October 2, 2017

No Liability For Disclosing Identity of Child-Abuse Reporter; John Doe #1 v. Indiana Dept. of Child Servs.

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Indiana law requires that the identities of people who report child abuse be kept confidential. But sometimes mistakes are made. The question this case poses is whether a child-abuse reporter whose identity is exposed may recover for any damages caused by that exposure. In a split decision, the Court held that there is no such recovery.

Doe lives with his family in a small Indiana town “where everybody knows everybody” and where he drives neighborhood children to church every Wednesday. Over time, he began to suspect that some of the children were victims of abuse and neglect. After talking it over with his wife, Doe called the DCS abuse and neglect hotline to report his suspicions. Doe hesitated to give his contact information on that call when asked, but the operator explained that “it’s confidential. Nobody will find out.” In response, Doe gave his first name and phone number.

A few days later, an irate neighbor began screaming at Doe while waiving an unredacted copy of the DCS report. Word spread around town, and the Does were labeled as “snitches,” leading to bullying, threats, and other forms of harassment.

The Does sued DCS for negligently disclosing Doe’s identity. DCS moved for summary judgment, arguing that there was no duty. The trial court granted that motion and the Does appealed. In a split decision, the Court of Appeals found that DCS owed a duty to the Does based on the hotline worker’s “promise” of confidentiality. Chief Judge Vaidik dissented, finding both that there was no duty and no private right of action for a statutory violation. The Indiana Supreme Court then granted transfer.

The Court first addressed whether the statutes which protect the confidentiality of child-abuse reports implicitly create a private right of action when a disclosure occurs. The Court used a two-part test to answer this question: a private right of action is not inferred if the statute (1) primarily protects the public at large and (2) contains an independent enforcement mechanism. The Court applied these tests broadly, and found that the statute here did both.

First, the Court described the statute’s “mission” as protecting children, not childabuse reporters.

This child-centered framework does not just encourage reporting; it consciously “err[s] on the side of over reporting.” It does so using two main tools. First, it imposes criminal liability—a Class B misdemeanor—for anyone who has reason to believe that a child may be a victim of abuse or neglect but fails to immediately report it to DCS or to police. Second, it immunizes good-faith reporters from any civil or criminal liability that may arise from their reports.

When looking at the entire statutory scheme, the Court found that was designed to “help[] and protect[] Hoosier youth. … That one of the scheme’s provisions incidentally benefits reporters by requiring confidentiality does not change this goal—especially given the alternative confidentiality-enforcement mechanisms we now address.”

The statutes have two different confidentiality enforcement mechanisms, and neither were to be used by the child-abuse reporter. First, a DCS employee who “knowingly or intentionally” discloses confidential information commits a criminal offense. Second, that employee can be disciplined by DCS for disclosing confidential information.

We do not, of course, condone DCS’s thoughtless fumbling of sensitive information. Quite the opposite. Child-abuse reporters are DCS’s eyes and ears on the front lines of the fight to protect children—and without their trust and cooperation, DCS faces a nearly impossible uphill battle. Knowing this, our General Assembly might choose to impose a right of action, just as it has for Hoosiers falsely accused of child abuse. But separation of powers requires us to leave that decision to the legislature, rather than make it ourselves under the guise of statutory interpretation.

After making this conclusion, the Court next turned to whether DCS had a common law duty to protect the Does’ confidentiality. The Does argued that the hotline worker’s explanation that Doe’s information was confidential created such a duty. The Court was not convinced after analyzing three theories: the private duty doctrine, the assumed-duty doctrine, and the three-part Webb test.

First, the Court found that DCS’s statement did not create a “private duty” (a duty arising from a promise to assist) to Doe because it did not provide him with any emergency services. Second, DCS did not assume a duty, because the hotline worker merely paraphrased a statute, which does not cross the “high bar” for assuming a duty. And third, Doe does not pass the Webb test because “simply communicating a preexisting rule” does not create the “special relationship” required under that test.

Regrettably, this result does not undo the wreckage. By relaying the statutory requirement of confidentiality and then violating it, DCS exposed an innocent family to harassment and threats. Our question on transfer, though, is narrow: should we expand our common law to impose a duty for summarizing a statute? On this record, we decline—seeing no reason why the common law should engulf an essentially statutory protection.

Justice David dissented. While he agreed that there was no private right of action, he would have held that the hotline worker’s statement created a common-law duty.

I believe public policy strongly supports keeping John’s information confidential, to protect both the public and, incidentally, the reporting source. If the identity of the reporting source is not protected, this may chill reporters from coming forward at all. … Thus, there is strong public policy supporting maintaining confidentiality for the reporting source because the goal is to encourage reporting and thereby, protect children.

He would have found a special relationship from the “explicit assurance that DCS would act on John’s behalf,” and that this was “more than just recit[ing] the statute.” And he (and the majority) agreed that the harm to the Does was foreseeable.

Justice David’s dissent ended by arguing that the Does may have a constitutional right to bring their action.

Finally, allowing John’s common-law claim to proceed is consistent with Article 1, Section 12 of our Constitution and our summary judgment standard. Article 1, Section 12 provides in relevant part: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.” And in Hughley v. State, this Court acknowledged that: “Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” 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. I think this is particularly important in a case like this where John relied upon a promise made by a government actor in response to his reluctance to provide information to the State, fearing consequences for himself and his family. 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 promisee.

Lessons:

  1. The statutes which protect the confidentiality of child-abuse reporters offer no private right of action when that confidentiality is breached.
  2. A government employees’ paraphrase of a statutory requirement does not create a common-law duty.
  3. At least one member of the Court may be open to constitutional arguments in favor of expanding rights of action for clear injuries.