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The Journal Gazette

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Tuesday, September 10, 2019 1:00 am

State wants records in DCS suit sealed

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – State officials are trying to seal documents in a federal class action suit alleging the Indiana Department of Child Services is failing to protect children in its care.

Lawyers for Gov. Eric Holcomb and DCS Director Terry Stigdon argue that some records need to be sealed to shield the young children in the case. But the plaintiffs who filed the case say pseudonyms are already being used and sealing documents just means hiding information from the public.

A brief filed Friday by two advocacy groups and an international law firm on behalf of several foster children questioned whose privacy the defendants' are actually interested in protecting.

“Plaintiffs have never contended that access to the children's individually identifiable information, such as their names, addresses, or birthdates, are in the public interest. However, the details of Plaintiffs' allegations, and the children's stories as they relate to structural deficiencies in Indiana's child welfare agencies, are most certainly in the public interest,” court records said.

The lawsuit, filed in July in federal court in Evansville by A Better Childhood, Indiana Disability Rights, and Kirkland and Ellis, says the agency removes too many children from their homes, often places them in inappropriate settings and allows them to unnecessarily languish in foster care.

Two Allen County children are plaintiffs in the case.

There has been a flurry of filings in recent weeks, including a motion to dismiss by the state.

Marcia Lowry, executive director of A Better Childhood, said the law clearly makes actual court records confidential, such as the docket in the case.

But information derived from the records is public, she said. And by changing the kids' names and redacting personal identifying information the children are protected.

“We think it's important to tell the children's stories – what happened to them, what kind of harm they went through. We think the state is taking way too broad a position,” Lowry said.

One example she gave is the state's move to seal sworn affidavits by family case managers that are neither juvenile court records nor child abuse and neglect records.

But lawyers for the state said in a brief that all attorneys have equal access to the sealed documents, and no one is prejudiced.

“However, if the documents are not maintained under seal, the minor plaintiffs would be substantially harmed by the revelation of their personal identifying information and confidential case details,” the defendants said.

“Finally, no harm to the public exists in connection with maintaining the Sealed Documents under seal. Any harm which could conceivably be claimed to exist is outweighed by the fundamental duty of the parties and counsel to maintain the confidentiality of juvenile court records and child abuse and neglect records under Indiana law.”

The state has also asked that discovery be halted – the exchange of official documents – until the motion to dismiss has been ruled on. And that if the case continues each child's claim be litigated separately “given the unique, individualized nature of each Plaintiff and his or her unique history and circumstances.”

nkelly@jg.net