In an article by Jason Hirsch of the AP News, Concord Bureau on June 6, 1999, Hirsch quoted Rogers Lang, Esq., head counsel for the Division of Children, Youth, and Families, as saying that the Division hangs on to "unfounded complaints" via the "Central Registry" for three years, and that Attorney Lang "insists that such records are used only to evaluate subsequent allegations. "If you keep getting calls," he said, "you look at the pattern.'"
To the extent that Rogers Lang represented to Mr. Hirsch that the Division only keeps their old child abuse records around for three years, he lied. The reality is that the Registry is used for outside inquiries, those for child care providers, etc. The internal, computerized NH BRIDGES database is what the Division investigative workers use to research old allegations of child abuse in their case work. With that database, they can not only look at old allegations, they have complete access to caseworker notes, all contacts in the case, the child's health care history (it is the same database that pays Medicaid claims in New Hampshire), psychological history (probably complete with diagnosis codes), school enrollment, special education codes, and day care providers. In most instances, they can find a child in moments, and be at the school or day care to interview the child without asking one single question of the parent. They can even access parent's name if a stranger goes by the house and only give an address, if they have an old allegation. This is what the Division means when they tell the legislature that their computer program helps them "serve their client base" more efficiently.
More frightening, the Division has "no policy regarding destruction of records that is specific to BRIDGES."
| from a letter of Nancy Rollins to Paula Werme, August 9, 1999, in response to a Right-to-Know request. |
The question of whether or not the "Central Registry" should be done away with is really moot. The Division doesn't care one whit if the Central Registry burns down tomorrow. With the NH BRIDGES database, they could reconstruct it very quickly, and there is no evidence they have ever deleted a computerized record from the database. They have deleted paper records that backed up the reason they closed a case as unfounded, and then turned over the exact wording of the unfounded allegations to a court in the past. Keep in mind that for this type of conduct, they are absolutely immune, as it is done after a case is filed. Their lies, after the filing of a petition are totally immune under present law from civil consequences.
The computerized records, including those in the NH BRIDGES database, have been an issue in court cases, though unstated in some cases. Often, all the Division has to do is tell the judge that they "have concerns" regarding a parent, and the judge will deny a parent their rightful custody. They don't even have to disclose what part of the database the information came from, or what their "concerns" are. It results in a total denial of due process for some parents. Often on the flimsiest charges, parents lose custody of their children, and unless you know about what kind of information is in the database, you may never know where the Division got their "concerns."
Government keeping these types of records on its citizens is a very scary thing. It's hard to believe in the "Live Free or Die" state that the government has this much information on any citizen available with the click of a button. It's time to put a time limit on record deletion, and make sure that the Division complies with the law. The only thing that will assure that they comply is civil liability for failure to do so.
In October of 1998, in a case entitled petition of James J. Preisendorfer, the NH Supreme Court stated that "due process requires that the preponderance of the evidence standard apply in any hearing to determine whether an individual's name should be added to the central registry, RSA 169-C:35, where that individual would be excluded from working in his or her profession due to that listing, RSA 170-E:7, IV."
"[I]n the absence of full briefing and argument by the parties, In re Tracy M., 137 N.H. at 122-23, 624 A.2d at 965, we decline to address the State's argument that the use of a probable cause standard was harmless error."
The legal community, and all news media in the state reported to the public that the standard for placement on the Central Registry was now "preponderance of the evidence" instead of the much lower "probable cause" standard that was in use by the Division. The Division interpreted the case to mean that only where a person was already employed in a field where his job was in jeopardy that they would use the higher "preponderance" standard. This means that the state now violates equal protection by using two different standards for placement on the Central registry, depending on a person's occupation at the time of the determination.
Contact Paula Werme, Esq. or return to Law Practice home page.
Last updated 1999 September 4.