Gen. 31] 31

CHILD AB USE AND NEGL ECT

P UBLI C I NFORMATION A CT

– R ESTRI CTIONS ON C ONTENT AND D ISSEMI

NATIONO F R E PORTS OF I NDEPENDENT J UVENILE J USTICE M ONITOR

February 17, 2004

The Honorable M. Teresa Garland Special Secretary Governor’s Off

ice f or Childre n, Youth, and Famili es
You have asked for our opinion about

the extent

to which the Office of the Inde pendent Juveni le Justice Monitor (“Indepen de nt Monitor”) must keep confi dentia l infor mation t hat it rece ives i n carrying out it s stat

utory responsibili ties to eval uate and r eport on invest igati ons of all eged chil d abuse or negl ect at faciliti es of the Departmentof J uve nile S erv ices (“D JS” ). You s pecifi call y as k us to reconci le the Independent Monitor’s s tatutoryobligations to provide repo rts to o ther S tate officials a nd to respo nd to requ ests under the Maryl and Public I nformati on Act (“ PIA”) with the conf identia li tyrequir ements that pert ain to c hild abuse investigati on s under An notate d C ode o f M aryla nd, Ar t i cl e 8 8A , §6 ( b)

. We summarize your questions as follows:

1. To wha t extent

does Arti cle 88A, §6(b) , limit the informat ion regardi ng incide nts andinvest igati ons of poss ible ch ild abuse and negl ectthat t he Independent

Monitor may include i n the reports that

it is required to provide to vari ous State officials?

2. To what extent

does Arti cle 8 8A, §6(b), or other law further limi t the informat ion in a repor t of the Independent

Monitor th at may be di sc lo se d i n r es pon se to a r eq ue st und er th e PI A?

3. Do the res tri ctions imposed by Article 88A, §6(b), on the informat ion in a repor t depend on which agenc y pr ovided the informa tion to the Indep enden t Mo nitor?32 [89 O p. Att’y
For th e reaso ns ex plaine d in this opin ion, w e con clude :
1. A report

by t he Independe nt Monitor may, and should, include findings and r ecom mendations r egarding publ ic agency performance in resp onse to alleg ations o f child abuse and neglect at DJS facilities. H ow ever, to com ply with Arti cle 88A, §6(b) , the report should not

identi fy, or disc lose i nformati on that inva de s the priv acy o f, a child, the ch ild’s fam ily, the individ ual w ho alle gedly committed

the abus e , or the indivi dual who reported suspected abuse to State or localauthoriti es.
2. Assuming that a re port is p repare d in co mp li an ce wi th Article 88A, §6(b), that s tatut e would not furt her restrict the pub lic inspection of the re port pur suant t o a P IA re ques t. Of c ourse , in respondi ng t o a PIA request, the Independent M onitor must also consider other applic able exceptions t o the gener al rul e of disclosure under the PIA. I n par ticular, the Inde pend ent M onitor s hou ld
cons ult with agenci es that provi ded inves tigative r epor ts to determi ne whether publi c discl osure of t he content s of

those r ecords
wo uld comprom ise a current investi gation or otherwise be con trary to the publi c inte rest . To the ext ent possible, the Indepe nden t Monitorshould identify the parts of a report subject to that exemption at the time the report i s provided to State official s.
3. The re st

ri ct io ns impos edby

Artic le 88A , §6(b ), apply to informat ion that t

he Independent

Monitor obt a ins fr om DJS, local depar tmen ts of socialservi ces, l aw enforcement agenci es, or other agencies, as well as to res ults of any investi gation by the Independent

Monitor it self.

I
The Independent Mon itor

A. Duties of t

he Independent Monitor

The Independ ent Mo nitor, establ ishe d in the Governor ’s Office for Children, Youth, and Fam ilies (“OCYF”), is re sponsibl e for determi ning “whether the needs of chi ldren under the jurisdi ctionofGen. 31] 33

1 The Indep endent Mon itor was originally created in 2000 under a Memorandum

of Agreement

of the Subcabinet for

Children, Youth, and Families , an entity comprised o f th e heads of various human services agenc ies. SeeAnnotated

Code of Maryland, A

rticle 49D, §4.1. Two ye ars later, the General Assembly codified the Independe nt Monitor and expanded its responsibilities. Chapter 255, Laws of Mary land 2002.

2 Under Sta

te law, r eportsof child abuse or neglect are referred to a local department

of social services or an ap pr op ri at e l aw en fo rc em en t a ge nc y. SeeAnnotate d Code of M ary land, Fa mily Law Arti cle ( “FL”), §§5-704, 5-705. Local departments of socia l services are charged with in vestigating thosereports and pursuing various remedies, and pr oviding tre atment

. See, e.g. , FL §§5-706 (inve st igations), §5-709 (removal of child from home), §5-7 10 (pro vision of s ervice s to child) ; see alsoCOMAR 07.02.07.01A. the Department [of Juvenile Services ] are being met in compli ance with St at e l aw, that t

he ir rights are being up held, and tha t they are not being abused. ” An not at edCod e o f Mar y land, Artic le 49D , §40(f). 1 The Independent Monitormust evaluate faci lities owned or operate d by DJS, including phy sicalconditi ons, st affing, grievanc e and monitoring processe s, and t he treatmentand servi ces provi ded to resid ents . Ar ticle 4 9D , §43 (1). It is to review DJS’s i nternal monitoring and inci dent report ing act ivities, as well as the repor ts of findings of the l ocal depar tmen t s of soci al ser

vices 2 concerni ng incide nts at the facility . Arti cle 49D, §43(2) , (5) , (6) . The Independent

M onitor is to mak e una nno unce d site visits to facili ties, inte rview s taff, you th, and others , and p articipate in mu ltidisciplin ary team s organi zed as part of an investigati on of an alle gationo f ab us e o r n eg le ct at a DJ S fa ci li ty . A rt ic le 49D , §§4 3(4 ), 44 (2), (4 ).

B. Reporting Obli

gations of

the Independent

Monitor

The Independent

Monitor law directs the Indepe ndent Monitor to report detai led fi ndings and r ecommendations t o the legis lative leade rship and v arious other S tate offici als. Articl e 49D, §45. The statute requir es the I ndependent Monitor to is sue two basi c ty

pes of reports: (1) special report s keyed to parti cular problems or findings, and (2) per iodic r eports summarizi ng the act ivities of t he Ind epe nde nt M oni tor.34 [89 O p. Att’y

3 The rep orts are to be sub mitted to the legis lative le adershi p in accordancewith Annot

ated Code of Mary land, Stat e Government

Article (“SG”), §2-1246. Under that provision, five copies are delive redto the Department

of Legislative

Services. SG §2-1246(b)(1). Copies are to be pro vide d to other members of the Leg islature upon request or upon direction of the leadership. SG §2-1246(b)(2). First, the Indepe ndent Monitor must pr ov id e o ng oi ng “ti m ely” report s concerni ng:

(1) Any problem regarding t he care, supervi sion, and tre atme nt of c hildren in DJS facilities; (2) Findings and r ecom men dation s related to its investigati ons of disciplinary actions, grievances, incident reports , and cases of alle ged chil d abuse and negl ect; and (3) Other findings and acti ons undertake n by the Indepe ndent M onitor.

Article 49D, §45(a). These report s are t o be made to the Subcabi net for Ch ild ren, You th, and Famili es, t o the Speci al Secre tary for OCYF, an d also to the Speaker of the House of Delegates and the Preside nt of the Senate. 3 Id.

Second , the I nde pen den t M oni tor m ust p rep are, o n a quarterl y and an annual bas is, report s that describe “allacti viti es of the Office” and any a ctions taken by DJS as a resul t of f

indings and recommendations of the In de pe nde ntMoni to r. Artic le 49D , §45(b)- (c). Th e qua rterly

report s are al so to summari ze anyviolations of DJS standards o r regulations that rem ained un abated fo r more than 30 da ys during the quarter . Arti cle 49D, §45(b) (3)(i ii) . Thes e repo rts are to be provided t o the Speci al Secre tary , the Secretaryof DJS, and the Ge ner al A ssem bly. A rticle 49D , §45 (b)-( c). Copies of the quarterly

report s must al so be sentto the State A dvisory Board for Juvenil e Service s , w hile c opies of t he annual r eports are to beGen. 31] 35

4 See, e.g., Independent Juvenile Justice Monitor Special Rep ort o n Conditions/

Inciden ts: Physical Abuse/Neglect Incidents, Thomas J.S. Waxter Chil dren’s Center (Ju

ne 30, 2003) (findings and recommendations concerning

excessive us e of for

ce incid ents and other chi ld abuse allegations at the Waxter Center during 2003); C h arles Hickey School (May 29, 2003) (findings and recommendations regarding DJS reporting of an d re sponse to 20 cases of suspected child abuse or neglect during 2003 at the Charles H ickey School); Overcrowding/Inadequate Staffing and Supervision/Sexual Behavior between Youth/Decreased Incident Reporting /Threats to Life, Health and Safety, Cheltenham Youth Facility (Nove mb er-December

2003) (findings and recommendations regarding health and safety

risks to youth as a result of seve r e unders taffing and failure to report violent incidents to DJS and other authorities). sentto the Governor

and to speci al advi sory boards re late d to spe cific juv enile fac ilities. Id.

C. Requests for

Reports of t

he Independent Monitor

Since it s inception, t

he Independent

Monitor has reviewed a number of inst ances of al leged chi ld abuse and neglec t in DJS facil iti es and has produced r eports that i dent if y pr acti ces that

may impa ir the State’s abil ity to prevent abuse and neglect or to r espond effe ctively when it occurs. 4 The Independent Monit or has reli ed on informat ion from numerous sources, including DJS incident reports, records and report s of localdepartment s of soci al ser vices and l aw enforcementagen cies, inter view s with facilit y s taff and residents, person al observat ions by the Indepe ndent Monitor’ s staf f, and parti cipat ion inmu lt i-di scipl inary teams inve sti gating parti cular incid ents

. The Independent

Monitor’s r eports have included detai led findings concerni ng alle ged abuse inc idents and the re sponses o f DJS, local d epartm ents of s ocial servi ces, and l aw enforcement perso nnel. The rep orts also mak e recom mend ations for c o rrective acti on to impr o ve public agencies ’ respons e to chi ld abuse and neglect allega tio ns an d in cident s. I t is our underst anding that the Independent

M onitor h as attem pted to exclud e from its repo rts identi fyi ng informat ion concer ning y ouths who may be the su bjects of abuse or negl ec t , repor ters of suspect ed abuse, and alle ged abusers.36 [89 O p. Att’y
The Independent

Monitor’s r eports have bee n dissemi nated to various State of

fici als i n accor dance with the I ndependent Monitorlaw. Like other agencies, the Indepe ndent Monitor recei ves requ ests for co pies o f its repo rts pursuantto the M aryland P ublic Inf ormation Act (“PIA”), Annotated Code of Maryl and, Stat e Government Article (“SG ”), 10-611 et seq. Befo re releasing a rep ort in response to such a r equest, the Indepe ndent Monitor must r edact informat ion if disclosure of that informat ion is prohibi tedby the PIA
or o ther law s, su ch a s A rticle 88A , §6( b).

II

Confide nti ali ty Requir ements o f Arti cle 8 8A, §6( b)

Much of the i nformati on and many of the re ports r eviewed by the Independent

Monitor deri ve from investigati on s by l aw enfo rc eme nt agencies and localdepartment s of soci al ser vices of
s uspect ed child a buse and n eglec t. Article 8 8A , §6(b ) gen erally provides that “ all r ecords and r eports concerni ng child a bu se and neglect are confi dentia l.” The stat ute and arelat ed regulation of t he Departmentof Human Resources (“DHR”) set out l imit ed circumst ances und er

whi ch di sc lo su re is pe rmitt ed . A rt ic le 88A , §6(b)(1)-(2); CO M AR 0 7.02.07.19. Unauthorized disclosure i s a crim inal m isde me ano r. A rticle 88A , §6( e).

The excepti ons to the broad prohibi tionagainst disclosure are limi tedto specifically described situations and class es of persons who inves tigate the child a buse allega tions, ca re direc tlyfor a child,
or admini ster or oversee s ocial welfare programs. Discl osure may be mad e pur suan t to a cou rt orde r or, in more limited circumstances,
an order of an admi nistrat ive law judge. A rticle 88A, §6 (b)(1). Disclosur es are a lso p erm itted , f or specifi ed purposes, to vari ous other State a nd lo cal officials w ho in vestig ate allega tions o f child abuse or ne glect, to entiti es suc h as th e State Co uncil o n C hild Abuse and Negl ect, the Stat e Citi zens Review Board for Chil dren, and child fatality review team s, and to officials resp onsib le for child protective servi ces orchild c are, foster care, and adopti on lice nsing. Article 88A , §6(b)(2)(i), (ii), (i ii). Disclosure may also be m ade to lice nsed pract iti oner s or off ic ia ls pr ovi di ng s ervi ces to th e vi ct imsGen. 31] 37
of abu se o r ne glec t. Article 88A , §6(b )(2)(i), (v). O ther pe rmissib le recipie nts of this informat ion include a person ac cu sed of ch ild abuse or neglec t, t

he parent

or cust odian of a c hild , and a school superi ntendent

or dir ector of

a chil d care faci lit

y r esponsibl e for taking administ

rati ve or pers onnel action against an alleged a buser. Ar ticle 8 8A , §6( b)(2 )(iv) , (vi), ( vii), (v iii).

One of these excepti ons speci fical ly allows for

disclos ures to the Indepen dent M onitor. Article 88A , §6(b)(2)(ix). Ho wev er, the statute is si lent on whether this excepti on encompasses redis closur es in the I nde pen den t M oni tor’s rep orts. The DH R reg ulation attem pts to ensure t

hat redi sclosur e of such infor mation i s governed by

the same standards as the origi nal disclsoure. It provides th at a record
or repo rt “may onl y be di sclose d to indi viduals who, by l aw or writt en agreement, are subject to th e r eq ui re men ts of

Artic le 88A , §6( b)....” CO M AR 07.0 2.07 .19F

.
Bo th the st atute and the re gulati on emphasize t hat the identity of the indivi dual who report s all eged abuse or ne glect is t o r emai n confidentia l. See , e.g., Article 88A, §6(b)(iv) (disc losure permitt ed to allege d abu ser if ide ntity of rep orter is protec ted), (vi) (disclosure to parent or

custodi an permittedif

reporter’s identity is protected); CO MA R 07 .02.07.19E , I.

Fi na lly, the st atute contai ns a provi so tha t it should not be constr ued to pr ohi bit “... t he p ubl icatio n, fo r ad min istrati ve ... purposes, of statist ics or other data so class ifie d as to pr event the identi ficat ion of parti cular pe rsons or cases. ” Article 88A , §6(c)(1).

The confiden tiality

requireme nts of A rticle 88A, §6 (b), are designedto ens ure th at the State c omplies wit h federalregulations iss ued und er the Chi ld Abuse Prevent ion and Treat ment Act, 42 U.S .C. §5101 et seq . The fede ral s ta tute pre scribe s eligibility criteria for cert ain feder al grants for child abuse and neglect treat ment and preventi on pro grams. To maintai n a stat e’s el igibi lit y, among other things, the state ’s law mu st includ e con fid entia lit y pr ovisi ons for child abus e and negle ct reco rds tha t are de sig ned to prot ect the rights of victims o f alleged ab use or neg lect and their pare n ts or guardians. 42 U.S.C. §5106a( b)(2)( A)(v). A rel at ed regu lati on38 [89 O p. Att’y requir es that project s an d prog rams supp orted b y federa l grants “must hold all info rmatio n relate d to personalfacts or circumst ances ab out individ uals involved in those pr oject s or progr ams confident ial and shall no t d isc lo se an y of th e in fo rm ati on in ot he r th an su m m ar y, statistical, or other

form wh ich do es no t identify sp ecific in dividu als [exceptin speci fied ci rcumstance s]. ” 4 5 CFR §1340.20. Anothe r regulation, on which A rticl e 88A, §6(b), is patterned, sp ells o ut spec ific circum stance s in wh ich d isclo sure is pe rmit ted. See 45 CFR §13 40.1 4(i).

III

Ap plic atio n o f A rticl e 88 A, § 6(b ), to Inde pend ent M onitor R eports

A. Res trictions on C onte nt of R epor ts

You firs t ask about

the ext ent to w hi ch Ar ticle 88A, §6 (b), limits the inf

ormation t

hat the Independent

Monitor mayinclud e in the report s requi red by

its enabli ng legis lati on. At fir st gl ance, t he two statutes may

appear to work at cross purposes. Article 88A , §6 (b), stri ctly

limi ts the discl osure of i nformati on conce rnin g invest igati ons of chil d abus e and neglect , even t o government officials. On the other hand, the Independent Monitor law requires repo rts that necessarily must discuss such investigati ons at DJS facilities.

We begin our a nalysis from the premi se that the two st atute s should be har

monized to t

he extent pos sible

. State v . Gh ajari, 346 Md. 101 , 115, 6 95 A .2d 14 3 (19 97) (“ wh en tw o statu tes a ppea r to apply to the sa me s ituation , this Co urt w ill attemp t to give effe ct to both stat utes t o the exte nt th at the y are re con cilab le”). In that light
we look to t

he legi slat ive purpos e underlying th ese enactments. Kaczorowski v. Mayor of Baltimore, 309 Md. 505, 514-15, 525 A.2d 628 (19 87).

The Independent

Monitorwas create d in resp onse to repo rts of all eged chil d abuse at DJS faci lities andconcerns that t here was
a need for enhanced ove rsight of the agency ’s handl ing of suchGen. 31] 39

5 The 1986 opinion also specifically addr e ssed the extent of disclosure when a child has died

and a parent or

other custodian of the child has been arrested on charges related

to alleged abuse. The L egisla ture subs equently codified and elaborated on the guidelines provided by the opinion, by enactingArticle 88A, §6A. Chapters 405, 406, Laws of Mary land 1998. That statute explicitly grants the Secre tary of Huma

n Resources and local social serv i ces directors the discretion to disclose information rega rding a ch il d a bu se in ve st ig at io n i f t he ch il d h as di ed or su ff er ed se ri ou s i nj ur y, criminal charges have

been filed, and discl osure is n ot contra ry to the best (continued...) incid ents

. See , e.g., Criminal probefocuses on boot camp gu ards; Glendening

orders monit

oring of all juvenile fac ilitie s , Baltimore Sun (De cem ber 1 4, 199 9) at p. 1 A. T he In depe nden t M onitor la w directs the Indepe ndent Monitor to review chi ld prot ecti ve servi ces findings regarding abuse orneglect investigati ons atDJS facilities, and to particip ate in local child abu se and n eglect mu lti-disciplinary investigatory teams, Articl e 49D, §§43, 44, and to report “[f]indings, actions, and recommendati on s , relat ed to the in ves tigat ion s of

... alle ged cases of child abu se and negle ct” t o the Subcabi net and legis lative leader ship, Articl e 49D, §45(a). These respons ibil iti es signala legisla tive inten t to inclu de sp ecific findings regardi ng child abuse and neglect

incide nts and invest igati ons in the Independent Mo nitor’s ongoing repor ts t o the Subcabi net and l egisl ative leader ship.

In our o pinion , Article 88A , §6 (b ), is not to the c ont rary. In
a 1986 opinion, Attorney General Sachs r eviewed Arti cle 88A, §6, and the rel atedfed eral l aw and reg ulati ons

. He concluded that , even with in the strict c onf

ines o f the “ legally ma ndate d pre serva ti on o f personalprivac y,” the statute and r egula tions sh ould be co nstrue d to perm it review of agencyperformance. 71 Opinions of the Attorney General368 (19 86)

. As Attorney General Sachs noted , the federallaw on which Article 88A, §6(b), is base d is i ntended t o protect the pri vacy of a child and the chi ld’s f amily and, thus, “can properl y be r ead as per mi ttin g discl osure, in the publ ic int erest , of inf ormation t

hat
wo uld notimpair pe rsonal privacy .” 7 1 Opini ons of t he Attorne

y General368, 377 (1986). 5 This is thoroughl y cons ist ent with the40 [89 O p. Att’y

5 (...continued) interests of

the child . Article 88A, §6A. In those circ umstances, the identity of the sus

pected v ictim of a buse ma y be dis closed, but not the identity of the person who r eported the alleged abuse or neglect. Article 88A, §6A(d)-(e). intent of the feder al law “to promote t he establ ishment and c onduct of effecti ve s tate prog rams to pr event and t reat c hild abus e.” Id

. Thus, as the 1986 opi nion concl uded, public disclosu re that doe s not
run afoul of Arti cle 88A, § 6(b) , andthat would c ontribute to a fulle r airi ng of “the qual ity

of performance by soc ial servic es ag encie s in handling child a

buse cases ,” would ul timat ely promote agency effectiveness and permit agencies and the publi c to ide ntify improv eme nts in organi zati on, admini stration, staffing, or funding of c hild pro tectiv e se rvic es. Id

.
No tably , the fe deral regulations, on which Article 88A , §6(b), is pattern ed clear ly

contemplat e that

non- identi fying information wil l be disclosed as p art of

the overs ight of a gency pe rformance. They prov ide tha t a state m ay, by statute, au thorize disclos ure to:

[a ]n appropri ate State or l ocal offi cial respo nsible for .. . overs ight of t he enabli ng or appropr iating legis lati on, carrying out his or her o ff icia l functi ons; and
[a] person, agency , or or ganizat ion enga ge d in a bona fi de .. . evaluation projec t, b ut w ithout in form ati o n identi fyi ng indivi dua l s named in a report or record, unless ha ving that informat ion open for revi ew is essential to the ... e valu ation , t he appr opriate State offic ia l gives prior writt en appr oval, and the child, through hi s/her repr e sentative ..., gives pe rmissio n to relea se th e inform ation

.Gen. 31] 41

6 This provis o would not pertain if specific information had already pr operly become a matter of public record – for example, if the all ege d perpetrator

had bee n named as a defe

ndant in a

criminal p roceed in g arisingout of the incident. See71 Opinions of the AttorneyGeneral 368, 375 (1986). 45 CFR §1340 .14(i)(2)(x )-(xi). As is evide nt, such a disclo sure is limite d, as nec essa ry, to pr ese rve ind ivid ual p riva cy. Attorney General Sachs conc lu de d s im il ar ly th at Artic le 88A , §6(b) is “no t intend ed to s hield f rom pub lic scrut iny

the functi oning of child protect ive ser

vices [and] shoul d be co nstrue d to p ermit disclosure of facts a

bout loca l depart ment perfor mance — if, but only if, disclosure does not co mp rom ise the p rivacy inter ests that t he restrictions requi re to be protect ed.” 71 Opinions of the Attorney Generalat 37 4-7 5.

Under the same re asoning, an Independent Mo nitor’s report may discuss specific i ncidents of alleged abuse or neglect at DJS facili ties, the st eps taken to invest igate such inci dents and pr ev en t further incide nts, and any findings or c o n clusi ons of the investigator s. Ho wever, the report should not

include informat ion from which the y outh, t

he yout h’s family, the repor

ter of the al leged abuse, or the alle ged abuser may be ident ifie d. 6 We understand that the Inde pend ent M onitor a lready see ks to e xclud e from its repo rts any p erso nally id entifiable info rma tion

.
Un der the se gu ideline s, signif icant d etails regardi ng agency performance may be di sclose d. Nonethel ess, we urge the In depend ent Monitor to t ake speci al car e to avoi d discl osing informat ion from which i ndividual s may be i dentif ied indirectly or informat ion that wou ld otherw ise invade p ersonal privac y. Insom e instances, for exam ple, this will require elimin ating re feren ces to the
a ge and home county

of a chil d, certain det ails of a n alle ge d incide nt, or the positio n class ification and s pecif ic job assi gnment of
an emp loyee. A s a ge neral g uidelin e, we suggest t hat the Independent

Monitor’s r eports include only the degre e of d etai l necessary for a reade r to asse ss the a dequacyof the public ag ency’s invest igati on and response to a repor t of suspe cted chi ld abuse.42 [89 O p. Att’y

B. Res tric tions on R espo nses to Re que sts un der th e Pu blic Information Act

OCYF periodi call y r eceives request s for copi es of rep orts of the Independent

Monitor, including t

hose that

contai n fi nding s regardi ng poss ible ch ild abu se or n eglec t incide nts an d their invest igati on. Sim ilar requ ests ha ve be en m ade to the D epartment of Le gisl ative Services , to whic h such reports ar e submitt ed unde r Artic le 49D , §45(a). You have asked what limi tati ons Artic le 88A , §6(b), places on t

he agency ’s res ponse to suc h reque sts. In particular, you ask w hether the ag ency must reda ct from the report
n o n-identify ing informat ion describing t he process by which an incide nt of a llege d child a buse was report ed, i nvesti gated, and resolved, before it release s the re port in r espo nse to such a requ est.

A request for a report

of the Indepe ndent Monitor i s governed bythe Ma ry land Publi c Informat ion Act (“PI A”). SG §10-611 et seq. The PIA provides a gene ral right of publ ic acces s to “p ub lic records” unless one of the various exceptions in the st at ute lim its
acces s. SG §10-61 3(a). A repo rt of the Indep enden t Mo nitor i s clearly a “publi c record” as it is “m ade by a unit ... of th e State govern ment

.. . in con nectio n w ith the tra nsac tion of pub lic business.” SG §10-61 1(g)(1).
Among the exceptions t o the gener al ri ght of acces s under the PIA a re s ituat ion s in w hich “ins pec tion wo uld be c ont rary to ... a State statute.” SG § 10-615 (2)(i). According ly, Article 88A, §6(b), which restrict s discl osure of i nform ation c oncerning r eports and invest igati ons of ch ild abuse, can be the basis for de nying ac cess to pub lic r ecords. However, in our opinion, i f an Independent Mo nitor’s repo rt follo ws the guide lines outlined in the previous secti on of this opi nio n, A rticle 88 A, § (6) sho uld n ot bar p ublic disclosure of th e rep ort. A s Atto rney G enera l Sach s obs erved in 1986, “ the pu blic has a vit al int erest in see ing to it t

hat those respo nsible for ch ild protec tive serv ices are doin g their jo bs pro perly and are provi ded with adequat e resour ces. The agenc ies i nvolved have no privacy int erestto be p rotecte d; on the co ntrary, the p ublic interest requir es that

they be he ld acc oun table for their performance, like any ot

her part of government. ” 71 Opinions of the Attorn e yGen. 31] 43

7 For similar reasons, the 1986 opinion concluded that another exception inthe PI A did not b ar a ccess to non-identifiable information. That exc e ptionprohibits p

ublic disc losure of

“public r

ecords t hat rela te to welfarefor an individual.” SG §10 -61 6(c ). N ot in g th at t he P IAmust be construed broadly to aff

ord public ac cess toinformation about actions of government

agenc ies and of

fic ial s, the 1986 opinion determined that informationon agency

performance that does not implicate individual privacy interests could be disclosed. 71 Opinions of the Attorney

General at 378. Thus, this exception would also not affect disclosure of a report by the Independen

t Monit or that c omplies wi th the gu idelines s et out in the previous section of this opinion.

8 This provision also permits Maryland law e nforce ment ag encie s to deny inspection of certain intelligence and security infor

mation, SG §10- 618(f)(1)(iii), and provides a “person in interest”with a somewhat g reater right of access, SG §10-618(f)(2)

.

9 To some extent, the assessment whether a disclosure of investigatory records is contrary to the

public interest involves considerations similar to the priva cy

concerns underly

ing Article 88A, §6(b). See, e.g. , SG §10- 618(f)(2)(iii)(investigatory record may be withhe ld if discl osure wo uld constitute an unwarranted invasion of personal privacy ); (iv) (disclosure of confide ntial sour ce); Mayor and

City Counc il of Baltimo rev. Maryland Comm

. Agai nst the Gun Ban, 329 Md. 78, 617 A.2d 1040 (1993) (disclosure of report of inter nal i nvestigation of police officer might dissuade witnesse s and possi ble infor mants from c ooperating in the

(continued...) General368 (198 6) (em phas is added). Under t he same reasoni ng, Article 88A, §(6), permits public di sclosur e of non-pers onal l y identif iable findi ngs re gard ing ag ency pe rform ance in resp onse to child abuse and negl ect al legat ions that the I ndep endent Monitor report s to the Subcabinet and the Legis latur e. 7

On oc cas ion , another e xcepti on to the PI A may apply to a spec ific report

or specifi c porti ons of a report. For exa mple, the P IA contai ns an excepti on for “records of investigati ons conducted by

... a police depa rtmen t, or a she riff,” as we ll as inve stigato ryfi les compiledby ot

her agenci es “for any

other law e nfo rcem ent, jud icial,
co rrect ional, or prosecu torial purpose.” S G §1 0-618(f)(1 ). 8 Inspect ion of those r ecords may be denie d if the cust odian bel ieves that th eir di sc lo su re w ou ld be co nt ra ry to the pub li c int eres t. SG §10-61 8(a). 944 [89 O p. Att’y

9 (...continued) investigation). However, other factors can a lso be part

of a determination whether an agency

should disclose an investigatory record. See, e.g. , SG §10-618( f)(2)(i) (interference withlaw enforcemen t procee dings); (vi) (prejudice to an investigation). Investigatory file s compiled by the poli ce in res ponse to a report of suspect ed chil d abuse or negl ect pl ainly are within the purview of

the inve sti gatory

records excepti on. Records compiled byDJS or a local department of social ser vices may also be w ithheld under this excepti on if certain s howings ca n be ma de. Equ itable TrustCo. v. St

ate Human Relations Comm ’n, 42 Md. App. 53, 399 A.2d 908 (19 79) , rev’d on ot her grounds , 287 Md. 80, 411 A.2d 86 (1980); Fioretti v. State Board of Dental Exam iners , 351 Md. 66, 716 A.2d 258 (199 8). In particu lar, the ag ency m ust be able to dem onstra te that it “le giti mately was in the pr oc es s of or i niti ating a spe cific relevant inves tigative proce eding” andthat di sclosur e of the inves tigatory inform ation w ould prejud ic e the inve sti gation or
cause some other i dentif iab le harm that j usti fies wit hholding t

he
reco rd. Fior etti , 351 M d. at 8 2, 91

.
A report

of the Inde pend ent Monitor might include informat ion drawn from the i nvesti gatory file s of another a gency for which that a gencymightreasonably deny a request

for access under the inv esti gat oryfile s excepti on. For exampl e, an Inde pendent Mo nitor’s report

might describe an ongoi ng in vesti gation and include informat ion that mi ght prejudi ce the i nvesti gation, reveal an invest igative technique, or discl ose a confidential source. In those circumstances, it wo uld be appropri ate for the Indepe ndent Monitor to withhold t

hat portion of

the repor

t from publi c inspection, i f the agencythat

provided the information would itself deny access under the in ves tigat ory file s ex cep tion

. In resp ond ing to a PIA request for a report , the Independent Monitorshou ld cons ult w ith those agenc ies t hat shar ed investigative re ports incorporated into the report to de termine w hether an y informat ion is subje ct to the inve sti gative file s excepti on and, i f so, whethe r its discl osure would caus e one of the har ms the except io n is designed t o prevent – e.g. , je opardize an ongoing inve sti gation.Gen. 31] 45

In som e inst ances, t

he Independent

Monitor may ne ed to del ay pub lic disclos ure o f info rmatio n un til after administ rati ve or judi cial pro cee din gs h ave bee n co mp leted

. As a practi cal matt er, i t maybe difficult fo r the S tate officials who recei ve a report of the In depen dent M onitor’s to know whether the report

contai ns s uch materi al exempt from public i nspecti on under the PIA. I f the Inde pendent Monitor is aware at

the time a report is di sseminat ed that certa in port ions ar e exempt under the investigatory records exemption, it shou ld iden tify those p arts of the
r eport fo r the be nefit o f the o fficials to w hom the rep ort is dissemi nated. Th e I nd ep en de nt Mo ni tor shoul d strive to the extent poss ible to avoid inc luding mat erialin a repor t that must be redac ted before the report

is publ icly

dissemi nated.

C. Whether Re stric tions Depend on the Source of t he Information

Finally, youask whether t he discl osure re stri ctions imposed byArticl e 88A, §6(b), depend upon which agency is t he source of parti cular

informat ion. As noted above, in assessing a DJS response to alle gations of chil d abuse and negle ct, the Indepe ndent Monitor reli es on informat ion and repor ts fr om a variet

y of age ncies and other s ources, in addition to i ts own staf f.

The applicability of Article 88A , §6(b), t o the inve sti gative findings of agencies other t han a department of soc ial se rvices has been discus se d in se veral p rior op inions of the Atto rney G enera l. Those opinions indicate that the s tatut e must be const rued to pr otect the privacy

of the per sons involved in an abuse or neglec t incide nt, regardl ess of whether

informat ion about t

he inci dent was report ed bypersonnelof the loca l depart ment of soci al ser

vices or other agencyinvestigator s. 76 Opinions of the AttorneyGeneral220, 231- 32 (1991) (information gathered by school sy st ems , in respo nse to alle ga tions of ch ild abu se by sch ool p erson nel, is su bject to confidentia lityrequ ireme nts of Article 88A, §6(b)); 82 Opinions of the AttorneyGeneral72 (199 7) (Art icle 88A, §6(b), proscriptions
are ap p lica

ble to l aw enforcement rec ords). The Independent Monitorhas the s ame obligation to mai ntain t he confident iality

of46 [89 O p. Att’y
protect ed informat ion under Articl e 88A, §6(b), as does DJS, a local department

of socialservi ces, or

a law enforcement

agencythat pro vid ed in for ma tion to th e In dep end ent M oni tor.

The confident iality

requir ements ass ociat ed with child abuse invest igati ons are b as ed on the nat ure of the informat ion, not the agencythat c onducted the investigati on. The s ame guidelines set out above apply to a ll informat ion ari sing fr om a chil d abuse or negl ect invest igati on, regardless of the ori ginal s ource of the informat ion.

IV

Conclusion

In sum mary, it is ou r opin ion tha t:

1. A report by t

he Independent

Monitor may, and should, include findings and recommen dati ons regar ding publi c agency performance in resp onse to alle gations of chil d abuse and negl ect at D JS facil iti es. However, t o comply wit h Articl e 88A, §6(b) , th e report should not

identi fy, or disc lose in formati on that invades the privacy of, a chi ld, t

he chil d’s family, the individual who allege dly committed

the abuse, or t he individual who reported suspected abuse to State or localauthoriti es.
2. Assuming that a re port is p repare d in co mp liance with Article 88A , §6(b ), that statu te would not furt her restrict the pub lic inspection of

th e r ep ort p ur su an t t o a PI A r e ques t. Of c ourse , in respondi ng to a PIA re q uest, the Independent Monitor must also consider other a pplica ble exception s to the gene ral rule of disclosure
u nder the PIA. I n parti cular, the Indepe ndent Monitor s ho ul d
cons ult with agenci es that providedunderlying inves tigative r epor ts to determi ne whether publ ic dis closur e of the cont ent s of those records would com prom ise a cur rent i nvesti gation or

otherwis e be contrary to the publi c inte rest . To the ext ent possible, the Independent

Mo nitor should ide ntify the parts of a report subject to that exemption at the time the report is provided to Stat e officials.Gen. 31] 47

3. The restriction s imp osed by Article 88A , §6(b ), apply to informat ion that

the Independent

Monitor obtains from DJS, local depa rtmen ts of socialservi ces, l aw enfor ceme nt agenci es, or other agencies, as well as to res ults of any investi gation by the Independent

Monitor it self. J. Joseph C urran, Jr. AttorneyGeneral

JoAn n Go edert Assist ant A ttor ney Genera l

Ro bert N . Mc Do nald Chief Counsel Opinions and Advic e