Wisconsin Attorney General Opinions

Opinion # OAG 22-80

2 April 1980

Public Assistance; Public Records;
Because records concerning AFDC recipients
are confidential, only the amounts of monthly
payments made to AFDC recipients, together
with their names and addresses, may be
released to the Department of Revenue by the
Department of Health and Social Services.

AFDC recipients must be notified when
such information is released.

DONALD E. PERCY, Secretary
Department of Health and Social Services

You indicate that it is the desire of the
Department of Health and Social Services and
the Department of Revenue to engage in an
information-sharing program whereby your
Department would receive information which
would help enable it to determine whether
AFDC applicants have failed to inform it of
income that was reported on their Homestead
Tax Credit applications.

The Department of Revenue, in turn, would
receive information which would help enable
it to determine whether AFDC recipients have
filed fraudulent Homestead Tax Credit
applications.

This information would be exchanged
through a computer match.

Information provided by the Department of
Revenue to your Department would consist
of income information contained on
Homestead Tax Credit applications.

69 OAG 95 96 97 98 99 100 101 102 103

You raise no question concerning the legality
of the release of this information.

Federal and state welfare statutes and
regulations do not prohibit the Department
of Health and Social Services from attempting
to obtain such information.

Information provided by the Department of
Health and Social Services to the Department
of Revenue would include the name and address
of the person receiving AFDC and of that
person's spouse, their social security
numbers, the date when the person was
first found eligible to receive AFDC,
the amount of assistance granted,
and the county granting assistance.

You ask whether release of such information
concerning AFDC recipients to the
Department of Revenue is permissible
under Section 49.53, Stats., which
provides in material part that:

49.53(1)

   Except as provided under Subsection
   49.53(2), no person may use or disclose
   information concerning applicants and
   recipients of. . aid to families with
   dependent children . . for any purpose
   not connected with the administration of
   the various listed welfare programs. . .

49.53(2)(a)

   Each county agency administering aid to
   families with dependent children and
   each official or agency administering
   general relief shall maintain a monthly
   report at its office showing the names
   and addresses of all persons receiving
   such aids together with the amount
   paid during the preceding month. . .

69 OAG 95 96 97 98 99 100 101 102 103

49.53(2)(b)

   Such report shall be open to public
   inspection at all times during regular
   office hours . . . Within 72 hours after
   any such record has been inspected, the
   agency shall mail to each person whose
   record was inspected a notification of
   that fact and the name and address of
   the person making such inspection.

   The agency shall keep a record
   of such requests.
 

49.53(2)(c)

   It is unlawful to use any information
   obtained through access to such report
   for political or commercial purposes.

For the reasons which follow, it is my
opinion that only the amounts of monthly
payments made to AFDC recipients together
with their names and addresses may be
released to the Department of Revenue.

In order to release additional information,
it would be necessary to secure an amendment
to Section 49.53, Stats., or to the state
plan for the administration of one of the
welfare programs (including the AFDC
program) listed in 45 C.F.R. Section
205.50(a)(1)(i)(A) (1979).

An analysis of related federal enactments
provides a useful starting point from
which to respond to your inquiry.

Prior to August 9, 1975, 42 U.S.C. Section
602(a)(9) would have permitted release of
this information, since release was
authorized to:

(A) public officials who require such
    information in connection with their
    official duties, or

(B) other persons for purposes directly
    connected with the administration of aid
    to families with dependent children.

See Public Law No. 93-647.

Senate Report No. 93-1356, which accompanies
Pub. L. No. 93-647, seems to indicate that
the phrase "directly connected with the
administration of" is to be construed
broadly:

As a further aid in location efforts,
welfare information now withheld from
public officials under regulations
concerning confidentiality would
be made available by the Committee bill:
this information would also be available
for other official purposes.

The current regulations are based on a
provision in the Social Security Act
which since 1939 has required State
programs of Aid to Families with
Dependent Children to

  "provide safeguards which restrict
   the use or disclosure of information
   concerning applicants and recipients
   to purposes directly connected with
   the administration of Aid to Families
   with Dependent Children."

69 OAG 95 96 97 98 99 100 101 102 103

This provision was designed to prevent
harassment of welfare recipients.

The Committee bill would make it clear
that this requirement may not be used to
prevent a court, prosecuting attorney,
tax authority, law enforcement officer,
legislative body or other public
official from obtaining information
required in connection with his official
duties such as obtaining support
payments or prosecuting fraud or other
criminal or civil violations.

[1974] U.S. Code Cong. & Ad News 8152.

Congress again amended the statute almost
immediately after Public Law No. 93-647
had been enacted.

42 U.S.C. Section 602 now provides that:

(a) A state plan for aid and services to
    needy families with children must. .

(9) provide safeguards which restrict the
    use of disclosure of information
    concerning applicants or recipients to
    purposes directly connected with

(A) the administration of the plan of
    the State approved under this
    part . . or other listed federal
    welfare statutes,

(B) any investigation, prosecution, or
    criminal or civil proceeding,
    conducted in connection with
    the administration of any
    such plan or program, and

(C) the administration of any other
    Federal or federally assisted
    program which provides assistance,
    in cash or in kind, or services,
    directly to individuals on the
    basis of need; and the safeguards
    so provided shall prohibit
    disclosure, to any committee or a
    legislative body, of any
    information which identifies by
    name or address any such applicant
    or recipient.

See Public Law No. 94-88.

The legislative history accompanying
Pub. L. No. 94-88 contains no indication
as to why Congress removed the statutory
provisions granting public officials access
to information concerning AFDC recipients.

But since 42 U.S.C. Section 602(a)(9)
was enacted in its present form, the federal
regulations which accompany it have placed
stringent requirements on granting access
to information concerning AFDC recipients.

69 OAG 95 96 97 98 99 100 101 102 103

45 C.F.R. Section 205.50(a)(1)(i) (1979)
mandates that information concerning AFDC
recipients be released only directly in
connection with:

(A) The administration of the plan of the
    State approved under title IV-A, [or]
    the plan or program of the State under
    various listed federal welfare statutes.

    Such purposes include establishing
    eligibility, determining amount of
    assistance, and providing services
    for applicants and recipients.

(B) Any investigation, prosecution, or
    criminal or civil proceeding conducted
    in connection with the administration
    of any such plans or programs; and

(C) The administration of any other Federal
    or federally assisted program which
    provides assistance, in cash or in kind,
    or services, directly to individuals on
    the basis of need.

    Under the requirements of this paragraph
    (a)(1)(i), disclosure to any committee
    or legislative body (Federal, State,
    or local) of any information that
    identifies by name and address
    any such applicant or recipient
    shall be prohibited;

    and

    certification of receipt of AFDC to an
    employer for purposes of claiming tax
    credit under Pub. L. 94-12, the Tax
    Reduction Act of 1975 (see Section
    235.40 of this chapter) shall be
    considered to be for a purpose
    directly connected with the
    administration of the plan.

45 C.F.R. Section 205.50(a)(2) (1979)
emphasizes that access to AFDC records
is to be carefully safeguarded since it
requires that:

(iii) The family or individual is
      informed whenever possible of a
      request for information from an
      outside source, and permission is
      obtained to meet the request.

      In an emergency situation when
      the individual's consent for the
      release of information cannot be
      obtained, he will be notified
      immediately.

(iv)  In the event of the issuance of
      a subpoena for the case record or
      for any agency representative to
      testify concerning an applicant or
      recipient, the court's attention is
      called, through proper channels to
      the statutory provisions and the
      policies or rules and regulations
      against disclosure of information.

69 OAG 95 96 97 98 99 100 101 102 103

(v) The same policies are applied to
    requests for information from a
    governmental authority, the courts,
    or a law enforcement official as
    from any other outside source.

Section 49.53, Stats., must be construed in a
manner consistent with the federal
legislation and attendant regulations
from which it emanates.

See

Triplett v. Board of Social Protection,
19 Or. App. 408,
528 P.2d 563, 567-68 (1974);

Finance Committee v
Falmouth Bd. of Pub. Welfare,
345 Mass. 579,
188 N.E.2d 848, 851-52 (1963).

As to the general relevance of federal
regulations, the Wisconsin Supreme Court
long ago said:

   It is the policy of this court to
   construe the law of this state so
   that it will conform as nearly as
   possible to the federal law and
   federal practice when applicable
   to the same subject matter.

Nekoosa-Edwards Paper Co. v. Railroad Comm.,
193 Wis. 538, 548,
213 N.W. 633 (1927).

Subsection (C) of 45 C.F.R. Section
205.50(a)(1) (1979) contains no language
which would authorize the release of
the information which you describe.

Subsections (A) and (B) authorize release of
information only in connection with the
administration of various welfare programs.

I have previously stated that county boards
of supervisors and committees which are
advisory to county welfare boards are
not involved in the administration of
welfare programs and consequently are
not authorized to obtain records
concerning AFDC recipients under the
provisions of Section 49.53(2), Stats.

59 Op. Att'y Gen. 240, 245 (1970).

The same restrictions apply to the Wisconsin
Department of Revenue since it does not
administer welfare programs.

45 C.F.R. Section 205.50(a)(1)(A) and (B)
(1979) also authorizes there lease of
information in order to determine amounts to
be paid from and eligibility for various
welfare programs, including the AFDC program.

If it were necessary for your Department to
make a determination with regard to welfare
eligibility or the amount of welfare to be
paid, then release of this information to the
Department of Revenue would be permissible.

But section III-C of the DHSS-DFS Income
Maintenance Manual currently provides at
pages nineteen and twenty that homestead
relief payments are to be disregarded in
determining the amount of assistance which
should be paid under the AFDC program.

Since Homestead Relief payments are not to be
considered when AFDC determinations are made,
release of this information cannot possibly
aid your Department in making eligibility
determinations.

69 OAG 95 96 97 98 99 100 101 102 103

Because applicable federal regulations list
only a very narrow set of circumstances under
which information concerning AFDC recipients
may be released, it is my conclusion that the
release of information by the Department of
Health and Social Services to the Department
of Revenue cannot fairly be said to be for a
purpose connected with the administration
of the AFDC program, even though such
information would be useful to the
Department of Revenue in determining
whether an individual has filed a
fraudulent Homestead Tax Credit return.

See
Section 71.09(7)(p), Stats., as amended by
Chapter 34, Laws of 1979.

In reaching this conclusion, I am not
unmindful of the language appearing at
29 Op. Att'y Gen. 467, 469 (1940), which
would tend to lead to a different result.

That opinion was issued long before the
passage of Pub. L. No. 94-88, and it
therefore does not purport to construe
Section 49.53, Stats., in light of
the wording now contained in 42 U.S.C.
Section 602 (a)(9) or in light of the federal
regulations accompanying that statute.

Present federal regulations flatly prohibit
the release of information concerning AFDC
recipients to governmental authorities, the
courts, or law enforcement officials, even
though the release of information to those
authorities would have been permissible
prior to the passage of the statute
in its present form.

45 C.F.R. Sections 205.50(a)(2)(iii)
and45 C.F.R. Sections 205.50(a)(2)(v) (1979).

This prohibition applies to the Department
of Revenue because it is a
governmental authority.

In general, then, information concerning
AFDC recipients cannot be released
to the Department of Revenue.

An exception is contained in Section
49.53(2), Stats., as authorized by
45 C.F.R. Section 205.50(1979),
which provides:

Safeguarding information for the
financial assistance and social
services programs.

(a) State plan requirements.

    A State plan under title IV-A
    of the Social Security Act,
    except as provided in paragraph
    (e) of this section,
    must provide that:

(2) The agency will have clearly defined
    criteria which govern the types of
    information that are safeguarded and
    the conditions under which such
    information may be released or used.

69 OAG 95 96 97 98 99 100 101 102 103

Under this requirement:

(i) Types of information to be safeguarded
    include but are Not limited to:

(A) The names and addresses of
    applicants and recipients and
    amounts of assistance provided
    (unless excepted under
    paragraph(e) of this section);

(B) Information related to the social
    and economic conditions or
    circumstances of a particular
    individual;

(C) Agency evaluation of information
    about a particular individual;

(D) Medical data, including diagnosis
    and past history of disease or
    disability, concerning a
    particular individual.
    . . . .

(e) Exception.

In respect to a State plan under title I,
IV-A, X, XIV, or XVI of the Social Security
Act, exception to the requirements of
paragraph (a)(1)(iii) of this section may
be made by reason of the enactment or
enforcement of State legislation, prescribing
any conditions under which public access may
be had to records of the disbursement of
funds or payments under such titles within
the State, if such legislation prohibits the
use of any list or names obtained through
such access to such records for commercial
or political purposes.

45 C.F.R. Section 205.50(e) (1979), does not
specify what information may be contained
within AFDC disbursement records which are
available to the general public, but Section
49.53(2)(a), Stats., provides that a monthly
report showing the names and addresses of all
persons receiving aid together with the
amount paid is to be maintained by each
county agency.

Under that statute, nothing other than the
same information which is available to the
general public may be released to the
Department of Revenue.

In addition to the foregoing considerations,
failure to comply with applicable federal
requirements could conceivably result
in a cutoff of federal funding
for the AFDC program.

See
State of Indiana v. Ewing,
99 F.Supp. 734 (D.D.C. 1951).

Any doubt as to whether AFDC records should
be released must therefore be resolved in
favor of maintaining the confidentiality
of this information.

69 OAG 95 96 97 98 99 100 101 102 103

The state plan for the administration
of the AFDC program would have to be
amended to provide for the release of
additional information to the Department
of Revenue and then reapproved by federal
officials before release of the information
you describe would be permissible under
federal law.

Until such approval is obtained, only the
names and addresses of AFDC recipients and
the amounts of monthly payments made to them
may be released to the Department of Revenue.

You also ask whether Section 49.53(2)(b),
Stats., requires that AFDC recipients be
notified when information which is also
available to the public under Section
49.53(2)(a), Stats., is released to
the Department of Revenue.

Section 49.53(2)(b), Stats., does not
exempt government agencies from complying
with its notice requirements.

If it desired to do so, the Legislature could
eliminate those notice requirements merely
by deleting the last two sentences from
Section 49.53(2)(b), Stats.

Such a deletion would be permissible because
notice need not be given with respect to the
release of information which is available to
the general public pursuant to state statute,
as long as any list or names obtained from
such records cannot be used for commercial
or political purposes.

See 45 C.F.R. Section 205.50(e) (1979).

BCL: FTC

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END