State v. Polashek

¶ 36. N. PATRICK CROOKS, J.

(dissenting). I cannot join Part III of the majority's opinion because I disagree with the majority's interpretation of the term "disclose." According to the majority, "to 'disclose' information under [Wis. Stat.] § 48.981(7), the recipient must have been previously unaware of the information at the time of the communication." Majority op. at ¶ 23. I respectfully dissent because I conclude that the term "disclose" in § 48.981(7) is ambiguous, and that, consistent with the goals and purposes of the statute, the definition of "disclose" does not require lack of knowledge on the part of the recipient.

¶ 37. Based on various dictionary definitions, the majority concludes that the term disclose is unambiguous and requires that the recipient must not have known the information prior to the communication. Majority op. at ¶ 21. The majority finds further support for that interpretation in several federal court decisions. Id. at ¶ 22.1 agree that the court should turn to recognized dictionaries to determine the common and *547ordinary meaning of "disclose." State v. Perez, 2001 WI 79, ¶ 23, 244 Wis. 2d 582, 628 N.W.2d 820. I disagree, however, that based on the dictionary definitions of "disclose" and the federal court decisions, the term "disclose" in Wis. Stat. § 48.981(7) is unambiguous.

¶ 38. The majority presents the following dictionary definitions of disclosure: (1) "The act or process of making known something that was previously unknown; a revelation of facts." Black's Law Dictionary 477 (7th ed. 1999); (2) "To expose to view: lay open or uncover (something hidden from view); to make known: open up something to general knowledge ... to reveal in words (something that is secret or generally not known): divulge." Webster's Third New International Dictionary (Unabridged) 645 (1986); and (3) "To uncover (anything covered up from view); to remove a cover from and expose to view (anything material)... To open up to the knowledge of others; to make openly known, reveal, declare (secrets, purposes, beliefs, etc.)... ." 4 Oxford English Dictionary 737 (2d ed. 1989). Majority op. at ¶¶ 20-21. While these definitions may suggest a previous lack of knowledge on the part of the recipient, contrary to the majority, I do not interpret these definitions as unambiguously imposing such a requirement. Several parts of the definitions, including "to make known," "open up something to general knowledge," "generally not known," and "to make openly known," indicate that a disclosure does not necessarily require a previous lack of knowledge by the recipient. After examining the definitions of "disclosure," therefore, I conclude that the term is ambiguous on its face.

¶ 39. In addition to the dictionary definitions, the majority relies on some federal court decisions interpreting the term "disclose." Majority op. at ¶ 22. Some *548federal courts have interpreted the term "disclose" under the Federal Privacy Act, 5 U.S.C. § 552a (2000), such that there is no violation of the Act where the agency makes available information already known by the recipient. See Pellerin v. Veterans Admin., 790 F.2d 1553 (11th Cir. 1986); Sullivan v. United States Postal Serv., 944 F. Supp. 191 (W.D.N.Y. 1996); Brooks v. Veterans Admin. 773 F. Supp. 1483 (D. Kan. 1991). In Pilon v. United States Dep't of Justice, 73 F.3d 1111, 1124 (D.C. Cir. 1996), however, the court concluded that any unauthorized release of confidential information constitutes a disclosure under the Privacy Act, except under narrow circumstances where the information disclosed was previously and lawfully disseminated by the agency to the recipient, who is fully able to reconstruct its contents. I disagree with the majority's interpretation of these cases as further support for the conclusion that "disclose" unambiguously requires a lack of prior knowledge by the recipient, in regard to the information communicated. The noted exception in Pilón is narrow and it does not encompass the context we are faced with here, regarding professionals who are entrusted with confidential information about suspected child abuse or neglect. Furthermore, the court in Pilón expressed the ambiguous nature of "disclose" when it presented the example of a government employee who must set forth his or her assets in a "financial disclosure statement" even though the statement discloses information identical to that which the recipient knows from the employee's prior years' statement. Id. at 1119. I agree with the court of appeals, therefore, that the federal cases are helpful only to the extent that they show reasonable minds can differ as to the meaning of "disclose."

*549¶ 40. Based on the varied dictionary definitions and the federal court decisions, I conclude, as did the court of appeals, that the term "disclose" is ambiguous. See id. When a statute is ambiguous, we then look to the scope, history, context, subject matter and purpose of the statute to determine the legislative intent. Dodgeland Educ. Ass'n v. WERC, 2002 WI 22, ¶ 21, 250 Wis. 2d 357, 639 N.W.2d 733. Here, the purpose of the statute leads me to conclude that a previous lack of knowledge requirement was not intended, and is therefore not required under Wis. Stat. § 48.981(7).

¶ 41. As the court of appeals acknowledged, the purpose of Wis. Stat. § 48.981 is to encourage the reporting of suspected child abuse and neglect, to assure that the appropriate services are provided to the families of abused and neglected children. State v. Polashek, 2001 WI App 130, ¶ 20, 246 Wis. 2d 627, 630 N.W.2d 545 (citing Laws of 1977, ch. 355, § 1). To encourage reporting, the legislature mandated that certain professionals, including physicians, nurses, social workers, teachers, and counselors, report suspected child abuse and neglect. Wis. Stat. § 48.981(2). The legislature also required that all mandatory reporters receive training on identifying and reporting suspected child abuse and neglect. § 48.981(8).

¶ 42. Furthermore, the legislature created several protections for mandatory reporters. Under Wis. Stat. § 48.981, reporters are immune from civil and criminal liability for the good faith reporting — which is presumed in all cases — of suspected abuse or neglect, and reporters cannot be fired from a job for reporting suspected abuse or neglect. §§ 48.981(2), (4), (7)(cr)5. Moreover, § 48.981(7) specifically provides that reports made pursuant to the statute are to be kept confidential, although with explicit exceptions. Especially sig*550nificant here, § 48.981(7) also protects against the "disclosure" of information that would identify the reporter. This ban on disclosing identifying information about the reporter furthers the statute's purpose of encouraging reporting, because it restricts the ability of parents or guardians of a child to retaliate against the reporter for making the mandatory report.

¶ 43. Based on the legislature's intent, I conclude that the dissemination of confidential information is a "disclosure" under Wis. Stat. § 48.981(7). The actual knowledge of the recipient is wholly unrelated to encouraging reporting of child abuse and neglect. The goal is to protect children, and in order to do so, to protect the identity of persons mandated to report suspected child abuse and neglect. Interpreting "disclose" to require that the recipient be unaware previously of the information does not further this purpose, because it allows for open discussion of confidential information if such information were previously known. Similarly, the Wisconsin Education Association Council (WEAC) notes in its amicus curiae brief that applying the majority's interpretation of "disclose" to § 48.981 produces inconsistent results. Section 48.981(7)(a) enumerates exceptions to the confidentiality requirement; thus, reports and records of suspected child abuse may be disclosed to certain identified persons. Contrary to the plain language of the statute, however, the majority's interpretation of "disclose" essentially adds to that list persons who have prior knowledge of the information communicated, and might be interpreted as allowing extensive discussion of a report with anyone who had some familiarity with the information in such a report.

¶ 44. Furthermore, under the majority's interpretation of "disclose," someone who discloses the identity *551of the reporter would not be held responsible for violating the statute simply because the recipient was aware previously of the information. To me, this seems illogical and contrary to the legislature's intent. "[T]he recipient's previous knowledge of the information does not alter the fact that a disclosure was made." Polashek, 2001 WI App 130, ¶ 26. Consistent with the legislative purpose of § 48.981, therefore, I would affirm the court of appeals' conclusion that the definition of "disclose" does not require the State to prove a lack of knowledge on the part of the recipient. See id.

¶ 45. Finally, I note that the majority's interpretation of "disclose" seems inconsistent with the majority's conclusion that Wis. Stat. § 48.981(7) is a strict liability statute. The majority relies on several factors in drawing its conclusion on the strict liability issue. Two of those factors, however, seem inconsistent with the majority's prior conclusion that "disclose" requires that the recipient not have prior knowledge of the information.

¶ 46. First, the majority acknowledges the statute's purpose and states:

by establishing a confidentiality requirement, [the legislature] was clearly attempting to impose a high standard of care on those with access to records and reports of child abuse and neglect. In such a case, it is not unfathomable that the legislature would eliminate a mental state to enforce such a standard.

Majority op. at ¶ 31 (emphasis added). Second, the majority notes that the practical needs for effective enforcement of the statute lead to the conclusion that the legislature intended a strict liability offense. The majority recognizes that interpreting the statute to require intent would hamper effective enforcement of *552the statute, because police and prosecutors would have to "examine the defendant's personal knowledge of the statutes, the defendant's knowledge of the actual information, and the defendant's knowledge of whether the information was confidential at the time he disclosed it." Majority op. at ¶ 33.

¶ 47. These factors seem contrary to the majority's conclusion that "disclose" requires that the recipient not have prior knowledge of the information. Similar to imposing an intent requirement, imposing a prior knowledge requirement on the part of the recipient seems inconsistent with the legislature's intent to impose a "high standard of care on those with access to records and reports of child abuse and neglect." Majority op. at ¶ 31. The majority's interpretation of "disclose" is contrary to a high standard of care because, as I stated earlier, it allows open discussion of confidential information if the recipient has previous knowledge. Furthermore, the majority's interpretation of "disclose" hampers effective enforcement of the statute by requiring the State to prove that the recipient did not have prior knowledge of the information. Under the majority's interpretation of "disclose" the police and prosecutors are required to examine the recipient's personal knowledge of the information. Moreover, although I agree with the majority's conclusion that § 48.981(7) is a strict liability offense, I find several factors, leading to that conclusion, seemingly inconsistent with the majority's prior conclusion that "disclose" requires that the recipient lack knowledge of the information communicated.

¶ 48. For the reasons stated, I respectfully dissent from Part III of the majority's opinion.