Keep Your Friends Close and Your SCARs Closer: Mandated Reporters Are Not Immune from Lawsuits for Unwarranted Disclosures under the Child Abuse and Neglect Reporting Act

In a decision of first impression, the Fourth District Court of Appeal has held that a public school employee is not immune from a lawsuit for disclosing a Suspected Child Abuse Report (“SCAR”) to anyone other than those specifically listed in the Child Abuse and Neglect Reporting Act (Penal Code §§ 11164, et seq.; “CANRA”). Additionally, public school employers may be liable for an employee’s negligent disclosure of a SCAR.

In Cuff v. Grossmont Union High School District (Case No. D062278 [November 18, 2013]), a father accompanied his two sons to their high school to report that their mother had physically and verbally abused them. The three met with Susan Saunders, a school counselor and designated “mandated reporter” under CANRA. As a mandated reporter, Ms. Saunders was required to report suspected child abuse and neglect to certain authorities identified by CANRA. Based on what the boys told her, Ms. Saunders prepared a SCAR outlining the alleged abuse they suffered and forwarded it to Child Welfare Services. Ms. Saunders also gave a copy to the boys’ father so he could deliver it to a law enforcement agency with the goal of taking the boys into protective custody.

Instead of taking the SCAR to a law enforcement agency, father, who was divorced from the boys’ mother and did not have custody, took it to superior court to file an application for a protective order against the boys’ mother and obtain sole custody. Ultimately, the court denied the application and ordered that the boys’ mother retain sole legal and physical custody. In turn, the boys’ mother sued Ms. Saunders and the school district alleging an invasion of privacy under CANRA for the unwarranted disclosure of the SCAR to the boys’ father. Ms. Saunders and her employer argued that the lawsuit must be dismissed because Ms. Saunders enjoyed immunity, as the release of the SCAR was a “discretionary act” and thus Ms. Saunders was protected from liability. (Gov. Code § 820.2.) The trial court agreed and granted summary judgment in favor of Ms. Saunders and her employer. Mother appealed the decision.

The Court of Appeal disagreed with the trial court and ruled in mother’s favor. The court examined CANRA, which provides that SCARs are confidential and may be disclosed only to certain designated persons and entities. (Penal Code § 11167.5.) The court recognized that releasing a SCAR to any other person or entity is punishable as a crime. Because a mandated reporter is prohibited from disclosing SCARs to anyone other than those listed in CANRA, a mandated reporter does not have “discretion” whether to release a SCAR; therefore, employees do not enjoy immunity under the Government Code for otherwise discretionary acts. Accordingly, the court reversed the trial court and ordered that the lawsuit be allowed to proceed on the merits.

Two other features of the Cuff decision are important. First, the court held unequivocally that a SCAR is not a “pupil record” under the Education Code. The court ruled that labeling a SCAR as a pupil record would undermine the purpose of CANRA because pupil records may be viewed by persons not identified in Penal Code section 11167.5. Second, the court acknowledged that a mandated reporter’s release of a SCAR in violation of CANRA can subject his or her employer to liability. The court pointed to Government Code section 815.2, which provides that a public employer is liable for the unlawful acts or omissions of its employees (commonly referred to as “derivative liability”). In the Cuff matter, Ms. Saunders did not qualify for immunity based on her release of the SCAR. As a result, her employer was likewise subject to liability.

The Cuff case reaffirms that mandated reporters are held to the strictest standards of confidentiality. It is a sobering reminder to mandated reporters that even with the best intentions, the unauthorized release of confidential information can lead to serious consequences. Employers are encouraged to remind their mandated reporters of CANRA’s confidentiality provisions, especially considering that the unauthorized release of information may subject them to civil and criminal liability, and the costs of defending a lawsuit.

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