81 Op. Att'y Gen. 66 (1993)

Wisconsin Attorney General Opinions

3 August 1993   Opinion OAG # 10-93
 
81 OAG 66  67  68  69  70  END

A district attorney or corporation counsel
may reveal the contents of a report made
under section 48.981 in the course of a
criminal prosecution or one of the civil
proceedings enumerated under
section 48.981(7)(a)10.

Mr. Michael E. O'Brien
District Attorney
Rock County Courthouse
51 South Main Street
Janesville, Wisconsin 53545

Dear Mr. O'Brien:

You have stated that your office has an open
file policy that gives defendants access to
all portions of your files except work
product. You have asked whether section
48.981(7)(a)1., Stats., requires that a
district attorney prevent a defendant from
obtaining information about the identity of
a mandatory reporter in child abuse cases.

Your question can best be answered
as two more specific questions.

First, how do the confidentiality provisions
of section 48.981(7) operate with regard to
the civil litigation proceedings specified
by section 48.981(7)(a)10.?

Second, do the confidentiality provisions of
section 48.981(7) apply when criminal
prosecutions are commenced in cases
referred to the district attorney
pursuant to section 48.981(3)(b)3.?

My opinion is that the provisions of section
48.981(7) do not require that either the
report or the identity of the reporter remain
confidential when either of these types of
proceedings are pending and, therefore, the
district attorney is not required to conceal
information that would identify the reporter
or otherwise keep the information in the
report confidential in these circumstances.

Moreover, in some cases the law may require
disclosure of the reporter's identity if
the child is to be a witness in a court
proceeding and the child has given a
statement to the reporter about the
incident which causes the reporter to act.

See Section 971.24, Stats. However, it is
also my opinion that a district attorney or
corporation counsel will further the policies
embodied in section 48.981(7) if the district
attorney or corporation counsel protects the
identity of a reporter whenever that can be
done without impairing either the district
attorney's ability to present the state's
case or the constitutional or statutory
duty to disclose evidence.

 
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The language of the relevant statutory
sections and the common rules of statutory
construction support these conclusions.

Section 48.981(7) provides in pertinent part:

CONFIDENTIALITY.

48.981(7)(a) All reports made under this
section . . shall be confidential.

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

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.
     . . . . . .
8.   A law enforcement officer or agency
     for purposes of investigation or
     prosecution.
     . . . . . .
10.  A court conducting proceedings
     relating to a petition under
     Section 48.13 or a court conducting
     dispositional proceedings under
     subchapter VI in which abuse or
     neglect of the child . . . is
     the subject of the report
     or record is an issue.
     . . . . . . . . . . .
11.  The county corporation counsel or
     district attorney representing the
     interests of the public in
     proceedings under subdivision 10.
     . . . . . . . . . . . . . . . .

     (e)  A person to whom a report or
          record is disclosed under this
          subsection may not further
          disclose it, except to the
          persons and for the purposes
          specified in this section.

Initially, I note that the confidentiality
provisions of section 48.981(7) apply to
the entire report, not just to the identity
of the reporter or of the mandatory reporter.

 
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The exceptions enumerated in section
48.981(7) arguably cover the gamut of
civil and criminal investigative activities
and civil court proceedings.

Read in pari materia, they require that the
entire report be treated as confidential by
a district attorney or corporation counsel
unless the district attorney or corporation
counsel is representing the public interests
in a CHIPS proceeding under section 48.13 or
a dispositional proceeding under subchapter
VI in which abuse or neglect of the child
who is the subject of the report or
record is at issue.

Where the district attorney or corporation
counsel is representing the public interest
in one of the proceedings specified in
section 48.981(7)(a)10., all of the
information in the report can be
revealed to the court.

The plain language of section 48.981(7)(a)10.
says this. See State v. Hopkins, 168 Wis.2d
802, 814, 484 N.W.2d 549 (1992). It follows
naturally that this same information will be
given to all of the parties to the action in
the course of the court proceedings or before
the proceedings as discovery.

Although section 48.981(7) refers to law
enforcement, prosecution and the district
attorney in various subsections, it does not
directly address the issue of the release of
the case report to the district attorney for
criminal prosecution. That action is governed
by section 48.981(3)(b)3. which provides:

   if the police or other law enforcement
   officials determine that criminal action
   is necessary, they shall refer the case
   to the district attorney for criminal
   prosecution.

Section 48.981(3)(b)3 does not restrict
the district attorney's use of the case
information in any way.

Obviously, the district attorney could
not bring criminal charges unless the
statutes exempted this activity from
the confidentiality requirements in
Section 48.981(7) because all criminal
prosecutions are public record.

The statutes must be construed
to avoid absurd results.

State v. Wilks,
165 Wis.2d 102, 111,
477 N.W.2d 632 (Ct.App. 1991).

The argument that the Legislature intended
to tie the hands of the prosecution by
forcing them to prosecute without using
all of the evidence is absurd.

 
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Further, the limiting language
in section 48.981(7)(e) makes it clear
that the confidentiality provisions of
section 48.981(7) do not apply to a case
revealed to the district attorney pursuant
to section 48.981(3)(b)3.

Section 48.981(7)(e) provides:

   a person to whom a report or record is
   disclosed under this subsection may not
   further disclose it, except to the
   persons and for the purposes
   specified in this section.
 

Thus, I conclude that in criminal cases as in
civil cases the district attorney litigating
a child abuse case is not required to keep
information in the investigative file
confidential.

When a district attorney or corporation
counsel finds that the information received
from the reporter is both unnecessary to the
effective presentation of the case and not
exculpatory, he or she should further the
policy in chapter 48 of encouraging reporting
by protecting the reporter's identity.

I would encourage a district attorney to
adopt a practice that conceals the identity
of the reporter, using any procedure that has
proven effective in the past, whenever this
does not undermine the district attorney's
ability to carry out the previously
described overriding statutory
and constitutional duties.

However, it is my opinion that
such action is discretionary.

See
State ex rel. Richards v. Foust,
165 Wis.2d 429, 477 N.W.2d 608 (1991)

(public records law does not provide
 access to prosecutor's files).

Your question also referred to the duty of
law enforcement agencies. The language of
section 48.981(7) applies to law enforcement
agencies with regard to their handling of
child abuse reports. If they reveal the
information in the reports to any of the
persons or agencies listed in section
48.981(7), they must conceal the identity of
the reporter wherever the statute requires
this, as when the report is given to a
subject under section 48.981(7)(a)1.

It is only when the report is revealed
pursuant to section 48.981(3)(b)3 that
the law enforcement agencies are
relieved of the confidentiality
provisions of section 48.981(7).

Sincerely,

James E. Doyle
Attorney General

 
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