Attorney General of Florida — Opinion
July 23, 2001
RE: CHILD ABUSE — CHILDREN AND FAMILIES, DEPARTMENT OF — PUBLIC RECORDS — records resulting from report of child abuse are confidential. s. 39.202, Fla. Stat.
Records — incident reports, child abuse
Robert A. Butterworth Attorney General
Ms. Josefina M. Tamayo General Counsel Department of Children and Families 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Dear Ms. Tamayo:
On behalf of the Department of Children and Families (department), you ask substantially the following question:
What portion of the department’s incident reports which contain information regarding child abuse, abandonment, or neglect are confidential under section 39.202(1), Florida Statutes?
Records relating to the licensure of foster homes, or assessing how the department is carrying out its duties, including references to incidents of abuse, abandonment, or neglect, contained in such records, do not fall within the parameters of section 39.202, Florida Statutes. An examination of the operating procedures relating to incident reports indicates such incident reports are in the nature of quality assurance reports that do not substitute for the reporting and protective investigation of child abuse, abandonment, or neglect. Therefore, such incident reports would not be confidential under section 39.202(1), Florida Statutes. To the extent that such incident reports reference an occurrence of abuse, abandonment, or neglect, identifying information that reveals the identity of the victim contained in the reference should be redacted.
In considering any issue of access to government records, it must be recognized that in Florida reports generated by a public agency are public records subject to disclosure, unless specifically made confidential or exempt by the Legislature. Any exemptions to the Florida Public Records Law are to be narrowly construed.
Where a public record contains information that is exempt or confidential, that portion of the record which falls within the exemption may be redacted, while the remainder of the record must be produced for examination.
Part II of Chapter 39, Florida Statutes, relates to the reporting of child abuse. When the department receives a report of child abuse, abandonment, or neglect, it is responsible for initiating a protective investigation. Under such circumstances, section 39.202(1), Florida Statutes, provides for the confidentiality of abuse, abandonment, or neglect records by stating:
“In order to protect the rights of the child and the child’s parents or other persons responsible for the child’s welfare, all records held by the department concerning reports of child abandonment, abuse, or neglect, including reports made to the central abuse hotline and all records generated as a result of such reports, shall be confidential and exempt from the provisions of s. 119.07(1) and shall not be disclosed except as specifically authorized by this chapter.”
In considering similar exemptions, this office has considered the purpose for which a record was created in light of the various functions performed by the department. For example, in an informal opinion to the former Department of Health and Rehabilitative Services, this office considered whether the exemption afforded for all records concerning reports of abuse, neglect, or exploitation of an aged person or disabled adult applied to an inspector general’s investigative report to determine program compliance. A complaint had been received involving the death of three elderly persons in which abuse was suspected. The department conducted a protective services investigation; in addition, a separate investigation was instituted by the department inspector general which resulted in the report in question.
The purpose of the investigation and resulting report by the inspector general was to determine whether procedures had been properly followed by department personnel and the effectiveness of such procedures. In contrast, however, the purpose of the exemption afforded for abuse, neglect, or exploitation records was to protect the aged person or disabled adult. Thus, this office concluded that the exemption was not applicable.
Similarly, in Bolyes v. Mid-Florida Television Corporation, the court considered the applicability of the confidentiality provisions afforded child abuse investigations to a summary report created by the Department of Health and Rehabilitative Services. The court held that the summary report investigating the actions of the department was not an investigation into a child’s death or to secure other children’s safety, but was a licensing investigation. Thus, the confidentiality provisions afforded by statute for records resulting from child abuse investigations did not apply.
You state that incident reports are frequently used by the department to report and compile information about a variety of incidents including client death, physical abuse, neglect or exploitation, suicide attempts, thefts, and vandalism. Some reports may include information regarding child abuse, abandonment, or neglect, and may also contain information about the identity of the child victim and foster parents as well as the incident itself. There is no definition of the term “incident report” in the statutes or rules of the Department of Children and Families.
This office, however, has reviewed a copy of the department’s District 10 operating procedure relating to incident reports.
The review indicates that incident reports are in the nature of a quality assurance report. The title to the operating procedure refers to utilization of the incident reporting unit and quality improvement critical review incident team. The procedure specifically states that incident reports “do not replace the abuse, neglect, and exploitation reporting requirements system set forth in Florida Statutes.” Rather, incident records are separate and, as provided in the operating procedure, do not relieve the department’s counselor or contractual service provider from maintaining a full and complete record of incidents in the client case file and in the client resources record.
If during the course of performing its quality assurance or licensure functions the department becomes aware of allegations of abuse, abandonment, or neglect, a separate and distinct report regarding such allegations should be developed in accordance with sections 39.201 and 39.301, Florida Statutes. While licensure or quality assurance reports may refer to an incident of abuse, abandonment, or neglect, such reference does not make the record, or the reference, protected information pursuant to section 39.202, Florida Statutes, although identifying information that reveals the identity of the victim should be redacted.
Accordingly, I am of the opinion that records relating to the licensure of foster homes, or assessing how the department is carrying out its duties, including references to incidents of abuse, abandonment, or neglect contained in such records, do not fall within the parameters of section 39.202, Florida Statutes. An examination of the operating procedures relating to incident reports indicates such incident reports are in the nature of quality assurance reports that do not substitute for the reporting and protective investigation of child abuse, abandonment, or neglect. Therefore, such reports would not be confidential under section 39.202(1), Florida Statutes. To the extent that such reports reference an occurrence of abuse, abandonment, or neglect, identifying information that reveals the identity of the victim contained in the reference should be redacted.
Robert. A. Butterworth Attorney General
This office would suggest that if, for example, a department employee while conducting an inspection of a foster home for licensure purposes becomes aware of circumstances indicating that abuse, abandonment, or neglect of a child has occurred or is occurring, the employee should immediately contact the abuse hotline to initiate a protective investigation. In preparing the report of the employee’s inspection, the licensure or incident report may reference that a report has been made to the hotline and indicate the number or other identifying characteristic assigned to the protective investigation.