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The Court of Appeals interprets the bad faith disclosure exception to the general rule that prohibits the disclosure of information related to reports of the abuse of children to DSS
Norfolk Dept. of Social Servs. v. Goldberg, Record No. 1382-23-1 (Va. Ct. App. Aug. 20, 2024)
Facts. Joshua Goldberg and his wife Ali had two young children, including their daughter, L.G. Ali’s mother Linda MacKrell did not approve of how the couple raised their children and had made false allegations of abuse against Goldberg. When an unfounded complaint of abuse was made to the Norfolk Department of Social Services (DSS) against Goldberg he suspected MacKrell again.
So, Goldberg petitioned the circuit court to release the records of the investigation related to the complaint under the bad faith disclosure exception in Code § 63.2-1514(D). The petition alleged that Goldberg believed that MacKrell, or someone acting on information provided by MacKrell, had made the complaint as it contained information that only she knew. The petition alleged that the complaint was made “in bad faith and maliciously in order to end the relationship between [Goldberg] and [Ali] to create a situation where [Ali] would need Ms. MacKrell’s assistance with the children and thus be allowed to be integrated in their lives.”
DSS opposed the petition, arguing that the report was made without bad faith by a mandatory reporter and therefore did not qualify under the statute. It argued that to qualify for release under the disclosure exception in the statute, the complaint must have been conveyed directly to DSS by someone acting in bad faith.
At an evidentiary hearing, Goldberg and Ali testified as to why they believed that MacKrell had instigated the report in bad faith. Goldberg also testified that he would take no action to threaten MacKrell’s safety and that he had no history of violence, against MacKrell or anyone else. The trial court determined that Goldberg had met his burden under the disclosure exception and allowed him access to the records, but DSS appealed. The trial court suspended execution of the final order until the appeal was resolved.
Issue. Whether Code § 63.2-1514(D) applies only to malicious or bad faith reports made directly to a local DSS office, or whether it also permits disclosure of such a report made to a mandatory reporter who then innocently conveys the same to a local DSS office.
Holding. Code § 63.2-1514(D) permits disclosure of a malicious or bad faith report relayed through a mandatory reporter.
Notes. Reports of child abuse are generally kept confidential, but Code § 63.2-1514(D) creates a narrow exception that allows the subject of a complaint to access these records when the complaint is made “in bad faith or with malicious intent” and other requirements are met. Because the statute is ambiguous with respect to whether it applies only to a direct report to a local DSS office or also to a report made through a mandatory reporter, the Court looked to the purpose of the law to determine its meaning. Here, the General Assembly intended the provision to allow those who have been maliciously accused or accused in bad faith of a complaint to file a civil suit against the complainant. It is a “tool” that allows a victim of a malicious or bad faith report to “fend off” false reports. The Court concluded that allowing a malicious or bad faith reporter to shield release of the information by using an innocent intermediary defeats the purpose of the statute. Thus, an interpretation that allows for the disclosure of records related to a malicious or bad faith complaint to an intermediary is consistent with the statute’s purpose.