MEMORANDUM
I. Introduction
Pending are plaintiff Sandra Farley’s (‘Plaintiff’) objections, pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a), to a protective order entered in this case on September 27, 1996 by U.S. Magistrate Judge Juliet Griffin. These provisions allow the Court to review and revise the protective order if the order is found to be “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). As a preliminary matter, the Court notes that Plaintiffs objections were timely filed on October 7, 1996 — within the ten-day period after service of the order set forth in Fed. R.Civ.P. 72(a), as modified by Fed.R.Civ.P. 6(a). 1
For the reasons set forth below, the Court, in its appellate jurisdiction in this matter, finds merit in certain of Plaintiffs objections to the scope and provisions of the protective order. Accordingly, upon reconsideration, the Court MODIFIES the protective order to permit disclosure of certain materials encompassed by the order to select individuals and witnesses. The Court DENIES, however, Plaintiffs request for an order granting access to other investigative files compiled or overseen by the individual defendants in this case.
II. Factual History
Plaintiff claims that her former husband, David Farley, conspired with agents of the Tennessee Department of Human Services (“DHS”), now the Department of Children’s
Tennessee law expressly provides that, in the interest of protecting children and their parents or guardians, it is illegal for any person to disclose or otherwise make use of DCS records except under the limited circumstances prescribed by statute. T.C.A. §§ 37-1-409(b), 37-l-612(b). 5 In recognition of this public policy, Magistrate Judge Griffin issued the following order:
Disclosure of any information produced by the Tennessee Department of Human Services ... or Jane Brock concerning their records regarding Christina Farley and David Farley, Jr., minor children, or their parents, David Farley, Sr. and Sandra Farley, or Hugh Curtiss, 6 is hereby agreed to be confidential under T.C.A. §§ 37-1-409 and 37-1-612, is hereby designated to be confidential, and shall be subject to the provisions of this agreement. Disclosure of any information derived from the documents produced shall be limited to the parties and their counsel and to such other personnel employed by the parties in the litigation of the claims in [this case].
(Sept. 27, 1996 Prot. Ord. at ¶ 1; Docket Entry No. 40). In a second order memorializing a teleconference between the parties, Magistrate Judge Griffin elaborated upon the effect of the underlying protective order:
The ... protective order ... precludes counsel in this case from disclosing to anyone information obtained under the protective order. Counsel may talk to fact witnesses and/or former employees of. the Department of Human Services, but are, by the terms of the protective order, precluded from disclosing any information covered undér the protective order____ The prohibition against such disclosure includes not only information contained in the DHS file and disclosed. under the terms of the ... protective order, but also includes disclosure of information not con-tamed in the DHS file. Furthermore, the Court will not alter the duty of any present or former employee of the Department not to disclose information pursuant to T.C.A. §§ 37-1-409 and 37-1-612.
(Sept. 27, 1996 Ord. at 1-2; Docket Entry No. 41).
In short, the protective order at issue in this appeal prevents Plaintiff from disclosing to third parties any information contained in Plaintiffs DHS/DCS records. Plaintiff objects to the scope of this order on two grounds: (1) that the protective order, as entered and as clarified by further order of Magistrate Judge Griffin, constitutes a prior restraint upon the dissemination of information obtained in preparation for trial in violation of the First Amendment to the Constitution; and (2) that the privilege accorded Plaintiffs file under Tennessee law need not be recognized by a district court sitting in federal question jurisdiction when Plaintiff has demonstrated an overriding need for discovery. Plaintiff proposes that this Court amend the protective order to allow publication of the contents of her DCS file to third parties, and that this Court provide access, by appropriate order, to other DCS files generated or overseen by the individual defendants in this matter.
III. Standard of Review
Both the statute and the procedural rule allowing district court reconsideration of magistrate orders dictate that the reviewing court defer to the magistrate’s discretion in refereeing discovery disputes. The standard of review under 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a) prescribes that a magistrate’s nondispositive pretrial orders shall not be disturbed unless “found to be clearly erroneous or contrary to law.” The “clearly erroneous” standard mandates that the district court affirm the magistrate’s decision unless, on the entire evidence, it “is left with the definite and firm conviction that a mistake has been committed.”
Ocelot Oil Corp. v. Sparrow Industries,
IY. Legal Analysis
A. Plaintiff’s Privilege Objection
The Court considers Plaintiffs second objection first because it requires the Court to ascertain the extent to which a state law privilege applies in federal court. If the state statutory privileges discussed above must yield in a federal civil rights action, the need and indeed the propriety of a protective order becomes attenuated. Put simply, if the Tennessee statutes mandating confidentiality do not apply in this case (or apply in a more limited fashion), the scope of the magistrate’s protective order may be inappropriately broad. Moreover, if the protective order must be amended to facilitate Plaintiffs prosecution of her civil rights claims, her First Amendment objections recede in significance and relevance.
There is no constitutional inhibition to the abrogation of privileges arising under state law when a matter is heard by a federal tribunal. Dorsten v. Lapeer County General Hospital, 88 F.R.D. 583, 586 (E.D.Mich.1980). Rule 501 of the Federal Rules of Evidence codifies the factors that this Court must consider in deciding whether a state law privilege blocks the discovery and/or the admissibility of certain proof:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.
Fed.R.Evid. 501. As a general restatement of the rule, it has been noted that, in diversity actions where the federal district court sits as an alternate local forum applying local
It must be noted, however, that a mechanical conception of Rule 501, turning upon the subject matter jurisdiction of the district court, was rejected by the congressional drafters of the rule. H.R. Conf. Rep. No. 93-1597, at 7-8 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7100-01. It has also been disclaimed in the judicial and academic commentary construing the operation of the rule’s provisions. See generally, 23 C. Wright and K. Graham, Federal Practice and Procedure §§ 5432-33 (1980). Rule 501 does not bar the application of state law privileges in federal question cases. In fact, certain elements of diversity cases are governed by federal law, and, alternatively, the interstices of federal question jurisdiction must often be filled by the appropriation of state law. See id. § 5433, at 853-54 nn. 4-5 (citing eases); H.R. Conf. Rep. No. 93-1597, at 7-8. Accordingly, the extent to which a state law privilege applies, if at all, in a case arising under and governed by federal law is a more subtle question than a strict diversity/federal question dichotomy would suggest or allow.
In federal civil rights actions, most courts that have taken up the issue of state privileges have concluded that state law must yield to the federal interest in full disclosure of all facts bearing upon the denial of federally-guaranteed rights.
See, e.g., King v. Conde,
Although it has been held, and this Court agrees, that only particularly strong state policies justify the withholding of evidence in federal civil rights actions,
Lora,
Although the Court recognizes that flexibility to develop rules of privilege on a case-by-case basis is the hallmark of Rule 501,
see Trammel v. United States,
Those cases that are most factually, legally, and analytically similar to the case at bar involve attempts by plaintiffs in federal civil rights actions to obtain official information, privileged from disclosure by state statute, from public entities whose agents have been charged with denying or abridging federally-guaranteed rights.
See e.g., King,
Before continuing its analysis, however, the Court must address whether an evidentiary privilege is involved in this matter that would implicate Rule 501. While certain courts have concluded that a legislative pronouncement of confidentiality does not equate to the creation of an evidentiary privilege,
see generally American Civil Liberties Union of Mississippi, Inc. v. Finch,
The social policy embodied by T.C.A. §§ 37-1—409 and 37-1-612 is quite clear. By the enactment of these statutes, the Tennessee General Assembly has asserted in no uncertain terms that the reporting, systematic examination and prevention of child abuse is of fundamental public importance. The scope of these provisions is deliberately broad, prohibiting disclosure or use of any information for unauthorized purposes whether directly or indirectly derived from DCS sources. T.C.A. §§ 37-1-409(b), 37-1-612(b). Those who breach the confidentiality of abuse records face a criminal penalty. T.C.A § 37-1-409(f). In addition, the fact that these statutes may impinge, impede or simply halt the course of evidence gathering in a civil action has been recognized and upheld by the Tennessee courts.
See American First Mortgage Corp. v. LaJoie,
It is also readily apparent, based upon a facial examination of the confidentiality statutes in question, that their primary purpose is the protection of the privacy of those who are not likely to be parties to a federal civil rights suit. The identity of the reporter, victim and alleged perpetrator of child abuse may only be divulged under the quite limited circumstances associated with the protection of the child and the prosecution and/or treatment of the alleged perpetrator. T.CA §§ 37-1—409(a)(2), (c) and 37-1-612(c), (d) and (g). As has been noted by other federal courts, the confidentiality of official records is generally guaranteed by statute to protect those who are regulated by a state agency rather than the agency itself.
Lewis v. Radcliff Materials, Inc.,
This Court has little difficulty in concluding that T.CA §§ 37-1-409 and 37-1-612 establish an evidentiary privilege that is entitled to deference under the principles of federalism and comity that are an implicit component of Rule 501. The confidentiality provisions at Issue in this case have been
Another matter that bears discussion is the fact that, at this juncture, the state has responded to Plaintiffs request for production of documents by transmitting to her a redacted copy of her DCS investigative file. While it would be tempting to conclude that the state has waived any claim of privilege by complying with Plaintiffs discovery request, it must be recalled that the magistrate’s protective order, and the Tennessee confidentiality provisions upon which it is based, precludes further dissemination of the contents of the file to any witness interviewed or deposed in connection with this matter. Plaintiff does not argue that she has been denied discovery of relevant evidence, but rather that her capacity to make use of this evidence in the prosecution of her ease has been crippled by the invocation of Tennessee law. The Court takes up this issue now.
1. Federal Interests in Disclosure and Plaintiff's Need for Disclosure
In federal litigation, both the Federal Rules of Civil Procedure and the Federal Rules of Evidence are designed to facilitate discovery and admission into the factfinding process of all relevant evidence. Fed.R.Civ. P.26 authorizes a broad scope of discovery, including information not admissible at trial, if the material sought has some probative value in proving or disproving a claim or defense. Fed. R. Civ. P. 26(b)(1). The only limitation is that the information to be obtained may not be privileged. Id. While the privilege rule to be applied in a federal civil rights action must accord due deference to state law traditions, a critical component of the “reason and experience” informing the creation of a federal rule of privilege is the broad latitude for discovery and use of evidence granted by the procedural and evidentiary rules that govern the federal courts. See Fed.R.Evid. 1101(c) (stating that Fed. R.Evid. 501 “applies at all stages of all actions, cases, and proceedings.”). Fed.R.Civ.P. 26 states that all relevant evidence 10 is discoverable, while Fed.R.Evid. 402 provides that the evidence adduced in discovery is admissible at trial unless otherwise barred by federal law. As stated by the United States Supreme Court, the scheme of rules mandating wide-ranging discovery end admission of evidence serves a fundamental public interest:
We have elected to employ an adversary system of ... justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive____ The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.
Nixon,
Without full and fair disclosure of relevant proof, the public is likely to lose confidence in the administration of justice by the federal courts. It is therefore of paramount importance that litigants be accorded the authority to seek out relevant evidence that they have been granted by the federal rules. This is particularly true in federal civil rights actions where the vindication of constitutional rights is often at stake. In the instant action, it is clear that Plaintiff should be entitled to question witnesses, including current and former DCS employees, about the contents of her file in order to develop an appropriate factual record. Although it may be argued that the facts necessary to prosecute Plaintiff’s claim are already contained in her file, Plaintiff must be allowed to ascertain whether her file is indeed accurate and whether the procedures adopted by DCS in her case compare favorably to or are in accord with the practices normally observed by the agency.
2. Chilling Effect Upon Reports of Child Abuse
As stated above, Plaintiff has already been provided a redacted version of her DCS in
3. Interference With Important Governmental Processes
Without question, the investigation and resolution of incidents of child abuse is one of the most important regulatory objectives that a state may undertake. In executing their duties, however, agents of the state
11
may not ignore the constitutional command that the targets of an investigation be accorded due process. The confidentiality granted child abuse records under Tennessee law may not be invoked as a shield with which to block scrutiny of governmental practices. The federal courts have repeatedly held that the interest in ensuring governmental compliance with federally-guaranteed civil rights is paramount to the state interest in confidentiality.
See, e.g., Finch,
It has not been (nor may it be) claimed that the production of Plaintiffs DCS file has interfered with or hampered the conduct of investigations by agency officials. First, DCS voluntarily complied with Plaintiffs request for production of her file, the vast majority of which includes investigative summaries and internal communications between department officials. Second, as discussed in the preceding subsection of this memorandum, there are numerous provisions, enumerated within the confidentiality statutes themselves, directing that properly redacted DCS files be forwarded to those authorities responsible for the prosecution and treatment of child abuse. T.C.A. §§ 37-1—409(c)-(e), 37-1-612(c)-(g). These statutory exceptions undercut any argument that agency employees have some expectation that the manner in which they perform their duties will remain insulated from outside view.
Burka,
4. Waiver
The waiver issue before the Court is not whether the state has waived the confidentiality of Plaintiffs file by responding to her request for its production.
See generally Lora,
Examination of T.C.A. §§ 37-H09 and 37-1-612 reveals that DCS records may only be used in connection with the treatment of child abuse victims and the punishment of alleged offenders. The Tennessee General Assembly has expressly dictated that child abuse files are to remain confidential “except for purposes directly connected with the administration” of Tennessee’s mandatory child abuse reporting laws, T.CA,. § 37-1-402-08. T.C.A. §§ 37-l-409(b), 37-l-612(b). Although approved purposes enumerated by statute include cooperation with a variety of child welfare agencies, medical and mental health personnel, law enforcement agencies and judicial systems — cooperation with private plaintiffs in the conduct of federal civil rights litigation (or any related purpose for that matter) is not listed. T.C.A. §§ 37-1-409(e)(2), 37-l~612(f)(2). Moreover, while T.C.A. § 37-l-612(h) provides for mandatory disclosure of confidential information by “court” order in furtherance of proper disposition of a “case,” it is apparent from the language of the entire subsection that the “case” referred to is a “proceeding which may be brought in any court, or before any administrative board or hearing officer for the purpose of protecting a child or children from child abuse or neglect or child sexual abuse,” and the “court” is a court of competent jurisdiction to hear such a proceeding. T.C.A. § 37-1-612(h). As argued by the state in its response memorandum, this language does not encompass a civil rights action brought by the parent of a child victim against social workers and their supervisors, nor is a federal court presiding over a § 1983 action a “court” that is within the scope of the statutory scheme. (Def.’s Resp. at 4-5; Docket Entry No. 57).
In addition, notwithstanding the fact that the legislature has authorized appropriate administrative regulations to effectuate release of certain information to the judicial and law enforcement communities, T.‘C.A. §§ 37-1—409(e)(2) and 37-l-612(f)(2), use of this information appears clearly limited to child abuse proceedings.
12
Plaintiff has argued that an internal DCS confidentiality policy, CDM 24, which has been produced by the state supports her assertion that this Court may order discovery and dissemination of her investigative file. (Pltf.’s Mem. Supp. Mot. to Amend Ex. 1 at 1-2; Docket Entry No. 47). Once again, however, the language of this policy guideline does not incorporate
The Court finds that the state may not be construed to have waived the confidentiality of Plaintiff’s file either by statute or regulation. This Court has no authority under state law to order production of DCS records and their dissemination in the discovery and trial phases of federal civil rights litigation. Rather, this authority comes from the broad discovery and admissibility mandates of federal law and the prioritization of federal privileges doctrine in federal question matters under Rule 501. As discussed above, the statutory and administrative scheme under Tennessee law ensuring only limited disclosure of child abuse files must yield to a supervening interest in their production and use in federal civil rights actions.
B. Plaintiff’s Constitutional Objection
Plaintiff’s first objection to the scope and coverage of the magistrate’s protective order is that it constitutes a prior restraint upon the dissemination of discovery materials in violation of the First Amendment to the Constitution. Having already found that application of Rule 501 mandates modification of the protective order, the issue before the Court is whether a less restrictive protective order is in accord with constitutional standards. Moreover, because the Court has concluded that Plaintiff is entitled to question witnesses regarding the contents of her file, her First Amendment arguments have lost some measure of relevance and importance.
As Plaintiff has properly noted, parties do not lose their First Amendment rights by virtue of participation in the legal process.
National Polymer Products v. Borg-Warner Corp.,
In
Seattle Times Co. v. Rhinehart,
As this Court has previously held in another matter,
Seattle Times
does not force a trial court to enter a protective order restricting the dissemination of information obtained in pretrial discovery; rather, it upheld the discretion of the trial court to do so.
International Union v. Garner,
V. Conclusion
The paramount federal interest in accurate factfinding, coupled with Plaintiffs need to disseminate the contents of her file to fact witnesses and the lack of a chilling effect upon reporting and governmental processes, dictates that this Court modify the protective order at issue in this case. While the creation of federal privilege doctrine is necessarily an ad hoe process under Rule 501, the Court is not unmindful of the fact that the instant discovery dispute — pitting the invocation of T.C.A §§ 37-1 — 409 and 37-1-612 against a civil rights plaintiffs need for disclosure — is likely to recur in one or more of the federal judicial districts of Tennessee. Accordingly, the foregoing analysis, although certainly not exhaustive, is intended to forestall at least some degree of duplication of effort and exhaustion of judicial resources.
In the exercise of its discretion under 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a), the Court SETS ASIDE the first paragraph of the September 27, 1996 protective order governing this matter, (Docket Entry No. 40), and the entirety of the subsequent order, contemporaneously entered, (Docket Entry No. 41), clarifying this language. In their place, the following provision is SUBSTITUTED:
1. Disclosure of any information produced by the Tennessee Department of Human Services (“DHS”) or the Department of Children’s Services (“DCS”), or Jane Brock, concerning their records regarding Christina Farley and David Farley, Jr., minor children, or their parents, David Farley, Sr. and Sandra Farley, or Hugh Curtiss, is confidential under T.C.A §§ 37-1-409 and 37-1-612 and is hereby designated to be confidential subject to the provisions of this order and the following exceptions: (1) Counsel for the parties may disclose the contents of materials produced by DHS or DCS to their clients, to associated counsel, and to such other personnel employed by the parties in the litigation of the claims in the above-styled case; (2) counsel are also authorized to interview, depose, or otherwise contact fact witnesses and/or former DHS or DCS employees, solely for purposes connected with the litigation of the claims in the above-styled ease, using information, including actual publication to witnesses of such information, derived in whole or in part from materials produced by DHS or DCS; and (3) current and former DHS or DCS employees are hereby ordered by the Court to respond to the parties’ legitimate, procedurally-authorized and legally-sanctioned discovery efforts notwithstanding contrary duties arising under T.C.A. §§ 37-1-409 and 37-1-612.
The succeeding paragraphs of the magistrate’s protective order remain essentially unaltered, although the Court will republish the protective order in its entirety in its own contemporaneously-entered order. Particular attention is drawn to the fact that those persons to whom confidential material is disclosed must be provided a copy of the now-modified protective order and apprised of the obligations thereunder. In addition, use of confidential material for any purpose other than the preparation and trial of the instant action is prohibited, subject to penalty of contempt. Finally, the Court adds a fifth paragraph to the protective order mandating that, at the conclusion of this case, all DHS or DCS materials produced in this litigation in the possession of the parties, including any and all copies or facsimiles, shall be returned to the appropriate agency.
The Court is satisfied that its amendments to the magistrate’s protective order will adequately facilitate Plaintiffs prosecution of her federal civil rights claims. Plaintiffs request for an order granting access to other investigative files compiled or associated with the individual defendants in this 'matter is therefore DENIED.
An order consistent with this memorandum shall enter.
ORDER
For the reasons stated in the accompanying memorandum entered contemporaneously herewith, the Court, in its appellate jurisdiction in this matter under 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a), finds merit in certain of plaintiffs objections to the September 27,1996 protective order, (Docket Entry No. 40), issued by U.S. Magistrate Judge Juliet Griffin in the above-entitled action. The Court hereby SETS ASIDE the first paragraph of the protective order and the entirety of the subsequent order, contemporaneously entered, (Docket Entry No. 41), clarifying the confidentiality of the investigative files at issue in this case.
In place of the provisions hereby rescinded, the following PROTECTIVE ORDER shall govern the use and dissemination of any and all information obtained directly or indirectly from the child abuse records produced by the Tennessee Department of Human Services and/or the Tennessee Department of Children’s services in connection with the above-captioned matter.
Protective Order
Pursuant to Fed.R.Civ.P. 26(c) and for good cause shown, it is hereby ORDERED that:
1. Disclosure of any information produced by the Tennessee Department of Human Services (“DHS”) or the Department of Children’s Services (“DCS”), or Jane Brock, concerning their records regarding Christina Farley and David Farley, Jr., minor children, or their parents, David Farley, Sr. and Sandra Farley, or Hugh Curtiss, is confidential under T.C.A. §§ 37-1-409 and 37-1-612 and is hereby designated to be confidential subject to the provisions of this order and the following exceptions:
(1) Counsel for the parties may disclose the contents of materials produced by DHS or DCS to their clients, to associated counsel, and to such other personnel employed by the parties in the litigation of the claims in the above-styled case; (2) counsel are also authorized to interview, depose, or otherwise contact fact witnesses and/or former DHS or DCS employees, solely for purposes connected with the litigation of the claims in the above-styled case, using information, including actual publication to witnesses of such information, derived in whole or in part from materials produced by DHS or DCS; and (3) current and former DHS or DCS employees are hereby ordered by the Courtto respond to the parties’ legitimate, procedurally-authorized and legally-sanctioned discovery efforts notwithstanding contrary duties arising under T.C.A. §§ 37-1^409 and 37-1-612.
2. Any proper person to whom any information identified in ¶ 1 is disclosed under the terms of this order shall be provided a copy of this order. Such persons are directed not to reveal the contents of any disclosure for any purpose other than as permitted in this order or a subsequent order of this Court.
3. The use of any information identified in ¶ 1 for any purpose other than the preparation and trial of the above-styled case or other proceedings related to this litigation is prohibited, except as allowed by statute or modified by subsequent order of this Court.
4. In the event that documents covered by this protective order are filed with the Court, such documents shall be filed under seal. The documents shall be placed in a sealed envelope labeled as follows:
Farley v. Farley, et al., No. 2:96-0008 Documents Under Seal Pursuant to Court Order
Docket Entry No.-
The docket entry-number of this protective order shall be inserted as indicated.
5. At the conclusion of this litigation, all DHS or DCS materials produced in this case in the possession of the parties, including, but not limited to, any and all copies or facsimiles, shall be returned to the appropriate agency.
Because the Court finds that this protective order will adequately safeguard the competing interests of the parties in this case and because plaintiff has been granted herein sufficiently broad discovery authority to prosecute her claims, her request for an order permitting access to other files compiled by or associated with the individual defendants in this matter is DENIED.
It is so ORDERED.
Notes
. The ten-day filing period set forth in Rule 72(a) did not begin to run until Plaintiff was actually served with a copy of the protective order. See Fed.R.Civ.P. 72, Advisory Committee Notes, 1991 Amendment (noting that, in the most recent amendment to the rule, the initiation of the objections period for nondispositive orders had been moved from date of entry to date of service). Assuming that Plaintiff was served a copy of the order by mail on or about September 30, 1996, her filing of objections 'on October 7 was well within the ten-day period that, by federal rule, excludes intervening weekend days. See Fed.R.Civ.P. 6(a) ("When the period of time prescribed or allowed [by these rules] is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.”).
. On July 1, 1996, all functions of the Department of Human Services relating to child welfare were transferred to a new agency, the Department of Children's Services. Act effective May 21, 1996, ch. 1079, 1996 Tenn. Pub. Acts 390 (codified at various chapters, principally chapter 5, of tit. 37, Tenn.Code Ann.).
. A complete recitation of the relevant facts in this case is set forth in the Court’s memorandum of June 14, 1996. (Docket Entry No.29).
. By order entered June 14, 1996, this Court dismissed on Eleventh Amendment grounds Plaintiff's claims against the Department of Human Services and Jane Brock, a DHS supervisor, acting in her official capacity.
. T.C.A. §§ 37-1-409(b) and 37-1-612(b) are largely the same provision, except that the former ensures the confidentiality of reports of child abuse generally while the latter governs the confidentiality of reports of child sexual abuse. T.C.A. § 37-1-409(b) provides in relevant part:
Except as otherwise provided in this part, it is unlawful for any person, except for purposes directly connected with the administration of this part, to disclose, receive, make use of, authorize or knowingly permit, participate in, or acquiesce in the use of ... any information concerning a report or investigation of a report of harm under this part, directly or indirectly derived from the records, papers, files or communications of the department or divisions thereof acquired in the course of the performance of official duties.
T.C.A. § 37-H09(b) (emphasis added). As indicated by statute, the disclosure of certain information is permitted for administrative purposes only. Such purposes, including, but not limited to, cooperation with schools, child welfare agencies, law enforcement agencies, and the judicial and correctional systems, are enumerated at T.C.A. § 37-1—409(e)(2). T.C.A. § 37-1-612 contains a similar disclosure provision. T.C.A. § 37-1-612(f)(2).
. Plaintiff's boyfriend at the time of the DHS investigation. Plaintiff and Mr. Curtiss were married in June 1995.
. Although Plaintiff has primarily grounded her claims for relief in the statutory remedy provided by 42 U.S.C. § 1983, her complaint also alleges violations of Tennessee common law that she claims entitle her to additional recovery. (Compl. at ¶¶ 37--41; Docket Entry No. 1).
. Notwithstanding the fact that, because they derogate the search for truth, privileges are to be construed as narrowly as possible.
United States v. Nixon,
. There is one case,
Van Emrik v. Chemung Cty. Dept. of Social Services,
. Defined by Fed.R.Evid. 401 as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of [an] action more [or less] probable.”
. As the Court has previously held in this matter, state agencies are immunized by the Eleventh Amendment from suit under 42 U.S.C. § 1983. (Docket Entry No. 29). Because civil rights suits against state officials acting in their official capacities are merely alternative means of pleading against the state,
Will v. Michigan Dept. of State Police,
. In recognition of the fact that alleged offenders have a procedural due process interest in contesting the validity of child abuse allegations, the General Assembly has also authorized administrative regulations permitting review, at the request of the alleged perpetrator, of abuse allegations by the commissioner of children's services. T.C.A. §§ 37-1-409(e)(1), 37-1-612(f)(1); Tenn. Comp. R. & Regs, title 1240, chs. 7-9-.04, 05 (1988). The Court does not consider these administrative provisions in the waiver context because their invocation does not lead to any-diminution in confidentiality. While the alleged offender may seek administrative review of the report lodged against him, in such circumstances DCS regulations grant access to abuse records only to agency officials, not the alleged perpetrator. The alleged offender is merely afforded notice that he has the right to ex parte review of his case with the possibility to appeal the commissioner's determination to an administrative hearing officer. Tenn. Comp. R. & Regs, title 1240, chs. 7-9-.04(3), .05(3) (1988).
. The First Amendment standard derived by the Supreme Court in cases where information is obtained and its dissemination restricted pursuant to court order is comprised of two inquiries:
[Wjhether the "practice [giving rise to discovery] [furthers] an important or substantial governmental interest unrelated to the suppression of expression” and whether "the limitation of First Amendment freedoms is no greater than is necessary or essential to the protection of the particular governmental interest involved."
Seattle Times,