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Suit demands DCS records on children who died

5:21 PM, Dec 19, 2012   |    comments
CS Commissioner Kate O'Day talks with the Tennessean editorial board in October. - Steven S. Harman / The Tennessean / File
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By Anita Wadhwani and Tony Gonzalez | The Tennessean

The Tennessean, joined by a coalition of the state's newspapers, television stations including WBIR and other media organizations, filed a lawsuit this morning 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.

The filing 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.

"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 at Tennessean.com).

"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 at Tennessean.com).

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.

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."

Lawsuit follows scrutiny

DCS and Commissioner Kate O'Day 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. "They're not to protect DCS, they're really to protect the families."

Haslam has since backed the department's withholding of the files.

"The governor and the Attorney General's Office are comfortable with DCS's position," a Haslam spokesman said earlier this month.

Reach Anita Wadhwani at 615-259-8092 or awadhwani@tennessean.com and Tony Gonzalez at 615-259-8089 or tgonzalez@tennessean.com.

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