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Mentally retarded adults die and are never even autopsied. What happened? Can’t say—confidentiality laws dictate that how they lived and died remain secret.
A group of cops terrorize a neighborhood and rack up complaint after complaint. How many complaints and what for? Can’t say—personnel matters are legally behind the veil.
A toddler gets returned to an abusive mother and dies by blunt-force trauma. Why did the court send her back? None of your beeswax—her fate and how she met it are private matters.
Why is it that confidentiality requirements always seem big enough to cover the rear ends of public officials, but too small to protect the people they were constructed to defend? In theory, confidentiality laws are hard to dislike. Designed to keep people’s custody battles, health, and career decisions private, they’re why strangers can’t
find out about a foster child’s school problems, a city ward’s HIV status, or a beat cop’s promotion prospects. But that isn’t all confidentiality
Brianna Blackmond died Jan. 6, a few weeks after she was returned to the care of her mother by D.C. Superior Court Judge Evelyn E.C. Queen. In the Washington Post coverage that followed, her body was tossed around like a beanbag, with involved parties trying to avoid getting blood on them while passing the child off as somebody else’s problem. Five days later, Queen called an emergency closed-door hearing. There was plenty to talk about: Why hadn’t the lawyer, Brianna’s legal guardian, seen the child for months? Why did the lawyer agree, two days before Christmas, to send Brianna back to a mother he had recently argued was unfit? What of reports that D.C.’s Child and Family Services OK’d the move? Where was the private placement agency that was supposed to be looking after Brianna? Why did Queen herself reunite mother and child without so much as a hearing?
None of those questions, however, were on Queen’s mind. Instead, the emergency was about…confidentiality. She strapped a gag on all of the parties in the matter, reminding them of confidentiality provisions—all in the name of looking after the privacy rights of a kid who was being prepped for burial.
All the people involved are, as a matter of law, supposed to keep their traps shut. Section 16-2332 of the D.C. Code says, “Juvenile social records shall be kept confidential and shall not be open to inspection” except in certain cases, none of which include a reporter in search of the facts. Specifically, “No person receiving any record or information pursuant to this section may publish or use it for any purpose other than that for which it is received without a special order of the court.” Violations are punishable by a fine of $250 or a sentence of 90 days, or both.
That we know all this shows that nobody takes Section 16-2332 seriously. Post reporter Sari Horwitz talked to several allegedly gagged people who were at the hearing. She obtained an interview with Brianna’s bereft—and supposedly secret—foster parents. She dug out an internal agency report detailing the wretched conditions Charrisise Blackmond’s eight children were living in when they were removed back in June 1998. She even saw an agency report that the judge did not see before sending Brianna back home, a document that suggested that the child did not belong anywhere near her mother. And she had reports about other children in the family who had been placed in different foster homes. So much for
Horwitz wasn’t supposed to know any of the things she reported. But when consequences are in the air—and, to be fair, when a cute baby is on Page One of the Post—allegedly gagged parties say as much as they need to keep responsibility off their desks. Public officials stonewalled on the record and backstabbed once they were off. The reporting reflected the lack of hard data—after more than a dozen stories, readers still don’t know who exactly is to blame.
So, while the Post may be performing a civic good, Horwitz and everybody who fed her info are in violation of the law. But don’t look for D.C.’s corporation counsel to start up the witch hunt anytime soon. In fact, the office is a little too busy trying to explain why one of its attorneys charged with tracking the case didn’t read Queen’s order returning Brianna to her mother until after the child was dead.
Horwitz isn’t exactly waiting to be dragged off in cuffs. And she has no qualms about having reported everything she found, secret or not. “When a child dies who should have been protected by the city, people deserve to know what happened,” she says in a phone interview. “This is not just a case about the tragic death of a child. This is about a system that is broken, and I think that by putting a face on it, we can go part way toward unraveling the mystery of what went wrong.”
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To untangle that mystery, she had to walk all over the alleged privacy rights of a dead kid. And she admits there may be collateral damage to that child’s surviving siblings. “I think this is a really difficult case, because it involves other children. When you are working in abuse and neglect cases, it is important to have confidentiality—you are dealing with very delicate private matters with regard to the family. But this is different—a child died, and there is a virtue in knowing how the system let her down,” says Horwitz.
Since she has had the attention of her editors, Horwitz has taken the Brianna episode as an opportunity to drill into systemic issues—reporting that Child and Family Services social workers routinely violate a law that requires the agency to submit a report on the status of a foster child 10 days before any hearing involving the child’s fate. But she has not been able to determine why Queen never received a report about Brianna because court records are, well, you know the story. (Queen, by the way, recused herself from further hearings on the case on Tuesday.)
In a Post story about Queen last week by Scott Higham, Higham was able to report that she had been overturned more than any other judge who has served with her. But surveys of the D.C. Bar Association and complaints filed before the D.C. Commission on Judicial Disabilities and Tenure are not public, unlike Queen’s $141,300 salary.
Post reporter Katherine Boo confronted an even more resistant closed bureaucracy last year when she attempted to find out what had happened to the 116 mentally retarded adults who died while they were wards of the city. The documents she received in response to her Freedom of Information Act requests were so heavily edited that they made the CIA’s Pinochet files seem comprehensible by comparison. “They used the guise of client privacy to redact the names of corporations who got paid to look after these people, the names of doctors who made a great deal of money off of them, and the city officials who were involved in their cases. The city very clearly used confidentiality laws to stop the line of inquiry,” Boo says.
“In cities like Chicago, where you have a very active advocacy, there is somebody within the system who can synthesize information and exercise some oversight while looking after the individual’s right to privacy. But in the District, as in the case of Brianna, there is no such beast,” says Boo.
The Washington City Paper has also faced confidentiality covenants in its efforts to investigate police misconduct. This January, City Paper reporter Jason Cherkis ran into a brick wall while investigating police misconduct. A group of four D.C. cops had amassed 49 complaints between them. But personnel laws forbid releasing information about the officers’ alleged brutality. In spite of Mayor Anthony A. Williams’ rhetorical commitment to transparency, police misconduct is not an open matter, because the cases are investigated internally.
Reporters everywhere like to harp on their lack of access to data. Nowhere do they have a better case than in the District, one of the most hostile city beats in the country. But even if enterprising reporters like Boo and Horwitz work around an uncooperative, self-protecting government, it’s a long way from the kind of accountability that would allow the citizenry to spot and complain about mis- and malfeasance as they happen.
As it is, the whims of reporters drive the process. Before Brianna rolled onto the front page, it had been years since the death of a child under D.C. government control had received major play. The New York Times and the Chicago Tribune often run such cases on their front pages, but the Post has mostly contented itself with small updates when something went wrong in the system and a kid ended up dead. Brianna, after all, is nowhere near the first.
“The Washington Post has paid scant attention to the family division for decades, and to see them swoop in like they have right now is a little underwhelming. I would have liked to see the Post cover the explosion in abuse and neglect cases over the past two decades, or the fact that [Department of Human Services] social workers from five different sites are being centralized in a very chaotic and confusing way, but you don’t read a syllable about that in the Post,” says Kenneth Rosenau, an attorney who works in family law and litigation.
Ditto for mentally retarded adults. Boo’s enterprise may have yielded a whopper, but the fact that there were so many bodies to be dug up in the first place suggests that the newspaper, along with the city, had ignored significant evidence for years that something was fundamentally amiss in the effort to privatize care for vulnerable adults. And a red alert on Page One doesn’t always lead to
systemic change in the long run—or even good decisions in the short run.
“A story in the Post is not the only thing the public needs. It isn’t really the only place that discussion should be taking place,” says Judith Meltzer, the court-appointed monitor of the receiver for Child and Family Services. “It doesn’t help to have all those innuendoes out there. [Since the Brianna stories] have been running, there has been a huge increase in the number of kids who have been placed in foster care, and that’s a pretty typical consequence. That isn’t necessarily a good thing.”
Still, “the problem is that when there is something like a death, these agencies tend to use confidentiality statures to keep information from the public. It seems to me that after a child has died, whose interest are you protecting by keeping the information private?” asks Meltzer.
The D.C. Council, with the support of Mayor Williams, has tentatively approved a measure that would remove confidentiality requirements if a child in foster care were killed or critically injured. “Public officials have gone overboard in protecting culpable adults rather than trying to improve the lives of the kids,” says Ward 3 Councilmember Kathy Patterson.
The mayor, who spent time in a foster home as a child, said at a press conference that aspects of the case left him “gagging.” In doing so, he ignored the gag that Queen had placed on the case. It’s an odd fact that in speaking out on an issue of civic moment, the mayor is technically risking contempt of court. According to mayoral spokesperson Peggy Armstrong, the mayor believed he was respecting the court order by not commenting on the specifics of the case, but rather its broader implications.
Tom Wells, executive director of the Consortium for Child Welfare, says that the rubric of confidentiality continues to cover a multitude of sins. “It’s like a gas that fills up any room,” says Wells. “There is a value in confidentiality in giving some measure of security to the families that we serve, but over time, most social workers seem to have forgotten that it is a right of the people that they serve and not a right that the professional can hide behind.” —David Carr
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