records into evidence in a court proceeding. 145 Kansas specifically directs courts to consider
particular interest, including whether the disclosure is “in the best interests of the child” and,
under certain circumstances, that the disclosure will not negatively effect the privacy interests of
the child. 146
North Carolina uses the court as a primary method to protect the confidentiality of child
abuse records, mandating that “records shall be withheld from public inspection and . . . may be
examined only by order of the court.” 147 Only a few parties—the child, the guardian ad litem, the
department of social services, and the child’s parent, guardian, or custodian, as well as those
parties’ attorneys—may access records without a court order. 148
Although using the courts as a filter in this way ensures a case-by-case evaluation of the
appropriateness of information being disclosed to certain parties or the general public, it may also
hinder accountability. If the majority of requests go through the courts, access to records may be
delayed as a result of the time required to petition the court for such access. In contrast, South
Dakota offers a more balanced approach, allowing a court to order the public release of
confidential information by an authorized recipient, such as a physician or foster parent. 149 This
allows a variety of enumerated persons and agencies to access the records for necessary purposes,
but also provides an option for those individuals and the public to appeal for public disclosure.
3. Director-Determined Parties
In addition to identifying specific individuals and entities who may access child abuse
records, three states allow additional, unspecified disclosures at the discretion of a person with
administrative responsibilities in the child-protection agency. Ohio, while granting access to the
child-welfare agency and the director of the agency’s and county’s director of job and family
services, requires all other persons to acquire written permission of the executive director of the
agency. 150 Rhode Island permits records to be disclosed when “the director determines that there
is a risk of physical injury by the person to himself or herself or others, and that disclosure of the
record is necessary to reduce that risk.” 151 Oregon allows the Department of Human Services to
release records to:
This discretionary disclosure provides flexibility, but little predictability because of the
application of the ill-defined “best interest of the child” standard. 153 There should be clear
145 See, e.g., LA. REV. STAT. ANN. § 46:56(F)(8)(b) (2013); MONT. CODE ANN. § 41-3-205(2) (West 2013); NEV. REV. STAT. ANN. §
432B.290(1)(e) (West 2013).
146 KAN. STAT. ANN. § 38-2212(e), (f)(2) (West 2013).
147 N.C. GEN. STAT. ANN. § 7B-2901(a) (West 2013). West Virginia allows access to records pursuant to court order provided that the
court reviews the records for relevancy and materiality, and may limit the use of such records. W. VA. CODE ANN. § 49-7-1(b)(4)
148 N.C. GEN. STAT. ANN. § 7B-2901(a)(1)-(4).
149 S.D. CODIFIED LAWS § 26-8A-13 (2013).
150 OHIO REV. CODE ANN. § 5153.17 (West 2013).
151 R.I. GEN. LAWS ANN. § 42-72-8(b)(3) (West 2013).
152 OR. REV. STAT. ANN. § 419B.035(3) (West 2013).
153 Although states use the standard of “best interests of the child” for determinations relating to children in the child welfare system,
there is no standard definition. See CHILD WELFARE INFO. GATE WA Y, U.S. DEP’T HEA TH & HUMAN SERVS., DETERMINING THE BEST
INTERESTS OF THE CHILD 2 (2012), available at https://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interest.pdf.
Some relevant factors used in state statutes include child/parent relationship, ability of parents or guardians to provide basic needs,