The Tennessean, joined by a coalition of the state's newspapers, television stations and other media organizations, filed a lawsuit Wednesday against the state Department of Children's Services, alleging the agency is violating the law by refusing to make public the records of children who died after being brought to the agency's attention.
Filed in Davidson County Chancery Court, the lawsuit asks the court to order DCS to explain why the records were not provided. And it asks that the department immediately give those records to the court so a judge can review them and redact any confidential information, and for the records to then be opened to the public for review.
Tennessean requests over a three-month period have failed to persuade DCS to open its files on child deaths. In the first six months of 2012 alone, there were 31 deaths among children, ranging from newborns to teenagers.
"The public has a strong interest in knowing what actions DCS took — or failed to take — in order to protect them," the lawsuit states.
"This public interest outweighs any privacy concerns DCS has referred to in limiting its disclosure of information. The public has a right, under federal and state law, to understand how children under DCS's supervision (or with whom DCS had prior contact) died and came close to death. DCS's disclosure of this information may help to prevent similar tragedies in the future."
A dozen news organizations joined the suit, creating the largest coalition of Tennessee media organizations — in terms of number, geographic scope, readership and viewership — to ever file a public records lawsuit, according to Robb Harvey, an attorney with Waller Lansden Dortch & Davis who is representing The Tennessean.
DCS Commissioner Kate O'Day responded to the lawsuit in a written statement Wednesday afternoon.
"Child safety is our number one priority, and we must protect the rights of the children and families we work with. The department has made every effort to provide information, open access to meetings, and interviews with staff to what I believe is an unprecedented level while also protecting those rights," O'Day wrote. "Our legal staff, together with the Attorney General's Office, has recently reviewed the legal arguments made by The Tennessean and believes we have produced all the documents that we can consistent with the provisions of state and federal law. We support an open improvement process for the department, and we will continue to work to provide information, access and interviews to The Tennessean and other media outlets consistent with the law."
A spokesman for Gov. Bill Haslam declined to comment.
The lawsuit describes the Tennessee Public Records Act as "among the broadest in the country," and says the Tennessee Supreme Court has been vigilant in protecting the public's right of access (view the lawsuit at Tennessean.com).
"We believe the records should be made public and have worked for months with DCS to try to get documents. Unfortunately, those efforts, and examples of similar documents made public in other states, did not sway Tennessee officials," said Maria De Varenne, Tennessean executive editor and VP/News.
"The care and protection of these children is paramount. Making these records public would shine a light on the state's programs and procedures — those that are exemplary and those that need improvement.''
The lawsuit follows the latest DCS refusal to provide records, which arrived in a letter Tuesday in response to a deadline imposed by The Tennessean and a dozen news organizations who joined the newspaper's request for records (view the letter).
"A full consideration of the legal arguments and authorities, including those discussed in your letter of November 28, supports the Department's determination that it has produced all the documents that it can consistent with the provisions of state and federal law," Deputy Attorney General Janet Kleinfelter wrote in response to The Tennessean.
To date, DCS has provided brief summaries of the child deaths.
Instead of providing the actual case files or records that would show how casework was reviewed, the state created spreadsheets, with a single line for each child.
Those disclosures were described as "woefully inadequate" in a Nov. 28 letter from De Varenne and Harvey to DCS (view the letter).
The disclosures also contained factual errors. DCS acknowledged the information it released included incorrect numbers of children who died this year and incorrect dates of death for two of the children.
The records case has been assigned to Davidson County Chancellor Carol McCoy. The news organizations requested a Jan. 8 hearing.
Newspapers, stations join lawsuit
News organizations joining The Tennessean's pursuit of DCS records include the state's largest newspapers: the Knoxville News Sentinel, the Chattanooga Times Free Press and the (Memphis) Commercial Appeal.
In Nashville, television stations WSMV-TV Channel 4 and WKRN-TV Channel 2 joined the suit. Other broadcast stations include WBIR-TV Channel 10 in Knoxville and WREG-TV Channel 3 in Memphis.
Also joining the suit are the Associated Press, the Tennessee Press Association, the Tennessee Coalition for Open Government and the Tennessee Associated Press Broadcasters.
Knoxville News Sentinel Editor Jack McElroy said his newspaper had joined the lawsuit because the stakes are high in how well the agency does its job in protecting children.
"It's such an important issue because children's lives are at stake," McElroy said. "I understand that the questions are complex, that there are privacy dimensions as well, but it's the responsibility of the press to stand up for openness and to make sure the government is held accountable and that decisions are made in the full light of public awareness."
Chattanooga Times Free Press Managing Editor Alison Gerber said the public had a right to know what happened to those children.
"It's something the public has a right to know about as it pertains to the safety of children,'' Gerber said. "We think that if media organizations join together in the face of officials not wanting to provide public information, it may send them a message that we're serious about public information and about seeking information that we believe the public has a right to know about."
Meanwhile, the San Diego-based Children's Advocacy Institute, which tracks the transparency of child welfare agencies, still awaits a DCS response to a similar records request filed on Nov. 7.
Elisa Weichel, institute administrative director, said her group gave Tennessee a "B plus" for its laws and policies requiring transparency in the case of child deaths.
But the institute is testing whether states like Tennessee, with such solid transparency laws on paper, are actually functioning in reality. The Children's Advocacy Institute asked for child fatality and near-fatality information, but says it has received no acknowledgment of the request thus far.
"In these specific instances involving a child's death or near fatality, we need to make sure the system serving these kids didn't drop the ball or miss an opportunity to save that kid and, in turn, save future kids down the road," Weichel said. "There are a lot of reasons for systems breaking down. Systems are under-resourced. It's not about blaming. Sometimes it's about trying to raise public awareness that these agencies don't have the proper resources to do a good job."
Lawsuit follows scrutiny
DCS and its chief have come under fire in recent months for a series of problems and missteps. For example:
- The department's chief lawyer acknowledged the agency had been violating the law by not reporting child deaths to lawmakers.
- A sheriff and child advocates in Dickson County said DCS wasn't properly intervening in situations where children were experiencing severe abuse.
- The state's child abuse hotline was leaving as many as a quarter of all calls unanswered.
- The DCS computer system failed to make proper payments to foster parents and private agencies, and accompanying data problems have meant the agency can't provide accurate information on children in its care, which has hindered progress on a federal court settlement that requires the agency to take better care of foster children.
The concerns raised by lawmakers and child advocates prompted Gov. Bill Haslam to review the 31 child fatality case files in September. He said he couldn't find signs that DCS made errors.
After the review, Haslam told The Tennessean in October that he wanted to hand over the case files to the newspaper to show the type of effort that DCS put into those cases, but that O'Day talked him out of that because of privacy concerns.
O'Day said she didn't want to identify the deceased children in the interest of protecting the privacy of surviving family members.
"These are very real issues and the reasons for these privacy laws," O'Day said then. "They're not to protect DCS — they're really to protect the families."
Haslam has since backed the department's withholding of the files.
Originally published in The Tennessean on December 19, 2012.
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