The court is presented with the issue of whether an attorney of record for a set of parties may inspect the court records wherein the parties were charged with neglect of their child when he was not the attorney in such proceeding. The neglect charge in such case was dismissed. The stated purpose of such inspection is to obtain evidence in an action against a doctor who was a witness in such neglect proceedings in the Family Court.
The records of any proceeding in the family court shall not be open to indiscriminate public inspection. However, the court in its discretion in any case may permit the inspection of any papers or records.
Apparently, proper request for discriminating public inspection cannot be refused, since the Court is not specifically given discretion in regard to them but, rather is given broader discretion in any case to permit the inspection of any paper or records … Some of the factors to be considered in determining the propriety of a request undoubtedly include the person or official making the request, the purpose for which the information is needed, and the possibility that the information once obtained, might be improperly used or disclosed.
The stated purpose of examination of the records in this case is for a legitimate legal reason; i.e., the pursuit of a legal remedy in another court of this State. The person making such request is a member of the Bar who will not indiscriminately cause such records to be disseminated to the public. The attorney already has knowledge that the doctor was involved in this Family Court proceeding and the attorney is not attempting to discredit an unknown doctor. The doctor’s identity is already known to the attorney who is simply seeking the Family Court records for proper discovery preparatory to litigation.
The Family Court Act Section 1043 states that: The general public may be excluded from any hearing under this article and only such persons and the representatives of authorized agencies admitted thereto as have an interest in the case.
The obvious intent of this section is to safeguard the privacy of parents and children involved in child protective proceedings.
It is from these two sections, Sec. 166 and Sec. 1043, that the limited confidentiality and limited privacy of Family Court proceedings emanate. But it must be kept in mind that this is not blanket confidentiality and privacy, but rather one that is discretionary in every case. It is for the court to determine when and under what circumstances confidentiality and privacy shall or shall not be preserved. This discretion is for the judge on a case-by-case basis determined by the purpose and use of such confidentiality and privacy in that particular case.
As stated, a primary purpose of the confidentiality and privacy of Family Court records and proceedings is to encourage the resolution of problems of the family through legal means. In a neglect case our primary concern is the welfare of the children alleged to be neglected.
Therefore, the overriding concern in the confidentiality of a neglect case is concern for the best interests of the child and his family. This confidentiality, however, should serve as a shield for the child and his parents, and not as a sword to prevent the child from obtaining legal redress in another court of this state.
The respondent argues that if confidentiality and privacy did not attach, it would discourage the appearance of witnesses in neglect and abuse proceedings, and clearly frustrate the purpose of same, and work against the interest of abused children. This argument, however, is questionable. Clearly, in a civil case, the physician-patient privilege would not prevent the doctor from testifying. The privilege is owned by the patient, and the power to waive the privilege is vested in him. CPLR Sec. 4504(a).
Furthermore, if the doctor were subpoenaed as a witness in a civil case, he would be required to testify pursuant to CPLR Sec. 4501 which states that: A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact that he owes a debt or is otherwise subject to a civil suit.
Therefore, if questions tending to establish malpractice were asked of a doctor in Supreme Court, he would be required to answer such. Thus, the respondent’s argument that doctors would not testify at neglect hearings if such proceedings were not confidential, is contrary to the realities of the law.
The petitioner and the respondent in a Family Court proceeding and their attorneys, and, when a child is either a party to, or its custody may be affected by the proceedings, the parents or persons legally responsible for the care of that child, the law guardian or attorney for that child, an authorized representative of a child protective agency or of the probation service, and an agency to which custody of the child has been committed by an order of the Family Court shall have access to the pleadings, any legal papers formally filed in the proceeding, the findings, the decisions and the orders, and, subject to the provisions of CPLR 8002, the transcribed minutes of any hearing held in the proceeding.
Thus, under this section of the Rules, the parties and their attorneys are permitted to have access to the minutes of the hearing upon proper payment to the stenographer (CPLR 8002). While Section 166 of the Family Court Act says that inspection must be discriminate, Rule 2501.3a of the Family Court is specific in declaring that the parties and their attorneys would be among those who shall be permitted to see such records and transcribed minutes.
Coming up with the decision of filing a divorce should be assisted by a lawyer who can evaluate as to the proper remedy. Contact Stephen Bilkis and Associates for advice and a free consultation.