provide for discretionary disclosure, usually by authorization of the child welfare agency director
or agency regulations. For example, the Delaware law provides that the “Department [of Health
and Social Services] shall have the discretion to release information from its records to public and
private agencies if it determines that such release will serve the best interest of children in its
care.”60 As standards for the child’s “best interest” may vary greatly among records custodians,
these general statements allow the child welfare agencies a great deal of flexibility.61 However,
such broad legislative mandates fail to provide consistent protection for confidentiality and
B. States Granting Access to Parties Defined in the Federal Regulation
CAPTA requires that in order for states to be eligible for funds supporting the prevention,
investigation, and treatment of child abuse and neglect, states must implement a plan to preserve
the confidentiality of the records created.62 As a part of the states’ plans, CAPTA requires that
the records “shall only be made available” to certain persons and entities.63 The enacted federal
regulation further enumerates eleven categories of persons to whom states may statutorily grant
access to child welfare records consistent with CAPTA.64 This Section will discuss the parties
identified in the regulation that at least some states have provided access to in the state statutes.
1. Child Welfare Agencies
This category of parties, as defined in the federal regulation, includes the agency or
organization “legally mandated by any Federal or State law to receive and investigate reports of
known and suspected child abuse and neglect.”65 Thirty-seven states and the District of Columbia
specifically authorize the agency or employees of the agency to access child abuse records.66 It is
conceivable, however, that other states’ legislatures have not found it necessary to specify this
party because the agency would be the origin of the reports and, therefore, would necessarily
have access to them.
2. Courts and Grand Juries
The federal regulation provides generally that state courts and grand juries shall have
access under terms set forth by the individual states.67 Thirty-one states and the District of
Columbia specifically mention the courts or court officials as parties to whom disclosure of child
abuse records may be made.68 Seventeen states identify grand juries as an entity to which records
may be disclosed.69 Most states impose requirements of relevance or necessity on the disclosure
2013); N. Y. COMP. CODES R. & REGS. tit. 18, § 465.1 (2013); OHIO REV. CODE ANN. § 5153.17 (West 2013); VA. CODE ANN. § 63.2-
1515 (West 2013).
60 DEL. CODE ANN. tit. 29, § 9017(b).
61 The Idaho statute also provide for disclosure when it is in the “best interest” of the child. See IDAHO CODE ANN. § 9-340B.
However, the statute does not provide any guidance as to what factors should be considered in determining whether such disclosure is
necessary. See id. The Idaho statute adds “best interests of the child” as an additional justification for disclosure to a list including
health, safety, or public interest. Id. § 9-340B(6).
62 42 U.S.C.A. § 5106a(b)(2)(B)(viii).
64 45 C.F.R. § 1340.14( i)(2) (2014).
65 Id. § 1340.14( i)(2)( i).
66 The states that grant access to child welfare agencies are Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida,
Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana,
Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, South
Carolina, South Dakota, Tennessee, Texas, Utah, Washington, Wisconsin, and Wyoming.
67 45 C.F.R. § 1340.14( i)(2)( ii).
68 The states that grant access to courts are Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nevada, New Jersey, New Mexico, North
Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Wisconsin, and Wyoming.
69 The states that grant access to grand juries are Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Maine, Michigan, Missouri,
Nevada, New Hampshire, New Jersey, South Carolina, Tennessee, West Virginia, Wisconsin, and Wyoming. See ARK. CODE ANN. §
12-18-909(g)(11)(A) (West 2013); GA. CODE ANN. § 49-5-41(a)(3) (West 2013); 325 ILL. COMP. STAT. ANN. 5/11.1(a)(9) (West
2013); IND. CODE ANN. § 31-33-18-2(10) (West 2013); FLA. STAT. ANN. § 39.202(2)(g) (West 2013); ME. REV. STAT. ANN. tit. 22, §