dissenting.
I respectfully dissent.
In my view, under the circumstances of this case, Code § 63.1-248.5:1(C) does not contemplate unfettered discretion in the trial court to release a copy of the records of the investigation conducted by a local department of social services of an “unfounded report or complaint” of child abuse or neglect. Here, the release of such records upon the mere filing of a petition by the person who was the subject of such report or complaint and the trial court’s in camera review of the agency’s investigative report necessarily involves the exercise of unfettered discretion.
Code § 63.1-248.5:1(C) permits a trial court to release a copy of the records of the investigation of an unfounded report or complaint of child abuse or neglect where the petitioner seeking release of such records “specifically set[s] forth the reasons [he] believes such report or complaint was made in bad faith or with malicious intent.” However, before providing the petitioner with a copy of the records of the investigation, the trial court must first “determine[] that there is a reasonable question of fact as to whether the report or complaint was made in bad faith or with malicious intent and that disclosure of the identity of the complainant would not be likely to endanger the life or safety of the complainant.”
Thus, the legislature has placed on the petitioner the burden of establishing the existence of “a reasonable question of fact,” and where, as here, the agency responsible for the investigation affirmatively denies the allegations of the petition, that burden plainly must require more than the mere allegation of bad faith or malicious intent in the petition. A report or complaint ultimately determined to be unfounded is not necessarily one made in bad faith or with malicious intent. Indeed, the “reasonable question of fact” to be determined pursuant to Code § 63.1-248.5:1(C) involves a resolution of this distinction in addition to a determination whether disclosure of the identity of the complainant would not be likely to endanger the safety of the complainant. Similarly, the petitioner’s burden, particularly the required showing that disclosure of the identity of the complainant would not likely endanger the life or safety of the complainant, cannot be met solely by the content of the investigative report even if reviewed in camera by the trial court. In short, where the petition is opposed and there is no evidentiary hearing, the trial court has no *406foundation upon which to exercise the judicial discretion contemplated by the statute in question.
The agency having custody of the investigative report must, for obvious reasons, act in the interests of the complainant, the discovery of whose identity is the object of the petition. If a petitioner is permitted to avoid an adversarial hearing by declining to exercise his “right” to present evidence in support of his petition or the agency is not permitted to present evidence in support of its opposition to the petition, the agency is deprived of any realistic opportunity to protect the interests of the complainant. Such a result is, in my view, inconsistent with the statutory purpose to encourage reports of child abuse and neglect. In addition, the danger is real that complainants will be subjected to unwarranted exposure to frivolous civil lawsuits which will inevitably have a chilling effect on reporting of suspected child abuse and neglect by the public. Cf. Ayyildiz v. Kidd, 220 Va. 1080, 1082-83, 266 S.E.2d 108, 110-11 (1980); Niese v. Klos, 216 Va. 701, 703, 222 S.E.2d 798, 800 (1976) (malicious prosecution actions disfavored because of chilling effect on reporting of crimes by public).
Accordingly, I would reverse the judgment of the trial court and remand the case to permit the petitioner to produce independent evidence in support of his allegation, or, should he decline to do so, for dismissal of his petition with prejudice.