This memo defines the authority of an agency to disclose the contents of an abuse or neglect report or records to a public or private agency to whom the subject of the report has applied for licensure to provide out-of-home care for children.
There have been a number of issues raised regarding the ability of a County Department of Social or Human Services to share information on child abuse or neglect cases with this Department, another County Department or a private child placing agency which is seeking information on applicants for child welfare licenses (i.e., foster care, group home, treatment foster care and residential care centers licenses).
Our Office of Legal Counsel has informed us that the sharing of such information is allowable under s. 48.981(7)(a)9., Stats. This language states that abuse and neglect reports and records may be disclosed to "a court or administrative agency for use in a proceeding relating to the licensing or regulation of a facility regulated under this chapter." "Administrative agency" is to be interpreted to mean an agency administering authority granted by the Legislature. This Department, County Departments and some private child placing agencies are granted such statutory authority. The authority to share information from child abuse and neglect records extends to similar agencies located anywhere in the United States.
A facility is not defined by statute but is defined by the dictionary as something that is "built, installed, or established to serve a particular purpose." Foster homes and other licensed facilities are established to serve the purpose of providing out-of-home care and, as such, may be considered a facility.
This interpretation is consistent with the intent of s. 48.981(7)(a)9, Stats., to allow the use of abuse and neglect information for licensing actions. It is also consistent with the directive in the introduction to Ch. 48 that the Children's Code should be construed liberally to serve the best interests of children. Clearly, screening out individuals who have a history of abusing or neglecting children from being care providers is in the best interest of children.
In providing this information, the agency which is the custodian of the record should remove from the information provided any reference to the name or identity of the reporter of the abuse or neglect and should also notify the agency to which the information is provided of the statutory prohibition on any further disclosure of that information by the agency receiving the information.
It is not necessary for the subject of the report (i.e., the individual applying for the license) to sign any written release for the information to be provided to the licensing agency. Indeed, the subject of the report has no authority to release the information in such a situation. However, it would be advisable in all cases to inform the applicant that such a background check will be undertaken so that the applicant can either inform the licensing agency of what they may find or withdraw the license application.