Current through 2019-2020 Chapter 609
Section 49-5-41 - Persons and agencies permitted access to records(a) Notwithstanding Code Section 49-5-40, the following persons or agencies shall have reasonable access to such records concerning reports of child abuse: (1) Any federal, state, or local governmental entity, tribal entity, or any agency of any such entity that has a need for information contained in such records in order to carry out its legal responsibilities to protect children from child abuse and neglect;(2) A grand jury by subpoena upon its determination that access to such records is necessary in the conduct of its official business;(3) A prosecuting attorney in this state or any other state or political subdivision thereof, or for the United States, who may seek such access in connection with official duty;(4) Any adult who makes a report of suspected child abuse as required by Code Section 19-7-5, but such access shall include only notification regarding the child concerning whom the report was made, shall disclose only whether the investigation by the department or governmental child protective agency of the reported abuse is ongoing or completed and, if completed, whether child abuse was confirmed or unconfirmed, and shall only be disclosed if requested by the person making the report;(5) (A) Any entity that receives from a school employee a report of suspected child abuse as required by Code Section 19-7-5.(B) Within 24 hours of receiving such report, such entity shall acknowledge, in writing, the receipt of such report to the reporting individual. Within five days of completing the investigation of the suspected child abuse, such entity shall disclose, in writing, to the school counselor for the school such child was attending at the time of the reported child abuse whether the suspected child abuse was confirmed or unconfirmed. If a school does not have a school counselor, such disclosure shall be made to the principal.(C) As used in this paragraph, the term:(i) "Entity" means a child welfare agency providing protective services as designated by the department or, in the absence of such agency, a law enforcement agency or prosecuting attorney.(ii) "School" shall have the same meaning as set forth in Code Section 19-7-5;(6) Any adult requesting information regarding investigations by the department or a governmental child protective agency regarding the findings or information about the case of child abuse or neglect involving a fatality or near fatality; provided, however, that the following may be redacted from such records: (A) Any record of law enforcement or prosecution agencies in any pending investigation or prosecution of criminal activity contained within the child abuse, neglect, or dependency records;(A.1) Any part of a record of the department or a governmental child protective agency that includes information provided by law enforcement or prosecution agencies in any pending investigation or prosecution of criminal activity contained within the child abuse, neglect, or dependency records;(B) Medical and mental health records made confidential by other provisions of law;(C) Privileged communications of an attorney;(D) The identifying information of a person who reported suspected child abuse;(E) Information that may cause mental or physical harm to the sibling or other child living in the household of the child being investigated;(F) The name of a child who is the subject of reported child abuse or neglect;(G) The name of any parent or other person legally responsible for the child who is the subject of reported child abuse or neglect, provided that such person is not under investigation for the reported child abuse or neglect; and(H) The name of any member of the household of the child who is the subject of reported child abuse or neglect, provided that such person is not under investigation for the reported child abuse or neglect;(7) The State Personnel Board, by administrative subpoena, upon a finding by an administrative law judge appointed by the chief state administrative law judge pursuant to Article 2 of Chapter 13 of Title 50, that access to such records may be necessary for a determination of an issue involving departmental personnel and that issue involves the conduct of such personnel in child related employment activities, provided that only those parts of the record relevant to the child related employment activities shall be disclosed. The name of any complainant or client shall not be identified or entered into the record;(8) A child advocacy center that has a need for information contained in such records in order to carry out its legal responsibilities to protect children from child abuse or neglect;(9) Police or any other law enforcement agency of this state or any other state or any medical examiner or coroner investigating a report of known or suspected child abuse or any review committee or protocol committee created pursuant to Chapter 15 of Title 19, it being found by the General Assembly that the disclosure of such information is necessary in order for such entities to carry out their legal responsibilities to protect children from child abuse and neglect, which protective actions include bringing criminal actions for such child abuse or neglect, and that such disclosure is therefore permissible and encouraged under the 1992 amendments to Section 107(b)(4) of the Child Abuse Prevention and Treatment Act, 42 U.S.C. Section 5106(A)(b)(4);(10) The Governor, the Attorney General, the Lieutenant Governor, or the Speaker of the House of Representatives when such officer makes a written request to the commissioner which specifies the name of the child for whom such access is sought and which describes such officer's need to have access to such records in order to determine whether the laws of this state are being complied with to protect children from child abuse and neglect and whether such laws need to be changed to enhance such protection, for which purposes the General Assembly finds such disclosure is permissible and encouraged under the 1992 amendments to Section 107(b)(4) of the Child Abuse Prevention and Treatment Act, 42 U.S.C. Section 5106(A)(b)(4); and(11) A court, by subpoena that is filed contemporaneously with a motion seeking records and requesting an in camera inspection of such records, may make such records available to a party seeking such records when:(A) Such motion is filed;(B) Such motion is served: (i) On all parties to the action;(ii) On the department or other entity that has possession of such records, as applicable; and(iii) In matters other than a dependency proceeding or a civil proceeding wherein there is no related pending criminal investigation or prosecution of criminal or unlawful activity, on the prosecuting attorney, as applicable; and(C) After an in camera inspection of such records, the court finds that access to such records appears reasonably calculated to lead to the discovery of admissible evidence.(b)(1) Notwithstanding Code Section 49-5-40, the juvenile court in the county in which are located any department or county board records concerning reports of child abuse, after application for inspection and a hearing on the issue, shall permit inspection of such records by or release of information from such records to individuals or entities who are engaged in legitimate research for educational, scientific, or public purposes and who comply with the provisions of this subsection. When those records are located in more than one county, the application may be made to the juvenile court of any one such county. A copy of any application authorized by this subsection shall be served on the nearest office of the department. In cases where the location of the records is unknown to the applicant, the application may be made to the Juvenile Court of Fulton County.(2) The juvenile court to which an application is made pursuant to paragraph (1) of this subsection shall not grant the application unless: (A) The application includes a description of the proposed research project, including a specific statement of the information required, the purpose for which the project requires that information, and a methodology to assure the information is not arbitrarily sought;(B) The applicant carries the burden of showing the legitimacy of the research project; and(C) Names and addresses of individuals, other than officials, employees, or agents of agencies receiving or investigating a report of abuse or treating a child or family which is the subject of a report, shall be deleted from any information released pursuant to this subsection unless the court determines that having the names and addresses open for review is essential to the research and the child, through his or her representative, gives permission to release the information.(c) The department or a county or other state or local agency may permit access to records concerning reports of child abuse and may release information from such records to the following persons or agencies when deemed appropriate by such department: (1) A physician who has before him or her a child whom he or she reasonably suspects may be abused;(2) A licensed child-placing agency, a licensed child-caring institution of this state which is assisting the department by locating or providing foster or adoptive homes for children in the custody of the department, a licensed adoption agency of this or any other state which is placing a child for adoption, or an investigator appointed by a court of competent jurisdiction of this state to investigate a pending petition for adoption;(3) A person legally authorized to place a child in protective custody when such person has before him or her a child he or she reasonably suspects may be abused and such person requires the information in the record or report in order to determine whether to place the child in protective custody;(4) An agency or person having the legal custody, responsibility, or authorization to care for, treat, or supervise the child who is the subject of a report or record;(5) An agency, facility, or person having responsibility or authorization to assist in making a judicial determination for the child who is the subject of the report or record of child abuse, including, but not limited to, members of officially recognized citizen review panels, court appointed guardians ad litem, certified court appointed special advocate (CASA) volunteers who are appointed by a judge of a juvenile court to act as advocates for the best interest of a child in a juvenile proceeding, and members of a protocol committee, as such term is defined in Code Section 19-15-1;(6) A legally mandated public child protective agency or law enforcement agency of another state bound by similar confidentiality provisions and requirements when, during or following the department's investigation of a report of child abuse, the alleged abuser has left this state;(7) A child welfare agency, as defined in Code Section 49-5-12, or a school where the department has investigated allegations of child abuse made against any employee of such agency or school and any child remains at risk from exposure to that employee, except that such access or release shall protect the identity of: (A) Any person reporting the child abuse; and(B) Any other person whose life or safety has been determined by the department or agency likely to be endangered if the identity were not so protected;(8) An employee of a school or employee of a child welfare agency, as defined in Code Section 49-5-12, against whom allegations of child abuse have been made, when the department has been unable to determine the extent of the employee's involvement in alleged child abuse against any child in the care of that school or agency. In those instances, upon receiving a request and signed release from the employee, the department may report its findings to the employer, except that such access or release shall protect the identity of: (A) Any person reporting the child abuse; and(B) Any other person whose life or safety has been determined by the department or agency likely to be endangered if the identity were not so protected;(9) Any person who has an ongoing relationship with the child named in the record or report of child abuse any part of which is to be disclosed to such person but only if that person is required to report suspected abuse of that child pursuant to subsection (b) of Code Section 19-7-5, as that subsection existed on January 1, 1990;(10) Any school principal or any school guidance counselor, school social worker, or school psychologist who is certified under Chapter 2 of Title 20 and who is counseling a student as a part of such counseling person's school employment duties, but those records shall remain confidential and information obtained therefrom by that counseling person may not be disclosed to any person, except that student, not authorized under this Code section to obtain those records, and such unauthorized disclosure shall be punishable as a misdemeanor;(10.1) Any school official of a school that a child who was the subject of a report of suspected child abuse made pursuant to Code Section 19-7-5 attends in which there is an ongoing investigation of the reported abuse. Any such ongoing investigation shall include contact with such school to obtain any relevant information from school personnel regarding the report of suspected child abuse;(11) The Department of Early Care and Learning or the Department of Education;(12) An individual, at the time such individual is leaving foster care by reason of having attained the age of majority, but such access shall be limited to providing such individual with a free copy of his or her health and education records, including the most recent information available; or(13) Local and state law enforcement agencies of this state, the Department of Community Supervision, probation officers serving pursuant to Article 6 of Chapter 8 of Title 42, the Department of Corrections, and the Department of Juvenile Justice when such entities, officers, or departments are providing supervision or services to individuals and families to whom the department is also providing services. Such access or release of records shall not be provided when prohibited by federal law or regulation. Access to such records may be provided electronically.(d) Notwithstanding any other provision of law, any child-caring agency, child-placing agency, or identified foster parent shall have reasonable access to nonidentifying information from the placement or child protective services record compiled by any state department or agency having custody of a child with respect to any child who has been placed in the care or custody of such agency or foster parent or for whom foster care is being sought, excluding all documents obtained from outside sources which cannot be redisclosed under state or federal law. A department or agency shall respond to a request for access to a child's record within 14 days of receipt of such written request. Any child-caring agency, child-placing agency, or identified foster parent who is granted access to a child's record shall be subject to the penalties imposed by Code Section 49-5-44 for unauthorized access to or use of such records. Such record shall include reports of abuse of such child and the social history of the child and the child's family, the medical history of such child, including psychological or psychiatric evaluations, or educational records as allowed by state or federal law and any plan of care or placement plan developed by the department, provided that no identifying information is disclosed regarding such child. Notwithstanding the provisions of this subsection, a foster parent, as an agent of the department, shall have access to a child's medical and educational records in the same manner and to the same extent as the department itself and to the fullest extent allowable by law to ensure the proper care and education of a child entrusted to the foster parent's care.(e) (1) Except as provided in paragraph (2) of this subsection and notwithstanding any other provisions of law, child abuse and dependency records shall not be confidential and shall be subject to Article 4 of Chapter 18 of Title 50 if the records are applicable to a child who at the time of his or her fatality or near fatality was:(A) In the custody of a state department or agency or in the care of a foster parent;(B) A child as defined in paragraph (3) of Code Section 15-11-741; or(C) The subject of an investigation, report, referral, or complaint under Code Section 15-11-743. (2) The following may be redacted from such records: (A) Medical and mental health records made confidential by other provisions of law;(B) Privileged communications of an attorney;(C) The identifying information of a person who reported suspected child abuse;(D) The name of a child who suffered a near fatality;(E) The name of any sibling of the child who suffered the fatality or near fatality;(F) Any record of law enforcement or prosecution agencies in any pending investigation or prosecution of criminal activity contained within the child abuse, neglect, or dependency records; or(G) Any part of a record of the department or a governmental child protective agency that includes information provided by law enforcement or prosecution agencies in any pending investigation or prosecution of criminal activity contained within the child abuse, neglect, or dependency records.(3) Upon the release of documents pursuant to this subsection, the department may comment publicly on the case.(f) Notwithstanding Code Section 49-5-40, a child who alleges that he or she was abused shall be permitted access to records concerning a report of child abuse allegedly committed against him or her which are in the custody of a child advocacy center, the department, or other state or local agency when he or she reaches 18 years of age; provided, however, that prior to such child reaching 18 years of age, if the requestor is not the subject of such records, such records shall be made available to such child's parent or legal guardian or a deceased child's duly appointed representative when the requestor or his or her attorney submits a sworn affidavit to the applicable child advocacy center, the department, or other state or local agency that attests that such information is relevant to a pending or proposed civil action relating to damages sustained by such child; and provided, further, that such records concerning a report of child abuse shall still be subject to confidentiality pursuant to paragraph (4) of subsection (a) of Code Section 50-18-72. Such records concerning a report of child abuse shall not be subject to release under paragraph (11) of subsection (a) of this Code section or subsection (g) of this Code section.(g)(1) A subpoena authorized under paragraph (11) of subsection (a) of this Code section shall be served on the prosecuting attorney who has jurisdiction over a pending investigation or prosecution of criminal or unlawful activity, if such information is known to the individual seeking such access or disclosure.(2) A prosecuting attorney may intervene in an action involving a motion filed under paragraph (11) of subsection (a) of this Code section.(3) (A) When a court issues an order pursuant to paragraph (11) of subsection (a) of this Code section, the court shall issue a protective order to ensure the confidentiality of such records. Such protective order may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense and may include one or more of the following:(i) That the records not be reproduced except as authorized by court order;(ii) That the records be viewed or disclosed only on specified terms and conditions;(iii) That the records be sealed and only opened by court order;(iv) That the order be applicable to all parties, their counsel, and any agent or representative of a party; or(v) That records released pursuant to such order be returned to the court upon completion of the matter that caused the production of such records. (B) Any person who fails to obey a protective order issued under this subsection shall be punished as contempt by the court.Amended by 2020 Ga. Laws 410,§ 6, eff. 7/1/2020.Amended by 2018 Ga. Laws 562,§ 49, eff. 5/8/2018.Amended by 2017 Ga. Laws 275,§ 49, eff. 5/9/2017.Amended by 2017 Ga. Laws 170,§ 1, eff. 7/1/2017.Amended by 2017 Ga. Laws 169,§ 1 and § 2, eff. 7/1/2017.Amended by 2016 Ga. Laws 625,§ 49, eff. 5/3/2016.Amended by 2016 Ga. Laws 344,§ 3, eff. 7/1/2016.Amended by 2015 Ga. Laws 119,§ 1, eff. 7/1/2015.Amended by 2015 Ga. Laws 97,§ 5, eff. 7/1/2015.Amended by 2015 Ga. Laws 77,§ 10, eff. 7/1/2015.Amended by 2014 Ga. Laws 476,§ 2-10, eff. 7/1/2014.Amended by 2013 Ga. Laws 127,§ 4-56, eff. 1/1/2014.Amended by 2010 Ga. Laws 424,§ 1, eff. 5/20/2010.Amended by 2009 Ga. Laws 102,§ 2-2, eff. 7/1/2009.Amended by 2009 Ga. Laws 16,§ 3, eff. 7/1/2009.Amended by 2009 Ga. Laws 16,§ 2, eff. 7/1/2009.Amended by 2007 Ga. Laws 248,§ 8, eff. 5/24/2007.Amended by 2006 Ga. Laws 453,§ 49, eff. 4/14/2006.Amended by 2004 Ga. Laws 565, § 16, eff. 10/1/2004.Amended by 2003 Ga. Laws 202, eff. 7/1/2003.Amended by 2002 Ga. Laws 849, eff. 5/13/2002.Amended by 2001 Ga. Laws 2.