77 Op. Att'y Gen. 84 (1988)

Wisconsin Attorney General Opinions

Opinion # OAG 17-88
 
77 OAG 84  85  86  87

8 April 1988

Children, Confidential Reports,
Counties; Public Records;

A county department of social services has no
discretion to refuse to disclose reports and
records of child abuse or neglect to the
subject of the report or the subject's
attorney under Section 48.981(7)(a)1. and
Section 48.981(7)(c), Stats.

RALPH E. SHARP, JR.,
Corporation Counsel Dodge County

Your office asks whether a county department
of social services has any discretion to
disclose or not to disclose reports and
records under Section 48.981(7)(a)1. and
Section 48.981(7)(c), Stats., which provides:

Section 48.981(7)(a) All reports and records
made under this Section and maintained by
the department, county departments and
other persons, officials and institutions
shall be confidential.

Reports and records may be disclosed
only to the following persons:

Section 48.981(7)(a)1. The subject of a
report, except that the person or agency
maintaining the record or report may not
disclose any information that would
identify the reporter. . . . . . .

Section 48.981(7)(c) Notwithstanding
Section 48.981(7)(a), the subject of a
report may authorize the disclosure of a
record to the subject's attorney.

The authorization shall be in writing.

Any information that would identify a
reporter shall be deleted before disclosure
of a record under this paragraph.

Under Section 48.981 generally, certain
persons are required and other persons
are encouraged to report suspected
cases of child abuse or neglect.

Chapter 355, Laws of 1977, repealed and
recreated Section 48.981 and for the first
time provided for confidentiality in
Subsection 48.981(10) with the
following language:

48.981(10)(a)1. All reports and records
made under this Section and maintained
by the department, county agencies, the
central registry and other appropriate
persons, officials and institutions
shall be confidential, except that
confidentiality of and access to
preliminary investigative reports
maintained by the department
shall be governed solely by
Subsection 48.981(7).
 

Information shall not be made
available to any individual or
institution except to: . . . .

77 OAG 84  85  86  87

This original language under Subsection
48.981(10) evinces the legislative intent
that the information be made available
upon request to the four persons or
entities thereafter enumerated.

An analysis prepared by the Legislative
Reference Bureau at that time
states in pertinent part:

Reports and records relating to child
abuse, mental injury or neglect will be
confidential, except to the subject,
staff, and attending physician, or
a court conducting abuse, neglect
or child protective proceedings.

Information will be available for bona
fide researchers, but persons and
reporters will not be identified.

Subjects will not be told the
name of the initial reporter.

(Emphasis added.)

The present version of Section 48.981(7)(a)
was enacted by 1983 Wisconsin Act 172 with
no apparent change intended except to
expand the list of persons to whom
records and reports may be disclosed.

The Legislature in 1977, therefore,
established an absolute right to know and
inspect the contents of these reports and
records in plain and unambiguous language for
the persons and entities covered by the
exceptions to the general rule of
confidentiality.

See
State ex rel. Journal Co. v. County Court,
43 Wis.2d 297, 308-09,
168 N.W.2d 836 (1969);

Hanson v. Eichstaedt,
69 Wis. 538,
35 N.W. 30 (1887).

Thus, the Legislature has removed from
consideration the balancing test of weighing
any possible harm done to the public interest
against the right of a member of the public
to have access to particular public records
or documents.

See, for example,
State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539,
334 N.W.2d 252 (1983).

The public records statutes under Sections
19.21 to 19.37 only apply

"except as otherwise provided by law."

Sec. 19.35(1), Stats.

Section 48.981(7)(a) in clear and unambiguous
mandatory language establishes an
exemption from disclosure.

After stating the general rule that all such
reports and records shall be confidential,
however, Subsection 48.981(7)(a) enumerates
fourteen exceptions to whom reports and
records may be disclosed, including the
subject of a report under Subsection
48.98(7)(a)1 and when authorized,
the subject's attorney under
Subsection 48.98(7)(c).

It is well settled that an exception takes
out of the statute something that
otherwise might be part of the
subject matter of that statute.

Garcia v. Chicago & N. W. R. Co.,
256 Wis. 633, 638, 42 N.W.2d 288 (1950);
Pabst Brewing Co. v. Milwaukee,
148 Wis. 582, 586-87,
133 N.W. 1112 (1912).

77 OAG 84  85  86  87

In analyzing whether the Legislature intended
a provision to be mandatory or directory, it
is necessary to consider the consequences
resulting from one construction or the other.

Karow v. Milwaukee County Civil Serv. Comm.,
82 Wis.2d 565, 572,
263 N.W.2d 214 (1978).

Although the word "may" often is construed
as permissive, it is my opinion for the
reasons hereafter set forth that the county
department of social services has no such
discretion in disclosing reports and records
to the subject of a report and to the
subject's attorney where the subject of the
report authorizes such disclosure in writing.

Furthermore, the word "may" logically applies
to all of the persons enumerated thereafter.

It is my opinion that absurd consequences
would arise from granting to a county
department of social services the authority
to refuse disclosure, for example, to

(1) appropriate staff of the department
of health and social services
or a county department,

(2) an attending physician for purposes
of diagnosis and treatment,

(3) a law enforcement officer or agency
for purposes of investigation
or prosecution,

(4) a court conducting proceedings related
to a petition under Section 48.13
for a child in need of protection
or services or

(5) the county corporation counsel or
district attorney representing
the interests of the public
in such court proceedings.

In particular, Subsection 48.13(7)(c) implies
the need for disclosure to the subject's
attorney presumably because some legal
action is pending or anticipated.

Under such circumstances principles of due
process are a potential concern although
it is not necessary to reach this issue
in light of my interpretation of these
confidentiality provisions.

DJH:DPJ

77 OAG 84  85  86  87

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