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A federal magistrate judge has given the public and the media a new tool to pry loose discovery material kept under wraps by protective orders. U.S. Magistrate Judge John Hughes, ruling in a class action suit by abused children against New Jersey’s Division of Youth and Family Services, found that third-party intervenors — The New York Times and The Star-Ledger of Newark — had demonstrated a public interest that overcame the protective order and a statute barring the documents’ release. The decision, Charlie and Nadine H. v. Whitman, 99-3678, also sweeps away privacy claims made under state law, declaring them nonbinding even for DYFS, an agency that has enjoyed a tight shroud of confidentiality around itself and its clients. “[The defendants] need to do more than assert nonbinding state confidentiality statutes to support their contention that release of case records may compromise the privacy interests,” Hughes wrote. The upshot of the March 20 ruling is that when the state enters litigation in federal court, the public will have potential access to a wider universe of documents, regardless of exemptions in the Open Public Records Act or individual regulations that would otherwise keep them secret. Such a ruling has never been issued in the New Jersey district, says The Times‘ lawyer, Bruce Rosen of McCusker, Anselmi, Rosen, Carvelli & Walsh in Chatham, N.J. “I seriously doubt that the [Government Records Council] or a [state] judge would ever agree that DYFS records can be redacted and turned over.” Hughes’ opinion came just before the sexual assault and death last Wednesday of a 3-year-old boy, allegedly at the hands of a 10-year-old Woodbridge, N.J., child who was one of DYFS’ clients. Information about the boy could well fall within the scope of the information that Hughes has ordered released. The Woodbridge case comes two months after the discovery of the body of Faheem Williams, a Newark, N.J., boy found near his two brothers who were locked in a filthy basement. Faheem’s plight was brought to the attention of DYFS, but the agency failed to find the boy before he died. The case before Hughes was filed before the discovery of Faheem’s body. The plaintiffs are represented by Children’s Rights Inc., a welfare policy organization in New York and various lawyers from Lowenstein Sandler in Roseland, N.J. The named plaintiffs are children who were tortured, raped, beaten or abandoned by their parents or guardians. The complaint says the agency did little to help the children, and in one case left three kids in the care of a convicted child molester. The plaintiffs are seeking injunctive relief that would force DYFS to conduct more thorough investigations of child abuse allegations. “The topics we’re addressing are hand-in-hand with the Faheem Williams case,” says Patrick Whalen, counsel at Lowenstein. After Williams’ death made front-page news, reporters from The Times approached Children’s Rights, seeking a trove of DYFS reports produced in discovery. The reports covered all child deaths, “critical incidents” and Institutional Abuse Investigation Unit reports. The reports name the children at issue, along with a good deal of disturbing family information. As DYFS cares for thousands of children, Hughes called the request “breathtaking in scope.” “They were seeking what must have been hundreds of thousands of documents, if not even more,” says Stefanie Brand, deputy attorney general in charge of litigation, for DYFS. Children’s Rights, however, was already subject to a protective order on the material that prevented it from disclosing the material. So The Times, with The Star-Ledger, filed a motion to intervene. They argued that privacy worries could be allayed if the reports were redacted before release. DYFS countered that state statutes and the administrative code do not recognize the public’s right to know about the intimate horrors visited upon the state’s most vulnerable children, and that certain laws, such as N.J.S.A. 9:6-8.10(a), forbid release of such records to individuals not investigating child abuse. Ultimately, about 3,200 pages will be released, according to Brand, who stressed that Hughes restricted his ruling to a much narrower category of documents than the mountain initially sought. The documents will be redacted before the newspapers receive them to hide the children’s identities. A second intervenor-friendly aspect of Hughes’ ruling is that it is not dependent on the parties’ consent, notes Marcia Robinson Lowry, executive director of Children’s Rights: “Since we wanted to release the reports and that was not sufficient, presumably if we didn’t want to release it that also wouldn’t be sufficient.” Lowry had supported the intervenors’ motion in hopes that the publicity generated by The Times‘ investigation would force DYFS to reform itself more quickly. Brand says she was troubled by Hughes’ emphasis on the primacy of federal law. “I do hope the state regulations and statutes are taken very seriously … I would be concerned if as a result they were not closely scrutinized on a case-by-case basis.” Brand also notes that the judge had essentially placed DYFS in a lose-lose situation: The state had adopted the confidentiality rules to comply with federal law, she says, and now a federal court had found them nonbinding. DYFS will cooperate with the ruling rather than appeal, Brand says. Assisting Brand was Alan Kessler, a partner at Wolf, Block, Schorr and Solis-Cohen in Cherry Hill, N.J. He did not return a call seeking comment.

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