WELFARE RECORDS -- CONFIDENTIAL AND PRIVILEGED

WELFARE RECORDS -- CONFIDENTIAL AND PRIVILEGED

The proposed rules and regulations are within the statutory authority of the department and adequately protect the confidential and privileged information from disclosure in court proceedings.

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                                                               December 22, 1949

Honorable Roderic Olzendam
Director
Department of Social Security
Olympia, Washington                                                                                                              Cite as:  AGO 49-51 No. 185

Dear Sir:

            In a letter dated December 15, 1949, you have requested the opinion of this office on the following questions:

                 1. In view of the decision of the Supreme Court in the recent case ofState ex rel. State of Washington v. Max Church, 135 Wash. Dec. 157, [[35 Wn.2d 170]]does the Department of Social Security have the authority necessary to safeguard information concerning recipients of old age assistance, aid to the blind and aid to dependent children in the manner required by the relevant provisions of the Social Security Act?

                 2. Do the proposed rules and regulations relating to such confidential information adequately safeguard such information from disclosure in compliance with the federal requirement?

            The conclusions reached may be summarized as follows:

            1. The Department of Social Security has authority to safeguard all privileged information concerning recipient of any category of assistance.

            2. The proposed rules and regulations adequately safeguard such information from disclosure as prescribed by the federal requirement.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            You state that you have received a communication from the Commissioner of Social Security, Arthur Altmeyer, which raises the question of the conformity of the Washington State plan with the requirements of the Federal Security Agency relative to the confidential nature of records in view of the recent opinion of our Supreme Court in the case ofState ex rel. State of Washington v. Max Church, 135 Wash. Dec. 157.  [[35 Wn.2d 170]] In that case the Supreme Court held that the confidential and privileged records of the county welfare department must be produced in court in a criminal action in response to a subpoena duces tecum.  In deciding that case the Supreme Court found that the rules and regulations of the Department of Social Security did not specifically provide that the privileged information could not be disclosed in response to compulsory process.  In its opinion the court commented several times that although the department has the legal authority to draft the necessary rules and regulations it had not done so.

            We should like to call your attention to a portion of the pertinent language of the court in that opinion:

            "We wish it to be distinctly understood that in deciding this case we are passing upon only the claim of testimonial privilege presented by the record before us.  We merely hold that under the provisions of the particular statute and the rules and regulations involved in this case the superior court had power to compel the administrator to comply with its order of November 4, 1949."

            Accordingly, it is the opinion of this office that the department has properly solved the problem by redrafting the rules and regulations concerning such confidential information, and specifically prohibiting production of such records in response to a subpoena duces tecum or court order in any court proceeding not directly involving the administration of public assistance.  If the proposed new rules and regulations are promulgated in their present form it is our opinion that they resolve the question raised by the court under the old rules and regulations.

            The Supreme Court of our state has held that our public assistance statutes must be construed in such a way as to conform with the requirements of the Federal Social Security Act.  Section 17, chapter 6, Laws of 1949, which  [[Orig. Op. Page 3]] provision is precisely the same as the provision found in the public assistance law which was construed in Morgan v. Department of Social Security, 14 Wn. (2d) 156, 127 P. (2d) 686, specifically provides that plans of administration submitted by the department to the Federal Security Agency shall conform with the requirements of the Federal Social Security Act. We think that inasmuch as it is a statutory requirement that our state plan conform to the federal requirements in all respects, it necessarily follows that the department is authorized to draft new rules and regulations to conform with the requirements of the Federal Security Agency.

            Accordingly, since the department has authority to draft rules and regulations under section 10, chapter 6, Laws of 1949, and in view of the fact that the decision in the case referred to above relates only to the form of the rules and regulations as they then existed, it is our opinion that the proposed new rules and regulations, a copy of which is attached to this opinion, if promulgated, will adequately protect confidential county welfare records in federal aid programs from disclosure in any court proceeding.

Yours very truly,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General