Issues Related to Protective Service Record Expungement and Destruction Brief

Issues Related to Protective Service Record Expungement and Destruction

Pennsylvania State Senate Bill 9381 seeks to revise the expungement process for Protective Service (PS) records by allowing local agencies to maintain records internally that aid with “risk and safety assessment and research”. Pennsylvania’s current expunction law requires the destruction of all paper and digital records of the investigation after some time, including the relatively expedient destruction of unsubstantiated case files. This is a blunter expunction process than what is employed by some other states2,3,4 or as required by federal law.5 Moreover, some caution against distinguishing between substantiated and unsubstantiated cases because both are related to similar risks to child health and development.6 SB.938 maintains provisions to destroy PS records in the state-wide registry, which is intended to protect individuals involved in unsubstantiated abuse and neglect cases, as public access to those records can hinder employment, volunteer, or adoption opportunities. While unrestricted access to case records (e.g., inclusion in background checks) can be problematic for accused perpetrators, record destruction hinders efforts to protect children and prevent maltreatment. A more balanced approach would protect information so that it is only accessible for purposes that protect children, including future PS investigations and research that can strengthen maltreatment prevention.

Concerns about Destroying Case Files

1. Child welfare workers cannot protect children as well if they do not have previously collected information on the child’s risk of maltreatment. Risk of future maltreatment (and PS recidivism) is similar regardless of substantiation.7 Therefore, prior case files for all PS-involved children can assist in their protection by improving risk and safety assessments, following cases across jurisdictions, identifying potential adoptive families if risks cannot be mediated, and locating missing children. Vital information from prior investigations would not be available if the records are destroyed.
2. Record destruction contributes to workforce inefficiencies and risks worker safety, salient concerns according to a recent Auditor General report.8 When a family is investigated multiple times, investigative information that was previously collected and destroyed during expunction must be reproduced by case workers. Further, case files can provide vital information about risks to worker safety (e.g., previous aggression against workers). Retaining case files can impact the health and wellbeing of the child welfare workforce by (1) alerting caseworkers to potential dangers within the case context and (2) increasing efficiency and reducing burnout by eliminating the need to replicate previously destroyed records.
3. Case records are essential to informing improvements in child welfare services. Many families who are investigated for child maltreatment are referred to services designed to reduce risk and improve the safety of children – regardless of whether the case is substantiated.8 Decades of unadulterated case records are needed for evaluating which interventions hold the most promise for long-term impact and cost-effectiveness assessments that enable shrewd decisions about government-funded services. Moreover, record destruction threatens transparency and corrective action in government activities because prior records can reveal red flags that may have been missed and identify areas where better training or monitoring is needed.
4. We will be unable to conduct research to inform the prevention of challenges faced by child welfare-referred youth. Just because a child maltreatment case has not been substantiated does not mean that there was no risk or harm incurred by the child(ren). In fact, risk associated with PS referrals (e.g., poorer academic performance, juvenile delinquency, risky sexual behavior, substance use, and other developmental and behavioral health outcomes) is similar for children regardless of whether the case is substantiated.9,10,11 Data on prior investigations supports effective prevention efforts – for instance, we are only beginning to understand circumstances that lead to child sex trafficking, and data on prior PS involvement is vital.

Recommendation: Allow protective service records to be maintained internally for uses that promote child well-being, enhance caseworker efficiency, and enable research that informs the responsible and effective use of tax dollars. These recommendations comply with federal law,5 and are consistent with the National Commission on Evidence-Based Policymaking’s recommendations on protecting information while enabling the use of data to guide the use of public resources.12

Reference Materials

1. Senate Bill 989, 2017th Pennsylvania Legislature (2017). Retrieved from https://legiscan.com/PA/bill/SB938/2017
2. Child Welfare Information Gateway (2014). Review and expunction of central registries and reporting records. Washington, DC: U.S. Department of Health and Human Services, Children’s Bureau.
3. Personal Information Systems, Oh. Revised Code Chapter 1347. Retrieved from http://codes.ohio.gov/orc/1347
4. Ohio Department of Job and Family Services (n.d.). Child Protective Services. Retrieved from https://jfs.ohio.gov/ocf/childprotectiveservices.stm
   • “Ohio's Central Registry on Child Abuse and Neglect is a confidential database that contains allegations of reports of child abuse and neglect and the parties involved… Information contained in the Central Registry is highly confidential and may be released only under strict guidelines set forth in federal and state rules and law… Central Registry information [cannot be released to employers and] may be released only to: (1) the subject of the information, (2) an agency processing foster/adoption applications, or (3) a CSA investigating a report of child abuse and/or neglect.”
5. The Child Abuse Prevention and Treatment Act (CAPTA). 42 U.S.C.A. § 5106a(b)(2)(B)(xii) (2010).
   • “(xii) provisions requiring, and procedures in place that facilitate the prompt expungement of any records that are accessible to the general public or are used for purposes of employment or other background checks in cases determined to be unsubstantiated or false, except that nothing in this section shall prevent State child protective services agencies from keeping information on unsubstantiated reports in their casework files to assist in future risk and safety assessment;”
6. Drake B. (1996). Unraveling "unsubstantiated". Child Maltreatment, 1, 261-271.
7. Kohl, P. L., Jonson-Reid, M., & Drake, B. (2009). Time to leave substantiation behind: Findings from a national probability study. Child maltreatment, 14(1), 17-26.
8. DePasquale, E. (2017). State of the child: A look at the strengths and challenges of Pennsylvania’s child-welfare system and the safety of at-risk children. Philadelphia, PA: Auditor General’s Office. Retrieved from: http://www.paauditor.gov/Media/Default/Reports/RPT_CYS_091417_FINAL.pdf
9. Hussey JM, Marshall JM, English DJ, et al. (2005). Defining maltreatment according to substantiation: distinction without a difference? Child Abuse & Neglect, 29, 479-374.
10. Leiter J, Myers KA, Zingraff MT. (1994). Substantiated and unsubstantiated cases of child maltreatment: Do their consequences differ? Social Work Research, 18, 67-82.
11. Kugler, K.C., Shenk, C.E., Guasteferro, K.M., Beal, S.J., & Noll, J. (under review). The effect of child maltreatment reports and subsequent adolescent health. Journal of Preventative Medicine.
12. Commission on Evidence-Based Policymaking (September, 2017). The promise of evidence-based policymaking. Washington DC: Commission on Evidence-Based Policymaking. Retrieved from https://www.cep.gov/content/dam/cep/report/cep-final-report.pdf