To assess the level of confidentiality afforded to child abuse records nationwide, this Article will
analyze the Child Abuse Prevention and Treatment Act and corresponding federal regulation25
and the relevant statutes of all fifty states and the District of Columbia to determine the number
and scope of individuals and entities specifically granted access to child welfare records. The
federal law is used as a benchmark for the state statutes in this analysis because federal funding is
contingent on the states statutorily providing for the confidentiality of child abuse records, and
federal laws provide guidelines for the states.26 The state statutes27 will be compared and
contrasted to one another and to the federal regulation based on the individuals and entities28 each
state permits to access information contained in child abuse records. These individuals are
included as either mandatory recipients – parties the federal or state law determines “shall” have
access to the records – or discretionary recipients – parties who may be granted access to records
at the discretion of the recordkeepers.
Part II of this Article discusses the federal laws and regulations that mandate states
protect the confidentiality of child abuse records. Part III offers a comparative summary of the
laws analyzed in Part II and subsequently provides recommendations for achieving an optimal
balance between accountability and privacy. Finally, Part IV offers conclusions from the analysis
and recommendations for future disclosure laws.
II. FEDERAL LAWS
It was not until the mid-nineteenth century that child abuse came into the national
spotlight and states began criminally prosecuting parents for beating their children.29 In 1874, the
case of a young girl, Mary Ellen, hit the front pages of The New York Times, documenting a court
proceeding against the child’s two caretakers for cruel abuse.30 This case prompted private
societies and charity organizations to intervene in incidents of child abuse.31
Nevertheless, the government did not begin to actively protect children until Dr. Henry
Kempke published the article Battered Child Syndrome in 1962.32 Kempke, a pediatrician,
identified certain injuries in children that could only result from abuse.33 Armed with this new
knowledge, states enacted legislation requiring certain persons, known as mandated reporters, to
report incidents of child abuse.34 By 1967, every state had passed a mandatory reporting statute.35
In 1974, Congress passed the Child Abuse Prevention and Treatment Act (“CAPTA”)36
in an attempt to create a “focused Federal effort to deal with the problem [of child abuse].”37 This
25 Child Abuse Prevention and Treatment Act, Pub. L. No. 93-247, 88 Stat. 4 (1974) (codified as amended at 42 U.S.C.A. §§ 5101–
5106 (West 2014)); 45 C.F.R. § 1340.14 (2014).
26 42 U.S.C.A. § 5106a(b)(2)(B)(viii) (West 2014).
27 A state-by-state legislative search in LexisNexis Law was conducted using the following search terms: “‘child abuse’ AND
‘records’”; “confidential records”; “child abuse reports”; and “child abuse.” In some states, when relevant statutes did not appear in
the search results, the states’ legislative tables of contents were searched for statutes relevant to records created by child-protection
28 For a list of the categories of parties and their definitions, see infra Appendix I.
29 Susan Vivian Mangold, Challenging the Parent-Child-State Triangle in Public Family Law: The Importance of Private Providers in
the Dependency System, 47 BUFF. L. REV. 1397, 1418, 1422-24 (1999).
30 Id. at 1424.
31 Id. at 1424-25.
32 C. Henry Kempe, et al., The Battered-Child Syndrome, 181 J. AM. MED. ASS'N 17 (1962).
33 Mangold, supra note 29, at 1429.
36 Child Abuse Prevention and Treatment Act, Pub. L. No. 93-247, 88 Stat. 4 (1974) (codified as amended at 42 U.S.C.A. §§ 5101–
5106 (West 2014)).
37 Susan Vivian Mangold, Reforming Child Protection in Response to the Catholic Church Child Sexual Abuse Scandal, 14 U. FLA.
J.L. & PUB. POL'Y 155, 158 (2003) (citing Child Abuse Prevention Act, 1973: Hearing Before the Subcomm. of Children & Youth of
the S. Comm. on Labor & Pub. Welfare, 93d Cong. 2 (1973) (letter from Walter Mondale to Hon. Harrison A. Williams)).