Responding to subpoenas - advice

This advice provides information regarding responding to subpoenas.

Document ID number 2221, version 5, 8 December 2017.

Introduction

See procedure Responding to subpoenas for actions that must be undertaken.

A subpoena is an order issued by a court that takes the form of a legal document which requires:

  • the production of a file
  • a person to give evidence in court or
  • both.

The word 'subpoena' means 'under penalty' and a failure to comply with a subpoena may result in a penalty being imposed by the Court. A subpoena may also be called a 'witness summons' or 'summons'. All three documents have the same legal effect.

Compliance with a subpoena

Compliance with a subpoena involves a two-stage process:

  1. Production of the required documents to the Court or attendance at the Court to give evidence. This is mandatory.
  2. The court releasing those documents to a party or requiring information to be given (by way of oral evidence) to a party. This stage is discretionary.

It is open to a person served with a subpoena to seek leave of the Court to object to:

  • the documents being provided to a party or
  • having to answer questions put by a party, on certain grounds.

Responsibility for responding to subpoenas

Subpoenas are served on the department at central office and in divisional offices. If the subpoena requires production of child protection records that relate to an open file or a file that has been closed for less than three months, the division/area staff are responsible for responding to the subpoena. If the records relate to a file that has been closed for more than three months and the records are held in archives, the Child Protection Information Release Team will respond to the subpoena (phone 9096 7011 or childprotectionsubpoenaunit@dhhs.vic.gov.au).

Content of a subpoena

A subpoena is addressed to a particular person whose name and address is shown on the subpoena. If that person is required to produce documents, the documents are specified so that they can be identified and produced. Sometimes the subpoena may identify only certain documents and other times the subpoena will request all files and documents in the person's possession. The subpoena will require the production of documents and/or attendance to give evidence at a named court, such as a Magistrates' Court or the Family Court, and will give the address of the specified court.

The date by which the documents must be produced or on which evidence is to be given is also shown. The registrar of the court must receive the files by the production date. The subpoena must be read carefully for this date as there is some variation between jurisdictions.

The subpoena will normally indicate who the parties to the dispute are and the name of the law firm that obtained the subpoena (if the subpoena was not sought personally by one of the parties). A covering letter from the law firm often accompanies the subpoena and may explain what is required by the subpoena; however, it is the information in the subpoena that is the authoritative description of what needs to be produced to the court.

From the information on the subpoena, it should be clear what is required to ensure that the department complies with the subpoena. If some minor clarification of the subpoena is required, the first step should be to contact the law firm that obtained the subpoena and seek clarification. However, if the issue regarding the clarity of the subpoena is complex, then the practitioner should seek legal advice from the divisional solicitor or Legal Services.

As the documents have been subpoenaed by a court, the department is technically obliged to release, to the court, every document listed in the subpoena schedule in its entirety. It is not the role of a departmental employee to decide what information is deemed relevant to the proceedings, as the court has ordered the release of all the infomration. It is the department's practice to redact protected information from the copy of the file the parties may view. The unredacted version of each affected page must also be provided to the court. These unredacted pages are to be placed in a sealed envelope, marked "ENVELOPE NOT TO BE OPENED EXCEPT AT THE DIRECTION OF A JUDGE OR FEDERAL MAGISTRATE". It is then up to the discretion of the court who, if anyone, the documents might be released to.

Service of a subpoena

The department is entitled to reasonable notice to determine whether to object to a subpoena and to locate the documents. Unfortunately, subpoenas are often issued within a matter of days of the date of compliance, and courts tend only to provide a short extension if one is requested. A subpoena is a court order and must be complied with and anyone from the department involved in trying to comply with the subpoena must do their best to provide the documents or give evidence even though very little notice is provided.

In the event that it is impossible to comply, the first step is to contact the court that issued the subpoena to seek an extension, and propose an alternative and realistic date. In some circumstances the Court may direct the department to contact the law firm (or other party) that sought the subpoena and explain the situation.  

Preparing the response to a subpoena

Most subpoenas that require production of child protection documents relate to files and a print out of the CRIS records is required. However, the wording of the subpoena needs to be carefully checked and followed. Where the subpoena indicates 'any records' or 'all records' held by the department, this includes the entirety of the department's records, including hard copy files, printout from CRIS and email records. All documents covered by the subpoena should be compiled.

In instances where the schedule of the subpoena calls for all documentation, the child protection practitioner responsible for producing the documents, should contact the issuing party to negotiate limiting the scope of the schedule. Producing  key documents from CRIS only helps the department to meet the production date whilst still providing the parties with ample information. Lawyers generally oblige in this request. The recommended schedule is as follows:

  • Intake & closure documents
  • First visit case notes
  • Responsible for harm assessments and substantiation decisions
  • Transfer summaries
  • Case plans
  • Case planning meeting minutes
  • Court reports
  • Section 38 consultations
  • Any external assessment reports the department has commissioned

Very occasionally, an open file will have some parts of the file stored with the department's archives. The child protection practitioner should liaise directly with the Child Protection Information Release Team if the file or part of the file is located in storage. The Child Protection Information Release Team or archives will send the part to the practitioner to facilitate production of the complete record.

Objecting to a subpoena

It is possible to object to a subpoena on the basis that production of the requested documents would be contrary to law. Objections of this nature are rare. The question of objection is complex. Grounds for objecting include:

  • relevance – the party requesting the documents needs to be able to demonstrate that it is reasonably possible that production of the documents will materially assist them in pursuing their claim or defence
  • width – it is difficult or impossible to ascertain with precision what is being requested
  • oppression – it would be extremely burdensome (that is, it would require much time and expense) to produce an extraordinary amount of documents. In general any file where the documents required to be sent are more than 500 pages child protection practitioners should consider contacting the person or firm who issued the subpoena and negotiate the scope of the material sought
  • public interest immunity – as the term implies, it would be contrary to the public interest to disclose the documents e.g. where a document discloses the identity of a police informer or undercover police operative
  • legal professional privilege – documents that disclose confidential communications between a lawyer and their client in the course of providing legal advice.

Where the view is formed that production of documents might be contrary to law, and you have sought and obtained your manager’s agreement, then Legal Services should be consulted immediately about the process of objecting to a subpoena.

An alternative to formally objecting to the production of documents that would otherwise be prohibited by law is removal of the offending material and placement of it in a separate sealed envelope that is marked with a request that the documents contained in the envelope not be released and the reason why these documents are sought not to be released, including any legislative provisions. See procedure Responding to Subpoenas for tasks that must be undertaken.

Examples of information that should be dealt with in this manner include:

  • details that could identify a reporter where the reporter has not consented to such disclosure (ss. 41 and 191 CYFA)
  • documents prepared for the purpose of obtaining or providing legal advice (s. 199 CYFA), including any emails between child protection practitioners and Legal Services (as they attract legal professional privilege).
  • court reports prepared for the Children’s Court where they have been subpoenaed by parties who were/are not parties to the Children's Court proceedings (s. 552 CYFA)
  • conciliation conference (CC) evidence should be removed under s. 226 CYFA
  • information which needs to be protected for serious safety reasons (for example, the new address of a victim of domestic violence). This information is removed as a departmental policy decision only and does not have any backing in legislation, so must be used sparingly.
  • In criminal proceedings only, any communications between a victim of sexual abuse and any Doctor or Counsellor must be removed under s.32C Evidence (Miscellaneous Provisions) Act 1958 (unless the court has granted leave for this information to be released).

What material should be placed in a separate sealed envelope may depend on the type of proceedings and the court requesting the material. A subpoena from the Children's Court seeking the child's file who is the subject of the proceedings before the Court may only need to have minimal material placed into the sealed envelope. Generally court reports, psychiatric reports relating to individuals involved with the child, toxicology reports and national police history checks should not normally be placed in a sealed envelope in this scenario. However, in cases where the subpoena is to produce the file in another court this material should normally be placed in a sealed envelope.

Process required if a subpoena is received for other matters other than child protection files

Sometimes subpoenas may be received relating to other areas within the department, for example a psychiatric file subpoena, workcover subpoena, or a youth justice file. If a practitioner receives a subpoena of this type they should contact the department's Legal Services.

Considerations for good practice

  • Always action subpoenas promptly as there is often only a short time allowed by the court or tribunal to process them.
  • Child protection practitioners should read the subpoena carefully to ensure that it has been served at the correct address and to determine exactly what is required.
  • Where the schedule of the subpoena calls for all documentation, contact the issuing party and attempt to scope the schedule down to the list of key documents listed in the recommended schedule.
  • Child protection practitioners should make a note on CRIS of the time and day that the subpoena was received and the date of compliance and register the subpoena in TRIM.
  • Even if the department is served a subpoena with very short timelines, it should make best endeavours to comply with the subpoena.
  • Child protection practitioners should read the file thoroughly and familiarise themselves with the contents of the file in case the department wish to consider objecting to the production of the file or individual documents in the file.
  • Child protection must retain the original documents and provide a copy of these documents only.
  • Always include a detailed covering letter when sending documents to court (contact the Child Protection Information Release Team on 9096 7011 or childprotectionsubpoenaunit@dhhs.vic.gov.au for an up to date template).

Related procedures

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