Responding to motions to produce DSS confidential records:

From time to time, my office will receive a motion from a criminal defense attorney to repoduce confidential child welfare records. The thrust of the motion will usually entail explaining the nexus between the records and the potentiality of those records to reveal exculpatory information about the defendant. The North Carolina Criminal Proceedure Act, particularly through G.S. 15A-903 provides that a defendant in a criminal case is entitled to the law enforcement files involved in the investigation of the alleged crimes committed, including those from  “prosecutorial agencies.”  The term, “prosecutorial agency” is defined at 15A-903 as  “. . .any  public or private entity that obtains information on behalf of a law enforcement agency or prosecutor in connection with the investigation of the crimes committed or the prosecution of the defendant.” However, it is important to understand that the term is not as broad as may first appear. For example, the term does not encompass the North Carolina Attorney General's Office or its files, except in very limited circumstances. See State v. Sexton, 352 N.C. 336, 532 S.E.2d 179 (2000). Likewise, a county department of social services is not necessarily an entity that would fall within the reach of the definition of prosecutorial agency absent more than a Defenmdant's assertion of the same.  In order to meet the necessary burden, the Defendant must produce some evidence that agency records are in some way a component of the prosecution file or that the agency, through its employees, acted in the capacity of a prosecutorial agency other than merely contacting law enforcement who then conducted their own investigation and generated their own evidence. Without such evidence, no prosecutorial agency status can be conferred and the defendant is not entitled to the records   requested.  State v. Pendleton, 175 N.C. App. 230, 622 S.E.2d 708 (2005).