Chapter 35A GALs and Access to Records Held by Third Parties by Timothy Heinle

When an incompetency proceeding is filed pursuant to Chapter 35A of the North Carolina General Statutes (“Ch. 35A”) alleging that an adult is incompetent, that adult—known as the respondent in the proceeding—is entitled to be represented by counsel of their own choosing or by an attorney who is appointed as the respondent’s guardian ad litem (“GAL”). G.S. 35A-1107. To fulfill their duties, GALs may need access to records held by third parties, including, for example, medical and mental health providers. Common misconceptions exist, however, about a Ch. 35A GAL’s authority to obtain access to such records, and GALs must be mindful of any applicable legal requirements and their professional and ethical duties as licensed attorneys in North Carolina. The types of records and the corresponding confidentiality and disclosure requirements for each are too vast to fully explore here. Instead, this post examines the authority of the GAL to access records held by third parties generally and offers a framework for navigating these issues. (Two notes about this post: First, the analysis in this post is limited in scope to the period prior to an adjudication of incompetency and does not consider the effect that an adjudication of incompetency and appointment of a guardian has on a GAL’s access to records. Second, be aware that the procedures discussed in this post also apply to minors who are emancipated or who are at least 17 ½ years of age. G.S. 35A-1101(7), (8). For ease of reading, this post uses “adult” to refer to both groups of minors and adults.) Why a GAL may need access to records held by third parties A GAL appointed to represent a respondent in an incompetency proceeding has two primary roles. First, the GAL must meet with the respondent to make all reasonable efforts to determine the respondent’s wishes regarding incompetency and guardianship before presenting those wishes to the clerk. G.S. 35A-1107(c). Second, the GAL may make recommendations to the clerk concerning the respondent’s best interests if those interests differ from the respondent’s express wishes. Id. To fulfill these duties, a GAL may seek to obtain records held by third parties. The information contained in these records may serve multiple purposes. For example, the GAL may offer the records into evidence if the records tend to prove or disprove an allegation in the petition (including the question of the respondent’s competency) or to address the guardianship arrangement that is in the respondent’s best interest. The records may also give the GAL a fuller understanding of the respondent, including the respondent’s personal, medical, financial, and social history and needs. Being well informed and prepared with evidence enables the GAL to be a zealous advocate for the respondent. Therefore, GALs need to know how to properly obtain third-party records. What does Chapter 35A say about a GAL’s access to third-party records? Chapter 35A is silent as to a GAL’s authority to access records in an incompetency proceeding, including those records held by third parties. See G.S. 35A-1107 (describing a GAL’s role without reference to records); G.S. 35A-1101(6) (defining GAL without reference to records access); G.S. 35A-1130(c) (providing for a GAL in restoration proceedings without reference to records access). A GAL is defined as a guardian appointed pursuant to G.S. 1A-1, Rule 17 of the North Carolina Rules of Civil Procedure (G.S.35A-1101(6)); however, Rule 17 is similarly silent as to the authority of a GAL to access records. Ch. 35A’s silence stands in contrast to the language found in statutes that govern some other proceedings where GALs are expressly granted the authority to access records. See, e.g., G.S. 7B-601(c) (GALs for juveniles in abuse, neglect, or dependency matters have “the authority to obtain any information or reports, whether or not confidential, that may in the [GAL’s] opinion be relevant to the case”); G.S. 7B-1108 (containing similar authorization for GALs for juveniles in termination of parental rights proceedings). Given Ch. 35A’s silence on this issue, there must be some other provision of law that authorizes the GAL to lawfully obtain access to third-party records. The appointment of a GAL by the court to represent the respondent does not alone authorize the GAL to access records on behalf of the respondent. Professional and ethical considerations Some Ch. 35A GALs and third-party record holders may mistakenly believe that GALs are entitled to records by virtue of their appointment as GAL for the respondent. Ch. 35A GALs must be mindful of their professional and ethical duties, being careful not to misrepresent their authority to access certain information based solely on their appointment as GAL. Misrepresentation may include affirmative statements that are false, such as explicitly stating that the GAL has a right of access to information that they do not in fact have. Misrepresentation may also include the omission of information that leads the record holder to believe the GAL has a right of access that does not exist—for example, stating that, as the appointed GAL, this confidential information is needed to fulfill the duties of their role. See N.C. Rules of Prof’l Conduct R. 4.1 (“[A] lawyer shall not knowingly make a false statement of material fact or law to a third person.”); N.C. Rules of Prof’l Conduct R. 4.1 Cmt. [1] (“A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”); N.C. Rules of Prof’l Conduct R. 8.4(c) (“It is professional misconduct for a lawyer to…engage in conduct involving dishonesty, fraud, deceit or misrepresentation”); N.C. State Bar, RPC 236 (1997 opinion) (a lawyer may not issue a subpoena that contains misrepresentations as to a lawyer’s authority to obtain certain evidence); N.C. State Bar, Formal Ethics Opinion 2 (2010) (opining that a lawyer may not misrepresent to a third party that the third party must comply with an unenforceable subpoena, and, where the subpoenaed party produces records in response, a lawyer may not utilize the records in the proceeding). Determining whether and how a GAL may obtain access to third-party records As Ch. 35A does not confer access to third-party records on a GAL, other factors determine whether the GAL is able to obtain access to such records. For example:

• whether the record is a public record;
• whether the record is subject to any confidentiality laws;
• whether any applicable confidentiality laws contain an exception that would authorize disclosure of the records to the GAL (e.g., does the law authorize a respondent who has capacity to consent to the release of the records to the GAL?);
• if disclosure is not otherwise authorized, whether a subpoena is sufficient to allow the record holder to disclose the records to the GAL, or whether a court order is needed.

Public records Public records are any record, “regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government.” G.S. 132-1(a). A GAL may seek to obtain access to a public record that is potentially relevant to the GAL’s representation of the respondent. For example, a vital record, such as a marriage or divorce certificate documenting the legal relationship between the respondent and a petitioner, may be relevant. Alternatively, a property record, such as a deed or a mortgage, may be relevant at a hearing to determine the need for a guardian of the estate. Public records are accessible by a GAL the same as they are by anyone else, regardless of whether the record pertains to the respondent or some other person, event, or thing. See G.S. 132-6. Numerous exceptions exist that may limit access to agency records that otherwise qualify as public records, however. See, e.g., certain records related to criminal investigations (G.S. 132-1.4) and law enforcement agency recordings, like body-warn camera footage (G.S. 132-1.4A). Some public records may also be withheld from public access due to limitations imposed by state or federal confidentiality laws. GALs should be able to obtain access to a public record without the need for a subpoena or court order. Any applicable confidentiality laws—and the government entity acting as the record holder—will likely require a process for a GAL to request access to a public record. However, unless disclosure is otherwise prohibited, these entities are generally required to disclose public records regardless of the form in which the request is made. See G.S. 132-1(b); G.S. 132-6. GALs seeking to obtain access to public records should be mindful of the procedures for obtaining such records under any applicable laws, and should be mindful that, depending on the type of record the GAL is seeking to obtain access to, processing times may vary. Confidential records that may be disclosed to a GAL or a respondent under an exception in the governing laws Confidential records may sometimes be disclosed to a GAL or a respondent if an exception in the governing laws applies. For example, consider confidential medical records about the respondent. So long as the respondent has the capacity to consent to the release of their own records, the respondent can consent to the release of records to the respondent or to the GAL. The GAL may assist the respondent in obtaining and executing any necessary release forms and delivering them to the provider. Alternatively, some respondents may be capable of obtaining the records on their own and providing them directly to the GAL. In all cases, the GAL should consider whether the respondent has the capacity to consent to the release before asking the respondent to do so. (For a discussion of the principles of obtaining client consent generally, see Part 1 of Creating Release of Information Forms for Use by Multidisciplinary Teams: Disclosure of Health, Mental Health, Social Services, and Substance Use Disorder Information with Client Consent, a bulletin published by my colleagues Kristi Nickodem, Mark Botts, and Kirsten Leloudis.) Difficult questions sometimes arise about a GAL’s ability to obtain records related to the respondent that are held by a county department of social services (DSS), including those related to the administration of child and adult protective services. The laws governing confidentiality and disclosure of DSS records are too vast to address here. See, e.g., G.S. 108A-80; G.S. 7B-302; G.S. 7B-2901. For purposes of this post, it is sufficient to say that (i) the respondent may be entitled to certain records held by DSS (e.g., 10A NCAC 69 .0301, 10A NCAC 71A .0803), and (ii) it is unclear whether the GAL qualifies as a representative who can act on behalf of the respondent when accessing these same records (see definition of “client” in 10A NCAC 69 .0101). For that reason, if the respondent is unable to obtain the records directly, the GAL should likely seek to have the clerk presiding over the incompetency proceeding enter a court order that requires DSS to release the records to the GAL. (More discussion on obtaining a court order for the disclosure of records follows below. For more on DSS records confidentiality and disclosure, see Chapter 14 of the Abuse, Neglect, Dependency, and Termination of Parental Rights Manual; see also Disclosing Adult Protective Services Information: The Legal Framework and a New Flowchart – On the Civil Side, by Kristi Nickodem.) Confidential records that cannot be disclosed to a GAL or a respondent under an exception in the governing laws In some circumstances, a Ch. 35A GAL may not be able to rely on the consent of a respondent to obtain confidential records that are of interest to the GAL. For example, consider a respondent who lacks the capacity to consent to the release of her own medical or mental health records, which are maintained by a third-party provider. Or maybe the respondent does have the capacity to consent to disclosure but refuses to do so. In these scenarios, a Ch. 35A GAL may consider issuing a subpoena or obtaining a court order entered by the clerk requiring disclosure of the records to the GAL. (A GAL would also likely consider these same mechanisms to obtain access to confidential records that are about someone other than the respondent – e.g., medical or mental health records about the petitioner.) A GAL may issue a subpoena pursuant to Rule 45 of the North Carolina Rules of Civil Procedure, commanding the recipient to produce the records to some place or person by a certain date and time. G.S. 1A-1, Rule 45. For some records, a subpoena will be sufficient to authorize disclosure of the records to the GAL (e.g., copies of a police report from a closed investigation into an incident at the respondent’s home). Some confidentiality laws, however, prohibit disclosure of records in response to a subpoena, and instead authorize the disclosure of records only where the records holder is served with a court order that satisfies other requirements under the law. For example, substance use disorder records may only be disclosed to comply with a court order that finds good cause for the disclosure (which includes a determination that other methods of obtaining the records would be ineffective and that the public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient privilege, and the treatment program). 42 C.F.R. § 2.64. Federal law also requires that the order to disclose substance use disorder records be narrowly tailored, further limiting a court’s authority to order disclosure. Id. Where a subpoena is insufficient, a GAL should seek to have the presiding clerk enter a court order requiring disclosure of the records to the GAL. Any additional requirements regarding notice or other procedures that are imposed by the applicable confidentiality laws will need to be complied with. See, e.g., substance use disorder records under 42 C.F.R. § 2.64 (requiring that any judicial review of the records be made in camera, and that the patient and the record holder be given adequate notice and opportunity to file a written response or to appear in person regarding the issuance of the court order). A GAL should be prepared to show compliance with the applicable confidentiality laws, and to make arguments regarding any determinations the court must make before ordering disclosure. Other types of records (e.g., health and mental health records) are also commonly relevant in an incompetency proceeding, meaning a GAL may seek to obtain access to these records as well. The requirements for disclosure of these records varies depending on the nature of the records, the form of the request, and other factors. For a discussion of health records and HIPAA (the Health Insurance Portability and Accountability Act) under 45 C.F.R. Parts 160 and 164, and for an overview of mental health records confidentiality and N.C. General Statutes Chapter 122C, see Chapter 14 of the Abuse, Neglect, Dependency, and Termination of Parental Rights Manual. For an analysis of subpoenas and health department records, see School of Government Health Law Bulletin #82 (2005). A suggested approach for GALs For the reasons discussed above, it is important that a GAL seek a court order when one is necessary to obtain access to third-party records, and that any procedural requirements (including notice and judicial determinations) be satisfied. Some record holders may file a motion to quash or an objection in response to a subpoena – and some may choose to not respond at all. Similarly, if a record holder receives an order but the requirements for an order were not followed, the record holder may file a motion to set aside the order. This may happen, for example, where a record holder is entitled to advanced notice and an opportunity to be heard, but notice and an opportunity were not provided. These outcomes mean a delay for the GAL in obtaining access to the records, which may lessen the GAL’s ability to prepare for trial, to offer evidence that support the respondent’s express wishes, and to make recommendations regarding the respondent’s best interests. Instead, a GAL should consider doing each of the following:

• Issue a subpoena.
• File a motion seeking an order to produce records.
• Schedule a hearing on the motion with the clerk and set compliance under the subpoena for the same day, time, and location as the hearing on the motion (e.g., at the clerk’s office on February 1 at 10:00 a.m.).
• Serve copies of the subpoena and the motion along with the notice of hearing on any necessary parties.

This approach provides advanced notice to all affected parties and offers a single forum for all issues to be addressed before the clerk. Doing so increases the likelihood of the GAL obtaining access to the records, and reduces the delay caused by multiple hearings. Conclusion A GAL appointed pursuant to Ch. 35A is not granted access to third-party records by virtue of their appointment alone. Instead, a GAL’s access to records depends on the nature of the records and any applicable confidentiality laws. A court order requiring disclosure of the records is often the surest way to ensure the GAL has access. Reach out to me at Heinle@sog.unc.edu if you would like to discuss the issues raised in this post. Although my First Seven Days as a Parent Defender guide was published for attorneys who defend parents in juvenile matters, Ch. 35A GALs may find the appendices related to client and patient records useful too.