Lawmakers Focus On Audio Recording Rules For CPS Workers

Thursday afternoon, the House Subcommittee on Human Services moved a bill to allow Child Protective Services (CPS) workers to record audio of their investigations.

CPS workers would have to be granted a court order or have the informed consent of the individuals being investigated for abuse or neglect to record their investigation.

Lawmakers expressed concerns about the possible impacts of House Bill 2542, ranging from privacy and accountability to the possibility of an abuse or neglect investigation being delayed because the CPS worker is seeking a court order to be permitted to record instead of investigating the case.

Del. Jonathan Pinson, R-Mason, asked about the protocol for law enforcement’s body cameras and why a CPS worker would need to obtain a court order or informed consent to record.

An unidentified speaker from legislative counsel answered, citing some precedent in national cases dealing with an individual’s expectation of privacy.

“Essentially, it comes down to a balancing test of transparency versus that expectation of privacy,” Counsel said. “The court has largely held that that that the interest in transparency in police work, for lack of a better word, sort of outweighs that expectation privacy, especially in a time and, this kind of borrowing court language, especially in a time where accountability of police is is at the forefront of society’s conversations. So with CPS workers acting as agents of the state, arguably that same notion, that same rhetoric, would apply.”

Del. Anitra Hamilton, D-Monongalia County, asked counsel to clarify the intent of the bill since CPS workers are not currently prohibited from recording their investigations.

Counsel said he did not know of any current law preventing CPS workers from audio recording and that the bill was meant to clarify in state code that the option exists.

Hamilton asked counsel who would have access to the recordings and if that evidence would be permissible in court proceedings.

“The committee substitute calls for the audio recordings to be stored for the duration that the case is open, the case file is open as far as any oversight or the ability for those recordings to be subpoenaed, that would be set by department policy, “ counsel said.

Hamilton also expressed concerns about the cost of audio recording equipment and possibly adding more to overworked CPS workers’ plates.

“One of the concerns that was brought to my attention is that if it would bring an undue burden, then we would have less Social Workers applying for this position, which would further cause a hardship which we already have, you know, a burden with social workers,” Hamilton said. “I mean, with CPS workers.”

Pinson asked counsel why a court order or informed consent would be necessary in West Virginia since it is a one-party consent state, meaning one person can legally record a conversation without telling the other person.

Before a voice vote, Pinson said the bill isn’t perfect, but he doesn’t want the legislation to lose momentum and recommended it pass.

“If this committee were to vote down this bill today, some of the questions, some of the opportunities that this bill presents are going to be lost, so for that reason, I would urge passage of the bill, and we’ll continue to work on it as it makes its way through the process,” Pinson said.

The committee substitute removed language mandating audio recording during CPS investigations and interactions, opting instead for language “permitting” audio recording.

After some discussion, lawmakers reported the committee substitute for House Bill 2542 to the standing committee with the recommendation that it do pass.