Assessing the Feasibility of Creating and Maintaining a National Registry of Child Maltreatment Perpetrators: Research Report. 2.1 FEDERAL REQUIREMENTS AND GUIDANCE

09/01/2012

Additional provisions of the Adam Walsh Act Child Protection and Safety Act of 2006 (Adam Walsh Act) and provisions of the Child Abuse Prevention and Treatment Act of 1974 (CAPTA) and the Federal Privacy Act of 1974 (Federal Privacy Act) have a potential impact upon the creation of a national registry.[18],[19],[20] In addition to requiring the Department of Health and Human Services (HHS) to establish a national child abuse registry, the Adam Walsh Act requires States, territories, and tribes that receive payments under Title IV-E of the Social Security Act to check the child abuse and neglect registry in any State in which a prospective foster or adoptive parent or an adult member of their household has lived in the previous 5 years. States must also provide registry checks requested by other States and take steps to prevent unauthorized dissemination of the information.[21]

The Child Abuse Prevention and Treatment Act (CAPTA)

As a condition of receiving Federal funding through CAPTA, States must preserve the confidentiality of all child abuse and neglect reports and records to protect the privacy rights of the child and of the child's parents or guardians. Reports and records of abuse and neglect may only be made available to:

  • individuals who are the subject of the report
  • Federal, State or local government entity, or any agent of such entities that has a need for such information in order to carry out its responsibilities under law to protect children from abuse and neglect
  • child abuse citizen review panels
  • child fatality review panels
  • a grand jury or court, upon a finding that information in the record is necessary for the determination of an issue before the court of grand jury
  • other entities or classes of individuals statutorily authorized by the State to receive such information pursuant to a legitimate State purpose[22]

If the records are accessible to the general public or are used for the purposes of employment or other background checks, then States must also submit plans that include provisions and procedures for the prompt removal of records of unsubstantiated or false allegations of child abuse and neglect.[23]

The Federal Privacy Act of 1974

The Federal Privacy Act establishes rules that govern the collection, maintenance, use, and dissemination of personally identifiable information about individuals, maintained in a system of records by Federal agencies. A system of records is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifier assigned to the individual. The law prohibits the disclosure of information from a system of records absent the written consent of the subject individual, unless the disclosure is pursuant to one of the statutory exceptions. Two of the exceptions may apply to the national registry—the "routine use" exception, and the "law enforcement" exception.

The "routine use" exception states that agencies may disclose records contained within a system of records "for a routine use." A routine use with respect to the disclosure of a record is defined as "the use of such record for a purpose, which is compatible with the purpose for which it was collected."[24] If this exception is applied, then the following must be published.

"[e]ach agency that maintains a system of records shall . . . publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include each routine use of the records contained in the system, including the categories of users and the purpose of such use."[25]

The law enforcement exception may be used if States are requesting data for civil or criminal law enforcement. This exception states that information may be disclosed:

To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought. [26]

The Federal Privacy Act also requires government agencies to assure that records are accurate, that individuals have an opportunity to review and request amendment of records pertaining to them, and that procedures are established to record how and when personal information is disclosed.

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