I respectfully dissent. I agree with the majority that the statute gives the trial court wide discretion on this issue. However, I do not agree that disclosure of a reporter's identity is a ministerial duty required of a trial court. Discretion involves the power to discern, to choose and to judge. Although the criteria for exercising discretion is not set forth in so many words, the purpose of the statute provides guidance.
The statute reflects concern for two conflicting interests: the protection of children from abuse or neglect, and the deterrence of false reporting of such occurrences. To protect victims of child abuse or neglect the statute facilitates reporting by limiting disclosure of the identities of reporters, and by granting immunity from liability for good faith reporting. To protect the victims of false reporting it contains disclosure provisions and establishes a cause of action for bad faith reporting.
The showing required for the subject of a report to obtain disclosure of the reporter's identity should reflect a balancing of those interests. Here, the trial court declined to review the welfare department's file because it believed the record would not aid its decision. It seems to me that knowledge of the facts of the complaint, the identity of the reporter and his or her relationship with the children, the activity, or the parish would be critical in determining whether the report was made, as Father Guetter's affidavit alleges, "maliciously and intentionally to destroy my reputation as a priest in an attempt to have me removed from [my parish] * * *."
Richard Embacher, Supervisor for Brown County Family Services, stated that although the specific allegation regarding sexual misconduct was not supported by any additional evidence found during the investigation, the general allegations of improper conduct by Michael Guetter were in fact supported. Embacher's statement hardly leads one to the conclusion that the report was made for false and malicious purposes. If the court had taken the time to determine from Brown County's file whether Embacher's statement had a basis in fact and reason, it could have determined the question of whether the report was made in good faith. The only purpose of disclosure is to subject the person who "knowingly or recklessly makes a false report" to liability in a civil suit for damages. Minn.Stat. § 626.556, subd. 5 (Supp. 1985).
The statute defines "sexual abuse" in terms of the violation of certain criminal statutes. Id. subd. 2(a). However, the fact that a lay person's perceptions of improper sexual contact with children might amount to something less than a violation of the criminal code, should not subject them to possible recriminations when a report is made in good faith. To follow the reasoning of the majority is to mandate disclosure in every case where the report does not result in a criminal charge. This result directly conflicts with the legislative purpose set forth in Minn.Stat. § 626.556, subd. 1:
The legislature hereby declares that the public policy of this state is to protect children whose health or welfare may be jeopardized through physical abuse, neglect or sexual abuse; to strengthen the family and make the home, school, and community safe for children by promoting responsible child care in all settings; * * *.
In addition, it is the policy of this state to require the reporting of neglect, physical or sexual abuse of children in the home, school, and community settings; to provide for the voluntary reporting of abuse or neglect of children; to require the assessment and investigation of the reports; and to provide protective and counseling services in appropriate cases.
(Emphasis added.)
Minn.Stat. § 626.556, subd. 11, also clearly shows legislative intent that confidentiality of the reporter be protected:
After the assessment or investigation is completed, the name of the reporter shall be confidential but shall be accessible *Page 121 to the individual subject of the record upon court order.
(Emphasis added.) In order to encourage good faith reporting of child abuse, the reporter's name must be kept confidential until a court determines the likelihood that the person "knowingly or recklessly" made a false report.
I believe the proper balance between protecting children and deterring false reporting can only be effected by requiring a judge to exercise the discretion contemplated by the statute. The refusal to exercise discretion when discretion is required is an abuse of it. I would reverse and remand with instructions that the trial court review the Brown County file, including the report and the investigation results contained therein, and to make findings as to whether the report had a basis in fact, i.e., was made in good faith, or whether it was apparently made "knowingly or recklessly" with knowledge of its being false.