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From Los Angeles Times

L.A. County refuses to yield youth records

The Board of Supervisors defies a subpoena for records involving the deaths of children being supervised by the troubled Department of Children and Family Services.

by Garrett Therolf, Los Angeles Times

August 1, 2011

Despite a warning from California's state auditor that they were committing a crime, Los Angeles County supervisors defied a subpoena for records involving the deaths of children who had been under the supervision of the troubled Department of Children and Family Services.

The inquiry was launched by the Legislature earlier this year after reports in The Times that more than 70 children had died since 2008 of abuse or neglect after coming to the attention of county social workers. Many of those deaths, county officials have confirmed, involved serious case management errors.

The audit is intended to be the most comprehensive probe in years seeking to identify whether systemic flaws contributed to fatalities in Los Angeles and other counties across the state. Lawmakers said it probably would result in legal reforms.

A lawyer at a special firm hired by the county to handle the matter said officials had provided dozens of boxes of records and allowed auditors to interview social workers but would not turn over documents that they believe are shielded by attorney-client privilege.

"In addition to the county's established right to protect its communications with its attorneys, the county seeks to preserve its ability to candidly evaluate its child protective services, and opportunities to improve those services, to further protect the children under the county's care," attorney Daniel P. Barer wrote in a response to questions from The Times.

The three other counties subject to the probe — Alameda, Fresno and Sacramento — have complied with similar subpoenas, but auditors said they were confronted by "only stalling tactics and unyielding refusal" in Los Angeles, according to records obtained by The Times.

As a result, state officials said they would be forced to issue an audit that addresses only the three other counties while they fight for access in Los Angeles.

"But make no mistake, we will not relent in accomplishing our mission of performing the audit that we were directed to perform by the Legislature," wrote Sharon Reilly, chief legal counsel for state auditor Elaine Howle, noting that her office now intends to investigate Los Angeles even more deeply and broadly. In order to do so, the state withdrew the subpoena for Los Angeles County documents in early July and is crafting a new one.

Assemblyman Henry Perea (D-Fresno), the lawmaker who first proposed the audit, said the state would take Los Angeles County to court to enforce its subpoena, and he expressed regret that the county had forced officials into a confrontation.

"This is not just about holding the county folks accountable. It's also the state," Perea said. "What role and responsibility do we play? Are we giving the counties the resources they need? We are looking at everyone. No one is getting off the hook."

The state and federal government fund 70% of the county's foster care system, and both entities are mandated to independently review and improve its operations. The county has suggested that the state give it control over significant decisions in the audit process. Reilly said that would "eviscerate the bureau's independence and potentially jeopardize billions of dollars in federal funding."

The county already reviews many child fatality cases in search of case management flaws, but the state audit seeks to add an independent voice and take a broader look at the shared state and county responsibility to license and oversee foster parents.

Los Angeles County officials have chafed especially at state officials' wishes to review reports written by the Children's Special Investigations Unit, a small team of lawyers who review child fatality cases and report directly to the Board of Supervisors.

"The county asserts that these reports are subject to the attorney work product/attorney client privilege," Reilly wrote. "My long-standing interpretation of the plain language of our governing statutes has been that my staff has the same … access possessed by any officer or employee of the auditee."

The state is also seeking internal affairs documents and other reports by Department of Children and Family Services officials. Those records are not written by lawyers, yet the county is also asserting attorney-client privilege for them because they were often reviewed by county lawyers.

County attorneys have privately told supervisors that a judge is not likely to agree that the documents can be withheld, according to two sources familiar with the deliberations. A majority of the board nevertheless urged lawyers to fight the disclosure because of fears that the material could be used in lawsuits accusing the county of failing to provide proper child welfare services.

Supervisor Zev Yaroslavsky said he had hoped the state and county could work out a compromise and had been disappointed by the interactions so far. "The attorney-client privilege is sacrosanct," he said, "but not every confidential document the state auditors wanted was necessarily privileged."

"Both sides took an all-or-nothing legal position. That was regrettable," he said, "because the documents would show how extensively the county investigates to ascertain the circumstances surrounding a child's death, and how to be more proactive in preventing such deaths in the future."

Supervisors Michael D. Antonovich, Don Knabe, Gloria Molina and Mark Ridley-Thomas did not respond to repeated requests for comment.

But aides to the supervisors said the elected leaders worried that auditors might publish all or some of the otherwise confidential documents in their resulting public report.

In communications with county officials, Reilly said that would not be a problem.

"In the course of our ongoing discussions, we have advised repeatedly that, just as it is a misdemeanor for county employees to refuse the bureau access to confidential information, it is a misdemeanor for any bureau employee to release it," Reilly said.

Reilly also accused the county of attempting to erode political support for the audit by contacting state lawmakers and mischaracterizing the auditor's efforts to obtain information. "Such conduct obviously undermines any good-faith meet-and-confer process," she said.

Los Angeles County has been repeatedly criticized in recent years for violating state law requiring it to release information regarding child fatality cases so that problems can be identified and remedied.

Under a law that went into effect in 2008, the department is required to release records to the press and other members of the public when a child dies after passing through the child welfare system. The county generally complied with the law initially, but after news reports about social worker error appeared in The Times, the release of records slowed.

In 2010, the county's Office of Independent Review found that child welfare officials asked law enforcement agencies if they had objections to the release of documents without giving them the chance to first review the records. The effect has been blanket objections to disclosure that resulted in "a virtual paralysis of the statute's intent," according to a report by the office's lead attorney, Michael Gennaco.

http://www.latimes.com/news/local/la-me-child-welfare-audit-20110801,0,2637695,print.story

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Health officials, speak up

Some health officials have been slow to release information on various diseases, but now new guidelines are in place.

by Felice J. Freyer and Charles Ornstein

August 1, 2011

An outbreak of food-borne E. coli infections have killed at least 50 people in Europe this year and sickened thousands of others. An aggressive and sometimes fatal fungus spread in the Missouri region hit by a half-mile-wide tornado. A virulent new strain of H1N1 flu emerged in Mexico in 2009, ultimately infecting people around the world.

New or mysterious illnesses like these can be terrifying, especially when reliable information is scarce. In the absence of facts, people don't know who is at greatest risk and how to protect themselves. Yet some health officials are slow to release information, concerned that it could cause needless worry or identify victims.

Policies about releasing information vary widely from agency to agency. During the swine flu pandemic, the disparate responses of health officials around the country were confusing and maybe even harmful. Some states, such as Delaware, regularly released many details about people who died of the illness. But when a child died in North Carolina, that's all that officials would reveal: a child died of H1N1 somewhere in North Carolina.

In a public health emergency, journalists want details about when, where and how a death occurred to make their stories more complete and satisfy the public's curiosity. But much more is at stake: Releasing accurate information reassures the public that officials are being honest about what they know and what the risks are.

One of us covered a story for the Los Angeles Times in 2002 in which Los Angeles County health officials didn't tell the public about an outbreak of Legionnaire's disease at Good Samaritan Hospital near downtown. Even survivors of two patients who died said they weren't told about the infections.

The incident prompted sharp words from members of the Los Angeles County Board of Supervisors at the time. "There has been a culture in the health department that they know better than the public," said Supervisor Zev Yaroslavsky, "that the public is just a bunch of boobs that aren't equipped to handle bad news."

Supervisor Mike Antonovich observed: "Keeping the outbreak from the public, the department raises suspicions of a coverup."

Earlier this year, officials in Arkansas hid behind privacy laws when the flu claimed its first death. According to the Arkansas Democrat-Gazette, a spokesman for the state health department said that "he couldn't reveal the county where the flu victim lived, what flu strain was responsible, whether the victim had been vaccinated for the particular strain contracted — or inoculated for flu at all." He cited federal patient privacy laws.

How is the public supposed to be reassured by this? Residents of Arkansas were left to wonder whether the flu victim lived near them, whether this was some new and virulent strain, and even whether the flu vaccine was working.

As board members of the Assn. of Health Care Journalists, we have been troubled by the way some health officials cite privacy laws as the reason for withholding information that, by law, doesn't have to be private.

Are state privacy laws really so different that officials in Delaware can provide more details than their counterparts in North Carolina or Arkansas? Not really. Instead, many officials play it safe, withholding much more information than is necessary to protect privacy.

Such cautiousness creates hazards of its own. Rumors and misinformation fill the void when health officials stay mum, sometimes sparking unfounded fears.

Decisions on what information to release can make or break the public's trust in health authorities, at a time when trust is critical if people are to follow public health advice.

Our organization of healthcare journalists wanted to come up with a solution that would both keep the public informed and respect patient privacy. So we teamed up with the Assn. of State and Territorial Health Officials and the National Assn. of County and City Health Officials to develop some recommendations. To their credit, health officials were eager to work with us and professed a commitment to openness.

The end result was a set of voluntary guidelines affirming that health officials should withhold information only where there is a clearly justified reason to do so.

The guidance also calls on journalists to do their part: Learn the broader context of an incident, seek an explanation when public health officials say they cannot answer all the questions, and respect individuals' desire for privacy. We make no excuses for journalists who report rumor rather than fact, crash funerals where they are not wanted or continue to call grieving relatives who have said they don't wish to talk.

There will be another public health emergency — a different type of flu, perhaps, or an illness no one even knows about today. But next time, with this new guidance in hand, health officials across the country will be better equipped to balance privacy concerns with the public's need to know what is happening in their communities.

Felice J. Freyer is the medical writer at the Providence Journal and chair of the Right to Know Committee of the Assn. of Health Care Journalists. Charles Ornstein, a former Times reporter, is a senior reporter at ProPublica and board president of AHCJ. The "Guidance on the release of information concerning deaths, epidemics or emerging diseases" can be found online at http://www.healthjournalism.org

http://www.latimes.com/news/opinion/commentary/la-oe-ornstein-health-information-20110801,0,2187848,print.story

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