79 Op. Att'y Gen. 212 (1990)
 
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Wisconsin Attorney General Opinions

28 December 1990

Opinion # OAG 39-90,

Confidential Reports;
Counties; Public Records;

Members of a social services board in a
county with a county executive or a county
administrator may be granted access to child
abuse and neglect files pursuant to Section
48.981(7)(a)2. of the statutes if such
access is necessary to allow them to
perform their statutory duties.

THOMAS SCHROEDER,
Corporation Counsel Rock County

You ask whether members of a social services
board in a county with a county executive or
a county administrator may be granted access
to child abuse and neglect files.

In my opinion, the answer is yes if such
access is necessary to permit the board
to perform its statutory duties.

Section 48.981, Stats., was amended and
recreated in substantially its present
form in 1983 Wisconsin Act 172.

That legislation and subsequent
amendments are required

"to conform with federal regulations."

Compare Freed v. Worcester County,
69 Md. App. 447, 518 A.2d 159, 162(1986).

Those regulations now appear in 45 C.F.R.
Section 1340.14(i)(2) (1989),
which provides in part:

If a State chooses to, it may authorize by
statute disclosure to any or all of the
following persons and agencies, under
limitations and procedures the State
determines:

(i) The agency (agencies) or organizations
(including its designated
multi-disciplinary case consultation
team) legally mandated by any Federal or
State law to receive and investigate
reports of known and suspected child
abuse and neglect;
. . . .

(x) An appropriate State or local official
responsible for administration of the
child protective service or for
oversight of the enabling or
appropriating legislation,
carrying out his or her
official functions;

 
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Section 48.981(7), in turn provides in part:

CONFIDENTIALITY.

48.981(7)(a)

All reports made under this Section,
notices provided under Subsection(3)(bm)
and records 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:

. . . . . . . . . .

2. Appropriate staff of the
department, a county department or
licensed child welfare agency under
contract with the county
departments, or a tribal social
services department.

. . . . . . . . . . . .

7. Another county department, or
licensed child welfare agency under
contract with that county
department, or a tribal social
services department that is
currently investigating a report of
suspected or threatened child
abuse or neglect involving a
subject of the record or report.

The state statute must be construed in a
manner consistent with federal legislation
and attendant regulations.

See 69 Op. Att'y Gen. 95, 100 (1980).

45 C.F.R. Section 1340.14 (i)(2)(i) (1989)
refers to "agencies" and "organizations."

A social services department is an "agency."
Under Section 46.22(1)(a),

the county department of social services
shall consist of a county social
services board, a county social services
director and necessary personnel.

County social services boards are therefore

part and parcel of county social
services] departments.

59 Op. Att'y Gen. 240, 248 (1970).

In 59 Op. Att'y Gen. at 248, my predecessor
concluded that, given the language contained
in Section 46.22(1)(a), county welfare boards
may obtain access to records that are
confidential under Section 48.78.

As to committees appointed by the
welfare board, however, that opinion
concluded as follows:

 
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Committees appointed by the
county welfare board are
purely advisory in
character.

They are not enumerated in Sections
48.78 or 48.56, Stats., as an exempted
agency. Hence, they are completely
barred to child welfare files as
provided by the confidentiality statute.

Moreover, it is extremely doubtful that
they have sufficient standing to obtain
a court order which would permit an
inspection of such records.

On the other hand, there can be no
objection to supplying such committees
with statistical data which does not
identify individuals for purposes of
advising the board as to policy matters.

The confidentiality statute was designed
to protect individuals from humiliation
and embarrassment.

It was not meant to stifle all degrees
of inquiry.

59 Op. Att'y Gen. at 248.

Section 48.981(7) is a specific statute
governing access to records concerning
child abuse and neglect.

Its provisions are controlling over the
more general provisions of Section 48.78
concerning records generally maintained
by county social services agencies.

See e.g.,
Employees Local 1901 v. Brown County,
146 Wis.2d 728, 735,
432 N.W.2d 571 (1988).

59 Op. Att'y Gen. 240 therefore is not
dispositive with respect to your inquiry,
since it does not and could not have
analyzed the more specific provisions
in Section 48.981.

You indicate that, in Section 48.981(7)(a)2.,
the Legislature chose to employ the term
"appropriate staff," while no such
terminology appears in Section 48.78.

You therefore suggest that the language of
the former statute is more stringent and that
members of the welfare board are not "staff."

While I agree that the phrase

"appropriate staff"

may connote a degree of confidentiality more
stringent than the term "agency" in Section
48.78, I am unwilling to conclude that
members of a social services board
are not "staff."

 
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To reach such a result would also
require me to conclude that members
of multi-county social services boards and
members of social services boards in counties
without a county executive and a county
administrator are not "staff" even though
such boards

supervise the working of the county
department of social services and shall
be . . . policy-making bod[ies]
determining the broad outlines and
principles governing the administration
of the functions, duties and powers
assigned to the county department of
social services . . . . . . . . . .

Section 46.22(2)(c), Stats.

Statutes should be construed to avoid results
which are "unrealistic and unreasonable."

Maxey v. Racine Redevelopment Authority,
120 Wis.2d 13, 20,
353 N.W.2d 812 (Ct.App. 1984).

It would be both unrealistic and unreasonable
to impede a social services board from
performing its statutory duties under
Section 46.22(2)(c) on the theory that
members of the board are not "staff."

I therefore reject that construction of the
term "staff" and conclude that, under Section
46.22(1)(a), members of the social services
board, the county social services director
and personnel in the county social services
department are all "staff."

Board members therefore cannot be denied
access on the basis that "they are not
enumerated in . . . the confidentiality
statute as an exempted agency.

Compare 59 Op. Att'y Gen. at 248.

Finally, you suggest, in effect, that even if
members of a county social services board in
a county with a county executive or a county
administrator are staff, social services
boards in such counties function in a manner
analogous to the advisory committees
described in 59 Op. Att'y Gen. at 248.

Section 46.22(2g) provides as follows:

POWERS AND DUTIES OF COUNTY SOCIAL
SERVICES BOARD IN CERTAIN COUNTIES WITH A
COUNTY EXECUTIVE OR COUNTY ADMINISTRATOR.

A county social services board
appointed under Subsection

46.22(1m)(b)2 shall:

. . . . . . . .

(b) Appoint committees consisting of
residents of the county to advise the
county social services board as it deems
necessary. Members of such committees
shall serve without compensation.

 
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(c) Recommend program priorities,
identify unmet service needs and prepare
short-term and long-term plans and
budgets for meeting such priorities and
needs.

(d) Prepare, with the assistance of the
county social services director under
Subsection (3m)(b)5, a proposed budget
for submission to the county executive
or county administrator and to the
department of health and social services
in accordance with Section 46.031(1) for
authorized services.

(e) Advise the county social services
director under SubSection (3m)(b)3
regarding purchasing and providing
services and the selection of purchase
of service vendors, and make
recommendations to the county executive
or county administrator regarding
modifications in such purchasing,
providing and selection.

(f) Develop county social services board
operating procedures.

(g) Comply with state requirements.

(h) Assist in arranging cooperative
working agreements with persons
providing health, education, vocational
or welfare services related to services
provided under this Section.

When compared with other county social
services boards, social services boards in
counties with a county executive or a county
administrator undoubtedly have relatively few
powers.

See Section 46.22(2), Stats.

But they are not the functional equivalent of
advisory committees such as those described
in 59 Op. Att'y Gen. at 248, since they still
retain the power to appoint such committees.

Section 46.22(2g)(b), Stats.

I recognize that, in counties such as yours,
many of the functions now exercised by
members of the social services board are
advisory in nature.

Nevertheless, some relevant, non-advisory
functions, notably identification of unmet
service needs and preparation of departmental
plans and budgets, do remain.

Section 46.22(2g)(c) and (d), Stats.

 
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As with any other county social services
department personnel, the question is whether
board members require access to such records
to perform one or more of their statutory
duties.

If so, they are "appropriate staff" within
the meaning of Section 48.981(7)(a)2. That
determination must be made by the county
social services director on a case-by-case
basis in the exercise of his or her
supervisory authority.

See Section 46.22(3m)(b)1. and lm., Stats.

I therefore conclude that members of a social
services board in a county with a county
executive or a county administrator may be
granted access to child abuse and neglect
files pursuant to Section 48.981(7)(a)2. of
the statutes if such access is necessary to
allow them to perform their statutory duties.

DJH:FTC


 
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