Tenn. court to review child death records withheld from public

Lilly Chapa | Freedom of Information | News | January 8, 2013

A Tennessee judge in the Davidson County Chancery Court heard arguments Tuesday over whether she should make public controversial child fatality records held by the state's Department of Children's Services.

A coalition of a dozen media organizations filed a lawsuit in December against the department after it denied the media organizations' public records requests for details about more than 200 children under the department's watch. The coalition began after The Tennessean filed a request for the records and department officials failed to respond, prompting other media organizations to file the same request. The media organizations then joined together in filing the suit.

According to the lawsuit, the department has not cited any provision of the Tennessee Public Records Act that would permit them to withhold the records, arguing only that the sensitive records regarding child fatalities require careful balancing between the privacy rights of children and families and the public's right to know.

"When it's not clear why a government agency is withholding information, in this case dealing with the deaths of several children that were in DCS custody, I think at some point it becomes necessary for the public to demand that information," said Greg Sherrill, executive director of the Tennessee Press Association.

In the lawsuit, the news organizations demanded that the DCS turn over the requested records to the court so that the judge could redact any confidential information and release the records to the public. The department today brought reports on four deceased children for the judge to look through, said Robb Harvey, who represented The Tennessean in the hearing today.

"The judge has the opportunity and obligation to review those records, decide what, if anything, is confidential or not and issue a ruling letting us know what, if anything, we can look at," Harvey said.

Once the ruling is issued, newspapers will have a better idea of which records they need access to.

"We want to see all the records on those four children because we don't know whether they're representative of the whole," Harvey said. "Our reporters will make a decision if we need every deceased kid's file, the entire file, or if there's a particular report in the file that would accelerate the process."

The Tennessean requested records relating to the fatalities and near fatalities of children who were in the custody of the DCS or about whom there has been a DCS file, Harvey said. Over 200 cases fall into that category since 2009, including the deaths of 31 children in the first six months of 2012.

The department has provided some “inadequate” summary information on the incidents, but no records, said Jack McElroy, editor of The Knoxville News-Sentinel. The information provided did not give any level of detail that allowed any kind of evaluation of what went wrong, he said.

Many states have amended their public records laws to comply with a federal act addressing child abuse, Harvey said, but how the states' statutes should be interpreted is unclear. A recent decision in Kentucky allowed newspapers access to records regarding a juvenile sexual assault case under the Kentucky statute, but the DCS insists it does not have to release records due to the similar Tennessee statute.

"Tennessee has one of the broadest (open records) statutes in the country but the state refuses to provide any public records, instead just providing information they believe falls under the state statute," Harvey said.

“I don’t know that there’s any responsibility that is more important than protecting children when the state takes responsibility or is called upon to act in defense of them,” McElroy said. “And they end up dead. I think that’s a real failure by our communities and our society, and examining how that has happened is the best way to prevent it from happening in the future.”

Related Reporters Committee resources:

· Secret Justice: Access to Juvenile Justice: Juvenile access chart