010.
Upon the foregoing papers it is ordered that the motion is GRANTED.
Charlene M. Indelicato, County Attorney for Department of Social Services, White Plains, New York.
Finkelstein Partners, LLP, Attorneys for Plaintiffs, Newburgh, New York.
O'Connor, McGuinness, Conte, Doyle Oleson, Attorneys for Bedford Central School District, White Plains, New York.
Factual and Procedural Background
In this action, commenced in the Spring of 2007, infant plaintiff alleges that she was sexually abused in her home, from December 2005 to August 2006, by her mother's (plaintiff A.D.) boyfriend and that the defendant Bedford Central School District ("the School District"), defendant Victoria Graboski (former principal of Bedford Hills Elementary School) and defendant Kelly Cieslinski-Schleuter (former school psychologist for Bedford Hills Elementary School) were negligent in failing to report suspected abuse.
Gracy Rivera, Sr. Social Caseworker was assigned to investigate three reports made to the State Central Register of Child Abuse and Maltreatment in connection with the G-D. family on August 17, 2006, September 2, 2006 and September 8, 2006. After River completed her investigation, the September 2nd and 8th reports were "unfounded." The August 17, 2006 report was "indicated".
On June 17, 2009, the School District served a Subpoena Duces Tecum dated June 17, 2009 on the Westchester County Attorney's office requiring the presence of the County Attorney to give testimony under oath in this action and seeking the production of the original Westchester County Department of Social Services files and records of D. M. G-D. and A.D. as well as the original Westchester County Child Protective Service records of D.M. G-D. and A.D.
The Westchester County Department of Social Services ("DSS") now moves to quash the subpoena on the ground that the "unfounded" reports cannot be produced pursuant to Social Services Law § 422(5). Plaintiffs join DSS in their motion to quash.
The School District opposes the motion on the ground that they have received HIPAA-compliant authorizations signed by A. D. on behalf of D. M. G-D. for the records from DSS and Child Protective Services and Family Services of Westchester. The School District also contends that in order to defend the allegations against it they have a right to review previous reports of abuse and, in particular, those deemed "unfounded." At the very least, the School District claims that it is entitled to an in camera review of the "unfounded" reports. The School District contends that the reports are crucial to the issue of liability and damages as well as to the credibility of witnesses in this case including the plaintiffs.
Social Services Law § 422(5) provides:
Unless an investigation of a report . . .determines that there is some credible evidence of the alleged abuse or maltreatment, all information identifying the subjects of the report and other persons named in the report shall be legally sealed forthwith by the central register and any local child protective services or the state agency which investigated the report.
The statute directs that these "unfounded" reports may only be unsealed, disseminated and made available to certain individuals and agencies, none of which is this Court. Nonetheless, Social Services Law § 422(5)(a)(iv) does permit the reports to be disclosed to "the subject of the report."
Social Services Law § 412 (4) defines the term "subject of the report" as "any parent of guardian of, custodian of or other person eighteen years of age or older legally responsible for . . . a child reported to the central register of child abuse and maltreatment who is allegedly responsible for causing injury, abuse or maltreatment of such child . . ." Here, while the infant plaintiff is a "person named in the report," she is not the subject of the report and as such the HIPAA-compliant authorizations for the release of the "unfounded reports" cannot circumvent the protections provided for in the Social Services Law ( See Social Services Law § 422[a][iv]; see cf. Lamot v. City of New York, 297 AD2d 527 [1st Dept 2002]).
To the extent that DSS claims it will provide all other records demanded in the June 17, 2009 subpoena in a redacted form "in accordance with federal and state law," DSS is directed to submit to this Court, for its in camera review, copies of all the documents in their unredacted form together with copies of the documents in their redacted form along with the "federal and state law" relied upon by DSS for redacting any particular information.
On account of the foregoing, the motion to quash is GRANTED as detailed herein.