In Camera Review
The term “in camera” is latin for “in chambers” and is a legal proceeding when a hearing or evidence is presented before a judge in private chambers. Often this process is used to protect a victim or witness from the consequences of public airing of issues, especially if the victim or witness is a child.
Sometimes a party will object to testimony or production of relevant documents during a trial on grounds that their information is confidential. A solution for getting the necessary information before the judge is to have the testimony or document reviewed by the judge in his private chambers.
There are times due process cannot be carried out without the release of confidential material. Disclosure in the interests of justice far outweighs the necessity to preserve confidentiality in the instant matter.
One situation that comes up is the necessity of including the information gathered by a Family Court Services Child Custody Recommending Counselor (“FCSCCRC”), and employee of Family Court Services (“FCS”) in trial. If the FCS Counselor has been called to testify they may object to the production of documents on grounds that their records are confidential.
However, pursuant to CCP §1987.1(b), the Court may order compliance with a subpoena duces tecum. The Court must then make a determination pursuant to Evidence Code §1040(b)(2) weighing the necessity to preserve the confidentiality of FCS records versus the necessity for disclosure in the interests of justice.
In this case, FCS has objected in order to compel a statutory review of the subpoena in a practice that is so commonplace that it has been reduced to standard procedure under San Diego Local Rule 5.10.2.C.5., which prohibits the release of FCS documents without in camera review (but does not per se prohibit the release of those documents, and certainly not under the controlled conditions of a Court proceeding).
As a general rule, FCSCCRCs and their files are generally not available for discovery, and pre-hearing examination of the FCSCCRC is prohibited (absent “good cause,” ) The policy of FCS is to consider the material confidential and “unavailable to any person except the Court, parties, their counsel, and any person to whom the Court expressly grants access by written order made prior [sic] to notice to all parties.”
The FCS file is “Official Information” pursuant to Evidence Code §1040; however, the interests of justice in the instant matter demand that disclosure be allowed, and by statute, it is up to the Court to compel disclosure. In the event that any data be withheld, it is impossible for the analysis to be evaluated. FCS is proposing that all data be withheld.
Denial of access to any of FCS’ documents would constitute a violation of due process. One can easily envision a cross-examination wherein a counselor-witness could (truthfully or otherwise) claim to have forgotten a factor that influenced the counselor’s recommendation. With the notes inaccessible, there would be no way for a party to obtain information on that factor. There is also the possibility that a counselor mistranscribed or misinterpreted information provided by the parties. Again, this will be difficult or impossible to confirm without the counselor’s notes and/or other materials on which the counselor relied to make a recommendation.
Moreover, the notion of FCS denying access to records to hide errors is not a hypothetical one. The proper execution of duties by FCS cannot be taken on faith. Not so long ago, in Emily Gallup v. Nevada County, California, Case #: 2011-00106805, an FCS counselor was awarded $313,206 in damages by a jury after her wrongful termination for whistle blowing on a number of flagrant violations of state law committed by Nevada County FCS staff. These violations included failure to review legal files and criminal records, failure to contact collateral sources, and failure to follow domestic violence protocol, all of which are relevant to the instant matter. Without due process, it is impossible to determine if FCS even did its job correctly.
The primary purpose of Evidence Code §1040 is to protect parties from the release of confidential information to third parties or the press. There is no privilege to protect: the information is being restricted to access by the Court (which FCS serves) and the parties. As the information solely involves and/or is provided by the parties, there is no breach of privilege. The characterization of its file as “official information” does not bar disclosure or production, and disclosure/production should only be refused after consideration of relevant factors (listed).
In this example, there would be a distinction between a third party requesting such information and a party seeking that information for use within the restricted confines of the Court proceeding itself.
Therefore, given that there is no necessity to preserve the confidentiality of FCS records from the parties or the Court, serving justice through disclosure is the more valuable path.