This matter involves the charges of aggravated sexual assault by five juveniles upon one female victim. The five cases are still in the pre-trial stages and one issue is whether statements regarding the events in question to school authorities before complaints were signed are "confidential" under state and federal statutes and if so whether an accused can gain access to any records of any statements in preparation of his defense.
Prior to trial, co-defendant, L.P., subpoenaed the high school principal, Charles Stein, and two guidance counselors, Castaldo and Longo, of the Monroe Township High School that the victim and all defendants attend. The subpoenas duces tecum sought, among other requests, any and all written statements or notes taken by these school employees from the alleged victim, T.M., defendant, L.P., or any other individuals interviewed as part of the school's investigation of the incident in question. Similar subpoenas were subsequently issued to a third guidance counselor Rockoff and school psychologist Licata, the latter having met with victim T.M.
Before complaints were filed on November 1, 1990, the events of October 16, 1990 were being discussed at school and the three guidance counselors interviewed several students concerning these events. Among those interviewed were the victim and five co-defendants. Guidance counselor Longo was present only for interviews involving the boys as they were also members of the school football team to which he is a coach. He made no notes. Guidance counselor Rockoff made no written notes during the course of the interviews that she sat in on. Accordingly, there were no notes from either of those people to be considered.
The guidance counselors were represented by counsel who appeared in order to present state or federal regulations which could either prevent any one of them from testifying, bar testimony as to certain matters, or bar the production of
subpoenaed materials. Counsel for the Monroe Township Board of Education, in protecting its interests and those of the principal, also appeared in order to be certain that the New Jersey Administrative Code, in particular N.J.A.C. 6:3-2.6(a)4 is followed with regard to any records which may be furnished by Monroe Township personnel. N.J.A.C. 6:3-2.6(a)4 concerns a three day notice requirement prior to the disclosure of any pupil records.
Defense counsel do not seek any of the pupil records of the juveniles. They seek records of any statements by way of admission or otherwise which may have been made to school counselors.
As a result of an in camera inspection of the notes of counselor Castaldo, this court finds her notes to have been information recorded solely as a memory aid for the counselor's behalf in order to recall specifics of the interviews. The notes are not pupil records but they are protected.
Title 6, Subchapter 6 of the New Jersey Administrative Code deals with substance abuse in schools, and guidance counselor Castaldo claims that her notes fall within its purview as she has interviewed the students in her role as a substance abuse counselor. The court finds that guidance counselor Castaldo had conducted the interviews in this capacity.
N.J.A.C. 6:29-6.3(b)(2) requires that district boards of education, "in adopting and implementing policies and procedures for the evaluation, intervention and referral to treatment of alcohol or other drug-affected pupils, provide for compliance with federal guidelines as to the confidentiality requirements established in Federal regulations found at 42 C.F.R. Part II." 42 C.F.R., Subsections 2.1(a) and 2.2(a), require that patient records shall be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under the Federal Code. Sections 2.1(b)(2)(c) and 2.2(b)(2)(c) provide that whether or not there is patient consent, the contents of such record may be disclosed:
(c) If authorized by an appropriate order of a court of competent jurisdiction granted after application showing "good cause" therefore. In assessing good cause the court shall weigh the public interest and the need for disclosure against the inquiry to the patient, to ...