Grandmother of Dead Child May Post Child Protection Services Documents That Are Confidential Under State Law,

From Schrader v. Sundaydecided today by Judge Jennifer P. Wilson (MD Pa.):

This is an action seeking injunctive relief filed by Plaintiff Victoria Schrader … against David W. Sunday, Jr., the District Attorney of York County … and Josh Shapiro, the Attorney General of Pennsylvania …. According to the complaint, on December 20, 2018, the Commonwealth of Pennsylvania charged Tyree M. Bowie … with the murder of Dante Mullinix … a two-year old child. {The criminal case against Bowie remains pending….}

Schrader is Dante’s grandmother, who believes that the York County Office of Children and Youth Services … “failed to protect Dante and prevent his death.” Similarly, Sarah Mercado …, Dante’s aunt and Schrader’s daughter, believes that York County CYS failed Dante and that Bowie is innocent of Dante’s murder. {Mercado has two cases with the court seeking relief similar to that requested in the instant case….} To advocate for these beliefs, Mercado maintains a Facebook group entitled “Justice for Dante” on which she posts her belief that Bowie is innocent, and that York County CYS was the party responsible for failing Dante, rather than Bowie.

During the course of discovery in his criminal case, Bowie received various documents concerning investigations into Dante’s death, including documents from CYS. Before Dante’s death, Mercado made a report to CYS expressing concern for Dante’s wellbeing. Mercado’s report, and the documents associated with the investigation stemming therefrom, were part of the documents available to Bowie in his ongoing criminal case. After Bowie received these documents, he sent them to Mercado, who posted them to the Justice for Dante Facebook page as additional evidence of CYS’s alleged failings surrounding Dante’s death.

Following publication of these documents to Mercado’s Facebook page, “Sunday charged Mercado with a second-degree misdemeanor under Pennsylvania’s Child Protective Services Law.” As a result, Schrader alleges that while she desires to republish and distribute the CYS documents already published by Mercado on Facebook, she fears the institution of proceedings if she does so in light of Sunday’s prosecution of criminal Mercado…. The CPSL … provides for the confidentiality of any information in the Statewide database, and that only certain enumerated individuals and entities are entitled to access this information…. The statute creates criminal penalties for non-compliance with confidentiality requirements. Specifically, section 6349 states:

A person who willfully releases or permits the release of any information contained in the Statewide database or the county agency records required by this chapter to persons or agencies not permitted by this chapter to receive that information commits a misdemeanor of the second degree. Law enforcement officials shall insure the confidentiality and security of information under this chapter. A person, including a law enforcement official, who violates the provisions of this subsection shall, in addition to other civil or penalties provided by law, be denied criminal access to the information provided under this chapter….

The court concluded that Schrader was likely to prevail on her First Amendment claim, and was thus entitled to a preliminary injunction barring defendants from enforcing the law against her. The law was content-based, because it “facially distinguishes favored speech from unfavored speech based on whether the speech falls within the enumerated list of documents contained within the statewide database,” and thus “restricts speech based on a particular subject matter: information contained within the statewide database,” and therefore had to be judged under strict scrutiny:

In this case, the court finds that the statute is not narrowly tailored to meet the government’s [compelling government interests]. The criminalizes disclosure of any Information contained within reports or records of child abuse, regardless of whether the information has already been previously released to the public. Schrader has proposed plausible, less-restrictive alternatives which she asserts would suffice to protect the state’s interest in the confidentiality of child abuse records.

Specifically, Schrader claims that the Commonwealth could have: (1) implemented “more rigorous internal procedures regarding dissemination,” which could include “‘a damages remedy against the government or its officials'”; (2) “sought a protective order to prevent Tyree Bowie[ from] sharing … the CYF Documents with anyone other than his defense attorney” prior to releasing the documents to the defense; or (3) implemented “stricter guidelines for the release of confidential information in the context of a criminal prosecution.”

In response to Schrader’s proposed less restrictive alternatives, Sunday observes that “it seems unlikely that civil penalties would be sufficient” for the deterrent effect desired to prevent the release of this confidential information, and that “[t]he imposition of job-related consequences for government employees is also insufficient, given that non-government employees are also capable of releasing information they obtain.” For his part, Shapiro merely states that Schrader’s proposed alternatives are “disingenuous” and that her proposals request a “stamp of approval from this court to forgive the prior unlawful conduct of others.” Shapiro also generically asserts that “the alternatives offered by Plaintiff would be ineffective to achieve the goals of preventing the release of confidential materials. Even if the government did more to explain that the materials should not be shared by Bowie, nothing seems to suggest, based on the record presented[,] that Bowie would have done anything different than share them with Mercado.”

The court finds that neither Defendant’s response meaningfully engages with the less restrictive alternatives proposed by Schrader. Indeed, Shapiro is entirely dismissive of the notion that an alternative less restrictive than criminal sanctions could exist. Instead, Defendants offer alternatives for Schrader’s speech, noting that she could air her concerns to the citizen review panels that exist to hear such complaints, and that she is free to criticize York County CYS without releasing confidential child abuse records. However, less restrictive alternatives for the proposed speech are not what the court is tasked with considering. See Reno v. ACLU (1997) (rejecting an argument that the statute provided a “reasonable opportunity” to engage in restricted speech as inapplicable to the strict scrutiny analysis) ….

Defendants’ failure to effectively refute Schrader’s proposed less-restrictive alternatives to the criminal penalties imposed by the CPSL results in a failure to show that the CPSL is sufficiently narrowly tailored. Defendants may be able to meet this burden at a later stage in this case, but for purposes of evaluating whether a preliminary injunction is appropriate, Defendants’ failure to meaningfully respond to Schrader’s arguments equates to a likelihood of success on the merits of Schrader’s First Amendment Claims under the relevant First Amendment standards.

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