New York State Office of Family and Children's Services: no confidentiality agreements are sought from "trainees" before disclosing to them parents' confidential information and no procedures exist preventing re-disclosure

On November 4, 2016, I have filed a Freedom of Information Request with the New York State Office of Family and Children's Services (NYS OCFS), after that office denied me access to a "training video" because it contained a confidential "identifiable" information from a certain family.

In that FOIL request, I asked for copies of confidentiality agreements from those to whom that information WAS shown and for consent of the family to have their information shown to a 242 "trainees".

Within 10 days, I received a reply from NYS OCFS.

Here it is, in its full glory.

I will remind my readers what I was asking for in that FOIL:

So, since NYS OCFS claims it has NO RECORDS "responsive" to my FOIL request, that means that NYS OCFS admits that:

1) The 242 "trainees", including judges, CPS workers and attorneys and private attorneys who were shown a video on November 18, 2014 that NYS OCFS did not allow me to see because it allegedly contained "identifiable private" information about a family or a child were shown that same video without being required to sign a confidentiality agreements;

2) NYS OCFS released confidential information to whoever created that video without a contract for creating that video - so, that video may very well have been an investigative video from a real CPS/police case, shown to the whole wide world without consent of either the parents, or the parents' attorneys, and possibly shown to the parents' opponents in litigation, neighbors, competitors in business or judges who never had, and never supposed to have access to that case;

3) NYS OCFS did not follow the very law that it used to deny me access to the video and did not issue a prior written approval for the use of private information contained in the video for research and training;

4) that NYS OCFS did not seek consent of the family whose information was, on the one hand, confidential for release through FOIL, but not confidential to be shown to 242 people who had no legal grounds to see that video, and had no restrictions on redistribution of its contents; and, as the most important information, that

5) NYS OCFS does not have any policies, rules or procedures tracking the once-disclosed confidential information and seeing how that information was further re-disclosed.

In other words, NYS OCFS admitted that, with all claims of "confidentiality" - for FOIL purposes, it treats information in the Child Abuse Register as disclosable to the "chosen" individuals at a whim, with no care or concern about how it will further be re-disclosed or used.

This is a class lawsuit waiting to happen, and NYS OCFS knows it.

Any parents who have been in the cross-hairs of CPS in New York before November 18, 2014 have a reason to file that lawsuit now, seeking disclosure whether their confidential information was subject to unlimited dissemination to unauthorized individuals, and challenging the lack of procedures in NYS OCFS tracking re-disclosure of such information.

A new FOIL request was filed with NYS Office of Children and Family Services verifying how secure the data in Child Abuse Register is from unwarranted disclosure

Yesterday, I received an answer from New York State Office of Children and Family Services to my administrative appeal of partial denial of my previous FOIL request.

Among other things, the response of NYS OCFS Appellate Officer said the following:

The list of the "training team members" was provided to me in the earlier FOIL disclosure by NYS OCFS, and I publish it here, the list of members starts at Page 3.

New York State Office of Children and Family Services claimed that I am not entitled to access to the video that was used in the training of 242 "training team members" that NYS OCFS also calls "county court-child welfare collaboration" teams.

Note that the "collaboration" is taking place out of court, and is not reported to parties in the specific child protective court cases.

Both ex parte communications and basing judicial decisions on evidence that is obtained outside of court proceedings is illegal in New York.  A judge may not participate in a CPS investigation, and thus any "collaboration" with CPS for judges (and their law clerks) are also illegal.

Yet, among the 242 "trainee members" of Office of Court Administration (OCA)/OCFS "collaborative teams" were multiple judges and law clerks from Family Courts from across New York State, I noted judges and law clerks from Erie, Suffolk, Westchester, Monroe, Oneida, Onondaga Counties, and CPS workers and attorneys from those counties, too.

They were "collaborating".  Ex parte. 

NYS OCFS denied me access to the "training video" at that "training/collaborating session" because allegedly it contained "sufficient detail with respect to one family/child to enable identification and disclosure of the identity of family/child".

SSL 372, the basis of the denial, prohibits access to identifiable information about the child not only to members of the public seeking such information in a FOIL request (I actually did not seek identifiable information about any children, just a video that was shown to 242 people by OCFS), but to anybody who is not authorized to have access to that information from a particular case, and only in some cases, outlined by that statute, such access is allowed, but with additional safeguards.

For example, SSL 372(4-b) allows release of personal identifiable information about the child to a "good faith researcher" - whatever that is - but with a specific approval from OCFS.

If a "training company" producing such a video even qualifies as a "good faith researcher", still there should be a document from OCFS granting approval of their access to confidential information that OCFS acknowledges the video contained - by denying me my FOIL request on that ground.

Moreover, if a CPS or a court attorney or a judge, or a private attorney, have access to a court case, they only have access to a CPS case assigned to that judge, or where that particular CPS agency is a party and where the particular private attorney represents a party.

That is not the case where 242 people, including judges, law clerks, CPS workers and attorneys, private attorneys from across the State of New York, from the Canadian border to New York City, watch the video with identifiable confidential information from ONE case and from ONE location.

Even the judge from the particular Family court which handled that particular case is not allowed to watch that video if that video was not submitted in court, that would be becoming privy to extrajudicial evidence, which is judicial misconduct.

Moreover, a judge may not be present and condone dissemination of private information from the case the judge handles to 241 other people who have no authority under existing laws - SSL 327, SSL 415 and 422, among them - to have access to such confidential information.

I also noted that NYS OCFS, in their effort to duck and further stall my FOIL request, shot themselves in the foot by stating to me that, even though they showed to 242 people video admittedly containing confidential information about a "family/child", do not have lists of members of such "collaborative teams" - in other words, OCFS shows confidential information to people without verifying whether they even belong to any identifiable "groups" that may even begin to claim authority to access that information.

And such recklessness with confidential information by NYS OCFS is a grave concern.

With that in mind, I filed a new FOIL request with NYS OCFS:

Meanwhile, litigants whose CPS cases were handled by New York State Family Courts before November 18, 2014 should be aware that their information may have been used, without their knowledge or consent, to create and then show a video to 242 people that I know of, and could be disseminated further, without any tracking or safeguards.

Litigants are also welcome to review the list of 242 attendees that I published, and see whether "their" judge, law clerk, CPS worker, or CPS attorney were at that not so little "get together", with a potential of fixing cases behind people's backs.

People who had findings of child neglect after this November 18, 2014 meeting by the attendee judges have a legitimate claim that their cases were fixed at the get-together.

I will certainly publish the answer of NYS OCFS to this FOIL request.

Stay tuned.