Danny DeVito’s slimy Sid Hudgens in L.A. Confidential worked for a tabloid and gleefully reminded people that gossip from his paper was always, “Off the record, on the QT, and very hush-hush.” Of course, this was nonsense. He worked for a newspaper. But revealing information a reader perceives as secretive or confidential can inject it with a sense of authenticity, and of course, sensationalism. Legions of click-bait internet ads contain phrases like “secrets to . . .” and “what so-and-so doesn’t want you to know” because it appeals to our desire to have inside information.
Still, some confidences are designed to stay confidential, and when they don’t, the consequences can be disastrous. Consider Indiana’s toll-free hotline to report suspected abuse or neglect of children, which received 202,493 calls in 2015. The identity of someone who reports abuse or neglect using this system is supposed to remain confidential. But what if that information is not held in confidence? What happens when the identity of a CPS caller is discovered, in spite of state law and DCS regulations?
First, remember that confidential does not mean anonymous. Although a report can be made anonymously, DCS Investigators must speak with the caller in detail to advance an investigation and the identity can be useful. The law requires that the name of the person who alerts CPS, (the “reporter”), if known, be redacted from documents shared with others, like the parents that are the subject of the investigation. The DCS website contains the following information:
As you might imagine, if DCS is processing a few hundred thousand reports annually, it’s not unthinkable that one might slip through the cracks, resulting in the name of a reporter being unintentionally disclosed.
In John Doe v. Indiana Department of Child Services, Doe (whose real name was withheld in the lawsuit for obvious reasons) reported suspected abuse or neglect to the DCS. During his phone call, he expressed reluctance at sharing his identity, but was assured by a DCS representative that it would be kept confidential and that no one would know that he had made the report. Sadly, it didn’t stay confidential. The Court of Appeals described the consequences:
About a week [after Doe’s report], on July 3, 2013, Doe was confronted in his front yard by Heather Ditton, who lived across the street and was one of the neighbors Doe reported. While screaming and yelling obscenities, Ditton angrily accused Doe of calling DCS. Ditton had in her possession an unredacted copy of the DCS report, which identified Doe as the reporting source. Other neighbors quickly became aware of the report Doe made. Upon realizing the report was not kept confidential, Doe felt like “somebody ripped [his] heart out.” * * * From that point on, the Doe family no longer felt comfortable outside their house. They wanted to relocate but could not afford to move. Doe indicated that he was “stared at, glared at, mooned, flipped off, yelled at, you know, every day, forever.” His daughter, Jane Doe #2, was bullied by other children. Both Doe and his wife missed work due to stress and lack of sleep.
Doe v. Indiana Dep’t of Child Servs., No. 49A02-1506-CT-682, 2016 WL 3013989 (Ind. Ct. App. May 26, 2016), p. 3 (Internal citations omitted). In what the Court called an “issue of first impression,” meaning it had not yet been addressed before an Indiana appellate court, the Court examined whether a person who calls to report abuse or neglect has a right to sue DCS for revealing of his/her identity. DCS did not dispute that it violated the statute by disclosing Doe’s identity. However, in examining Indiana Code § 31-33-18-2, the Court stated that “[n]ot every breach of a statutory duty provides plaintiffs with a right of action.” Since the law here does not make a private right of action explicit, the Court examined whether the legislature intended to make it implicit.
Naturally Doe and DCS did not agree on what the legislature really intended. But rather than answer this question directly, the Court decided to “leave that issue for another day” relying instead on the special duty that occurred when Doe spoke with the DCS representative and specifically voiced concern over confidentiality, and was assured that DCS would protect his identity. The Court of Appeals concluded:
Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise.
(p. 10). Although the litigation has yet to end, the Court allowed the lawsuit to continue. However, the decision of the 3-judge panel was not unanimous. Chief Judge Vaidik disagreed with the majority’s decision to side-step the issue of legislative intent, preferring instead that the Court address it, and arguing that the legislature did not intend to allow for a private right to sue DCS for disclosure. The dissent reasoned that: (1) the purpose of the statute is to encourage reporting of suspected abuse or neglect of children, not to protect reporters; (2) there is already a statutory consequence to wrongfully revealing a reporter’s identity (the public employee can be charged with a Class A infraction); and (3) courts have already held that victims of abuse or neglect cannot sue those who failed to report the abuse, and it’s logical to conclude that if abuse victims don’t have a private right to sue, then reporters don’t either.
Given the division of the Court and the importance of the issue, I think it’s very likely the Indiana Supreme Court will grant a request from the DCS to take up the issue later this year.