Ulster County Dept. of Social Services on Behalf of Jane, Matter of
| Decision Date | 23 August 1993 |
| Citation | 163 Misc.2d 373,621 N.Y.S.2d 428 |
| Parties | Matter of ULSTER COUNTY DEPARTMENT OF SOCIAL SERVICES on Behalf of JANE, a Child under Eighteen Years of Age, Alleged to be Neglected by Leslie B., Respondent. |
| Court | New York Family Court |
Frank Spada, Dept. of Social Services by Leanora Kovacs, Clinton Corners, for petitioner, Dept. of Social Services.
Paul L. Gruner, Public Defender by Beth Capen, Asst. Public Defender, for respondent, Leslie B.
Jacqueline Olivet, Law Guardian.
Jim Gordon, a reporter from the weekly newspaper The Woodstock Times, seeks to observe the remainder of the trial of Leslie B, a mother alleged to have neglected her daughter, Jane (names of all parties and family members have been changed and the decision edited for publication).
The court has heard oral argument with Mr. Gordon present in court on whether or not Mr. Gordon should be excluded from the trial. Both the law guardian and counsel for the Department of Social Services (hereinafter DSS) argued that the underlying allegations and facts could be easily sensationalized, causing emotional trauma to thirteen-year-old Jane. When the law guardian spoke Ms. B's attorney had first learned the morning of oral argument that Ms. B had turned over to Mr. Gordon 191 pages of transcripts covering the first two days of trial. Upon learning that Ms. B's attorney had given the transcripts to her client, who had in turn given them to Mr. Gordon, both the law guardian and DSS counsel were outraged that the privacy and confidentiality of Family Court proceedings had been invaded without permission or even the knowledge of the court, DSS or the law guardian. DSS counsel argued that Ms. B had violated some statute or ethical constraint. Neither attorney cited any law or regulation that had been violated. The court adjourned the argument for three hours to permit counsel to research the issue of the release of the transcripts to the press.
with Jane, the child was very upset at the prospect of press coverage and asked her law guardian to strenuously oppose it, which she did. Gary E., Jane's father, who is not named as a respondent in the neglect proceeding and who is seeking custody of Jane, also opposed press coverage. Counsel for Ms. B argued in support of her client's right to have the press present
When the case was recalled, the law guardian urged the court to order Mr. Gordon to turn over all transcripts in his possession to the court, direct Mr. Gordon to not print any information obtained from these transcripts, direct Ms. B not to furnish Mr. Gordon with any further transcripts, exclude Mr. Gordon from the remainder of the trial, and prohibit Mr. Gordon from reporting on the trial. The DSS attorney joined in the law guardian's applications and also asked the court to direct Ms. B not to share any of the pleadings which she might possess with the press. Cited in support of this request were Family Court Act §§ 166 ("Privacy of Records") and 1043 ("Hearing not Open to the Public"), and 22 NYCRR § 205.4 ("Access to Family Court Proceedings") and § 205.5 ("Privacy of Family Court Records").
Ms. B's attorney pointed out that 22 NYCRR § 205.5 permits adult respondents to have access to transcripts of Family Court proceedings and does not prohibit their further dissemination by respondents. Mr. Gordon said that his primary interest in this case was in the procedures of the Family Court rather than in the facts since between the transcripts and his discussions with Ms. B he had a fairly clear picture of the dispute. He indicated he would try to avoid using the child's name in his story and did not wish to sensationalize the allegations. He expected his newspaper to publish a story on Ms. B, her daughter and the neglect case, whether or not he was permitted to attend the balance of the trial.
Ms. B is a party to this proceeding. She is, for the purposes of FCA § 166, not part of the public. FCA § 166's prohibition against indiscriminate public viewing of Family Court records does not apply to her. Had Mr. Gordon sought access to court records directly from the court, he would have had to apply under this statute. Ms. B as an adult respondent is entitled to access to all pleadings, filings, findings, decisions, orders, and transcripts under 22 NYCRR § 205.5. No statutory restriction, regulation or requirement in case law exists restricting the persons with whom she can share the transcript and pleadings.
New York State law contemplates at least three types of court records: public records open to inspection by anyone; sealed records (e.g. adoption records and records sealed by specific court order such as Lincoln interview transcripts [see, Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 (1969) ], which require a specific court order before anyone can see them; and private or confidential records to which certain classes of individuals such as the parties and their attorneys have access without court order. Records of the Family Court come under the second and third category. The records at issue in this proceeding are of the third type: confidential but not sealed either by statute or by court order. No request has been made by any attorney to seal them.
The three access cases cited by the law guardian interpret the rules of the trial court and Family Court Act on the privacy of Family Court records. Matter of the Guardianship of Herbert Clueso, 146 Misc.2d 861, 552 N.Y.S.2d 822 (Fam.Ct.N.Y.Co.1990); DSS o/b/o Gregory Land v. Blaine Land, 110 Misc.2d 665, 443 N.Y.S.2d 351 (Fam.Ct.Nassau Co.1981); In the Matter of J. Children, 101 Misc.2d 479, 421 N.Y.S.2d 308 (Fam.Ct.Kings Co.1979). These decisions acknowledge the right of parties to have access to their own Family Court records.
The statutes and cases cited by DSS and the law guardian deal with the persons to whom the court may release its records, not to whom a party entitled to access may further release the records. In the absence of specific statute or court order, the adult respondent may re-release court records legitimately obtained. The application for an order directing Mr. Gordon to surrender the transcripts to the court is denied as is the application that the court restrain Ms. B from disseminating any transcripts or pleadings in this case.
DSS counsel and the law guardian have asked this court to restrain publication of information received from a source not prohibited from disclosing it. The United States Supreme Court has stated that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity", Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963), citing Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). That principle was strongly reiterated in New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the "Pentagon Papers case."
Counsel does not argue that Ms. B should or could be prevented from discussing the prior court proceedings or her version of the facts of this case. Counsel is not requesting that The Woodstock Times be barred from printing a story about Ms. B's experience with Rockland Children's Psychiatric Center, Ulster County Child Protective Services and the Family Court. Counsel ask that the press be banned from using the transcripts because counsel claim they were improperly provided to the newspaper. This court holds that they were not. Counsel also claim that publicizing the case will harm the child this court is charged with protecting. The potential for additional harm to the child from publication of a story which refers to the transcripts, as distinguished from publication of a story based only on the mother's version of the trial and of the underlying facts, is minuscule. If the child sees or learns about this story, she would probably be less traumatized by a story based upon all the facts elicited in court than a story based solely on her mother's version of what happened. Little favors an order restricting The Woodstock Times from utilizing the transcripts. The First Amendment and two hundred years of consistent judicial disfavor towards prepublication restrictions weigh against it. The application for a restraining order is denied.
Family Court Act § 1043 provides that "The general public may be excluded from any hearing under this article ..." From the use of the word "may" instead of "shall" this court infers that the legislature expected court proceedings to be open subject to the judge's discretion to exclude the general public.
Section 205.4 of the Uniform Rules for Trial Courts (22 NYCRR) lists factors to consider in exercising such discretion, which include whether the observer is causing or is likely to cause a disruption, whether a party objects to the presence of the observer, and whether the orderly and sound administration of justice requires exclusion. The judge shall make findings prior to excluding an observer. Section 205.4 anticipates press attendance at Family Court proceedings when it states:
(b) The judge shall, when necessary to preserve the decorum of the proceedings, instruct representatives of the news media and others regarding the permissible use of the courtroom and other facilities of the court, the assignment of seats to representatives of the news media on an equitable basis, and any other matters that may affect the conduct of the proceedings.
This relatively recent subsection was intended to liberalize access to the Family Court.
Section 4 of the Judiciary Law provides that "The sittings of every court within this state shall be public, and every citizen may freely attend the same ...". Exceptions to this general rule allow the court in its...
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