O.C.G.A.

O.C.G.A. § 49-5-40 (2019)

Definitions; confidentiality of records; restricted access to records

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) As used in this article, the term: (1) “Abused” means subjected to child abuse. (2) “Child” means an individual under 18 years of age. (3) “Child abuse” means: (A) Physical injury or death inflicted upon a child by a parent, guardian, legal custodian, or caretaker thereof by other than accidental means; provided, however, that physical forms of discipline may be used as long as there is no physical injury to the child; (B) Neglect or exploitation of a child by a parent, guardian, legal custodian, or caretaker thereof; (C) Sexual abuse of a child; (D) Sexual exploitation of a child; or (E) Emotional abuse of a child. However, no child who in good faith is being treated solely by spiritual means through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a

duly accredited practitioner thereof shall, for that reason alone, be considered to be abused. (4) “Child advocacy center” means an entity which is operated for the purposes of investigating known or suspected child abuse and treating a child or a family that is the subject of a report of child abuse and which: (A) Has been created and supported through one or more intracommunity compacts between such center and: (i) One or more law enforcement agencies within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; (ii) The office of the district attorney, Attorney General, or United States Attorney; (iii) A legally mandated public or private child protective agency within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; (iv) A mental health board within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; or (v) A community health service board within this state; any other state; the United States, including its territories, possessions, and dominions; or a foreign nation; and (B) Has been approved by a protocol committee established under Chapter 15 of Title 19. (5) “Court” means a judge of any court of record or an administrative law judge of the Office of State Administrative Hearings. (6) “Emotional abuse” shall have the same meaning as set forth in Code Section 15-11-2. (7) “Legal custodian” shall have the same meaning as set forth in Code Section 15-11-2. (8) “Near fatality” means an act that places a child in serious or critical condition as certified by a physician. (9) “Record” shall include documents, books, maps, drawings, computer based or generated information, data, data fields, digital images, photographs, video images, audio recordings, and video recordings. (10) “Sexual abuse” means an individual’s employing, using, persuading, inducing, enticing, or coercing any child who is not that individual’s spouse to engage in any act which involves:

PROGRAMS & PROTECTION FOR CHILDREN

(A) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between individuals of the same or opposite sex; (B) Bestiality; (C) Masturbation; (D) Lewd exhibition of the genitals or pubic area of any individual; (E) Flagellation or torture by or upon an individual who is nude; (F) Condition of being fettered, bound, or otherwise physically restrained on the part of an individual who is nude; (G) Physical contact in an act of apparent sexual stimulation or gratification with any individual’s clothed or unclothed genitals, pubic area, or buttocks or with a female’s clothed or unclothed breasts; (H) Defecation or urination for the purpose of sexual stimulation; or (I) Penetration of the vagina or rectum by any object except when done as part of a recognized medical procedure. (11) “Sexual exploitation” means conduct by any individual who allows, permits, encourages, or requires any child to engage in: (A) Trafficking of persons for labor or sexual servitude, in violation of Code Section 16-5-46; (B) Sexual servitude, as defined in Code Section 16-5-46; (C) Obscene depiction of a minor, in violation of Code Section 16-11-40.1; (D) Nude or sexually explicit electronic transmission, in violation of Code Section 16-11-90; or (E) Sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct, in violation of Code Section 16-12-100. (b) Each and every record concerning reports of child abuse and child controlled substance or marijuana abuse which is in the custody of the department, other state or local agency, or child advocacy center is declared to be confidential, and access thereto is prohibited except as provided in Code Sections 49-5-41 and 49-5-41.1. (c) Each and every record concerning child abuse or neglect which is received by the department from the child abuse and neglect registry of

any other state shall not be disclosed or used outside the department for any other purpose other than conducting background checks to be used in foster care and adoptive placements.

History

Ga. L. 1975, p. 1135, § 1; Ga. L. 1987, p. 1000, § 2; Ga. L. 1990, p. 1778, § 1; Ga. L. 1993, p. 1712, § 1; Ga. L. 2007, p. 478, § 7/SB 128; Ga. L. 2009, p. 43, § 1/SB 79; Ga. L. 2009, p. 733, § 3/SB 69; Ga. L. 2016, p. 160, § 2/HB 725; Ga. L. 2017, p. 774, § 49/HB 323; Ga. L. 2021, p. 134, § 14/SB 28. The 2021 amendment, effective January 1, 2022, substituted “Sexual servitude, as defined in Code Section 16-5-46” for “Prostitution, in violation of Code Section 16-6-9” in subparagraph (a)(11)(B).

Annotations

Cross references. Persons required to report instances of child abuse, § 19-7-5. Battery, assault, stalking, and other offenses involving family members, § 1913-1 et seq.

Toll free number for reporting child abuse or neglect, § 20-2-324.4. Editor’s notes. Ga. L. 2016, p. 160, § 1/HB 725, not codified by the General Assembly, provides: “This Act shall be known and may be cited as the ‘Child Abuse Records Protection Act.’” Law reviews. For article, “Georgia’s Open Records and Open Meetings Laws: A Continued March Toward Government in the Sunshine,” see 40 Mercer L. Rev. 1 (1988). For article, “Practical Challenges to Representing Unaccompanied Children Before the Atlanta Immigration Court,” see 22 Ga. St. Bar J. 35 (April 2017).

JUDICIAL DECISIONS Discovery of “scientific records.” - Former O.C.G.A. § 17-7-211 did not provide an independent statutory basis for discovery of “scientific records” of child abuse maintained by institutions listed in O.C.G.A. § 49-5-40. In the absence of obtaining a statutory exception by compliance with O.C.G.A. §§ 49-5-41 or 49-541.1, as applicable, such child abuse records remain protected. Horne v. State, 192 Ga. App. 528, 385 S.E.2d 704, 1989 Ga. App. LEXIS 1089 (1989), cert. denied, 494 U.S. 1006, 110 S. Ct. 1302, 108 L. Ed. 2d 479, 1990 U.S. LEXIS 1129 (1990). Failure to provide county child abuse records. - Trial court erred by failing to provide the defendant with the county child abuse documents the defendant requested during the defendant’s trial for child molestation, but the defendant was not denied due process since the defendant failed to show that the trial court withheld any material, exculpatory information. Dodd v. State, 293 Ga. App.

816, 668 S.E.2d 311, 2008 Ga. App. LEXIS 1083 (2008). Oral allegation of child abuse to Department of Family and Children Services was publication for purposes of slander claim. - Although under O.C.G.A. § 49-5-40(b), reports made to the Department of Family and Children Services (DFACS) (now Division of Family and Children Services of the Department of Human Services) are confidential, the law of defamation requires only that the statement be disseminated to any person other than the person slandered. Therefore, a landlord’s oral allegations to a DFACS employee that a tenant committed child abuse amounted to “publication” for purposes of O.C.G.A. § 515-4. Brown v. Rader, 299 Ga. App. 606, 683 S.E.2d 16, 2009 Ga. App. LEXIS 818 (2009), cert. denied, No. S10C0005, 2009 Ga. LEXIS 720 (Ga. Nov. 2, 2009). Criminal defendant not entitled to MySpace.com and school records. - Trial court did not abuse the court’s dis-

PROGRAMS & PROTECTION FOR CHILDREN

cretion in denying the defendant access to the incest victim’s MySpace.com and school records because the defendant failed to show both the materiality and the favorable nature of the evidence sought. Stephens v. State, 305 Ga. App. 339, 699 S.E.2d 558, 2010 Ga. App. LEXIS 668 (2010). Burden on defendant to show need for release of records. - Trial court did not err by failing to release documents

showing earlier child abuse from a child’s file which might have been critical to a defendant’s case since the burden was on the defendant to show what documents in a child’s sealed file were suppressed and how it was materially exculpatory and the defendant failed to make the showing. Dunagan v. State, 255 Ga. App. 309, 565 S.E.2d 526, 2002 Ga. App. LEXIS 608 (2002), cert. denied, No. S02C1399, 2002 Ga. LEXIS 888 (Ga. Sept. 30, 2002).

OPINIONS OF THE ATTORNEY GENERAL Release of records to Department of Education hearing officers. - Those portions of child protective service records releasable to parents and guardians under Social Services County Letter No. 86-1 promulgated pursuant to federal court order in J.J. v. Ledbetter, C.A. No. CV18084, U.S.D.C., S.D. Ga. (1985), may likewise be released to Department of Education hearing officers conducting hearings under the Education of All Handicapped Act, 20 U.S.C. § 1401 et seq., if, and only if, (1) the parents specifi-

cally request in writing that the Department of Human Resources (now Department of Human Services) forward the records to the hearing officer, or (2) the Department of Human Resources (now Department of Human Services) receives a written request for the records from the hearing officer personally and is subsequently able to secure the written permission of the parents to forward the records to the hearing officer. 1987 Op. Att’y Gen. No. 87-25.

RESEARCH REFERENCES ALR. Validity, construction, and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect, 44 A.L.R.4th 649.

Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776.

Notes of Decisions

Cited in 23 cases (2 in the last 5 years), 1987–2025 · leading case: Horne v. State, 385 S.E.2d 704 (Ga. Ct. App. 1989).

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Horne v. State, 385 S.E.2d 704 (Ga. Ct. App. 1989). · cites it 28× “Butler had compiled a "written scientific report" within the meaning of OCGA § 49-5-40, *531 such a report would be privileged and exempt from disclosure under OCGA § 17-7-211.”

Darst v. State, 746 S.E.2d 865 (Ga. Ct. App. 2013). · cites it 4× “We acknowledge that the Department’s records involving child abuse allegations are deemed confidential under OCGA § 49-5-40 (b). See OCGA § 49-5-40 (a) (3) (B), (C) (The term “child abuse” includes neglect of a child by a parent or caretaker and sexual abuse of a child.”

Napper v. Georgia Television Co., 356 S.E.2d 640 (Ga. 1987). · cites it 4× “(b) The appellant argues that various of the files contain information regarding allegations of child abuse, molestation, or neglect, and that such records are confidential pursuant to OCGA § 49-5-40.”

Stephens v. State, 699 S.E.2d 558 (Ga. Ct. App. 2010). · cites it 4× “After inspecting the records and finding no exculpatory evidence therein, the court ruled that the records were not subject to disclosure pursuant to OCGA § 49-5-40 et seq. 8 Stephens also filed a motion to obtain A.”

Grier v. the State, 792 S.E.2d 737 (Ga. Ct. App. 2016). · cites it 4× “To that end, OCGA § 49-5-40 (b) provides that “[e]ach and every record concerning reports of child abuse .”

Brown v. Rader, 683 S.E.2d 16 (Ga. Ct. App. 2009). · cites it 4× “See OCGA § 49-5-40 (b). See, for example, OCGA § 16-12-1 (b) (3) (contributing to the deprivation of a minor).”

Pollard v. State, 580 S.E.2d 337 (Ga. Ct. App. 2003). · cites it 2× “” DFACS records concerning the reports of child abuse are confidential, OCGA § 49-5-40 (b), and access to such records is limited by OCGA § 49-5-41, which gives such access to: [a] court, by subpoena, upon its finding that access to such records may be necessary for…”

Dunagan v. State, 565 S.E.2d 526 (Ga. Ct. App. 2002). · cites it 2× “OCGA § 49-5-40 (b). However, the records may be obtained by petitioning the trial court to subpoena the records under the provisions *312 of OCGA § 49-5-41 (a) (2) which states that reasonable access be provided to Decided May 9, 2002 William D.”

Davidson v. State, 359 S.E.2d 372 (Ga. Ct. App. 1987). · cites it 2× “OCGA § 49-5-40 et seq. The proper procedure for obtaining access to such records in cases such as the one at bar is to petition the trial court to subpoena the records and conduct an in camera inspection as to whether the records are necessary for determination of an issue…”

Dodd v. State, 668 S.E.2d 311 (Ga. Ct. App. 2008). · cites it 2× “Pursuant to OCGA § 49-5-40, records concerning reports of child abuse are confidential, and access to such records is prohibited except as provided in OCGA §§ 49-5-41 and 49-5-41.”

Moss v. State, 455 S.E.2d 411 (Ga. Ct. App. 1995). · cites it 2× “OCGA § 49-5-40, as amended, provides that records maintained by a state or local agency in connection with reports of child abuse are confidential, and access to such records is prohibited except as provided in OCGA §§ 49-5-41 and 49-5-41.”

Waters v. State, 692 S.E.2d 802 (Ga. Ct. App. 2010). · cites it 2× “OCGA § 49-5-41 (a) (2) grants access to such records to (a) court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court…”

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— 49-5-40(b) — 1 case

Brown v. Rader, 683 S.E.2d 16 (Ga. Ct. App. 2009). “See OCGA § 49-5-40 (b). See, for example, OCGA § 16-12-1 (b) (3) (contributing to the deprivation of a minor).”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.