Hanson v. Rowe

• Decision Date: 07 September 1972
• Docket Number: CA-CIV,No. 1,1
• Citation: 18 Ariz.App. 131,500 P.2d 916
• Parties: Jo Ellen HANSON, surviving parent of Patricia Joella Hanson, and as guardian ad litem of Jimmie Dale Byus, Petitioner, v. Charles ROWE and Patricia Rowe, husband and wife, State of Arizona, and Honorable Lawrence H. Doyle, Jr., Judge of the Superior Court, Respondents. 2069.
• Court: Arizona Court of Appeals

Page 916

500 P.2d 916

18 Ariz.App. 131

Jo Ellen HANSON, surviving parent of Patricia Joella Hanson, and as guardian ad litem of Jimmie Dale Byus, Petitioner, v. Charles ROWE and Patricia Rowe, husband and wife, State of Arizona, and Honorable Lawrence H. Doyle, Jr., Judge of the Superior Court, Respondents.

No. 1 CA-CIV 2069.

Court of Appeals of Arizona, Division 1, Department B.

Sept. 7, 1972.

Rehearing Denied Oct. 11, 1972.

Review Denied Nov. 21, 1972.

Terry M. Pierce, Phoenix, for petitioner.

Maupin, Wilson & Maud by Donald R. Wilson, Phoenix, for respondents.

JACOBSON, Judge.

This special action questions the propriety of the trial court's reliance upon A.R.S. § 8--519 in denying a plaintiff access to information held by the Department of Public Welfare.

Petitioner, Jo Ellen Hanson, surviving parent of Patricia Joella Hanson and as guardian ad litem of Jimmie Dale Byus, instituted an action in the Superior Court of Maricopa County against real parties in interest, Charles Rowe, Patricia Rowe and the State of Arizona, seeking damages for the wrongful death of Patricia Joella Hanson and for personal injury damages suffered by Jimmie Dale Byus at the hands of Charles Rowe. Charles Rowe is presently serving a term in the Arizona State Prison for the second degree murder of Patricia Joella Hanson. The children had been placed by the State of Arizona through the Department of Public Welfare with Charles and Patricia Rowe as foster parents.

During the course of this litigation petitioner served upon the State of Arizona the following interrogatory:

'6. State the name and last known address of any children for whom the Rowes acted as foster parents at any time.'

This interrogatory was answered in the following manner:

'Jo Ellen Hanson

'Address unknown

'Mother

'Rowes have acted as foster parents for several other children. Names and addresses of said parents are confidential under A.R.S. § 8--519.'

Petitioner by appropriate motion sought the names of the other parents indicated in that answer. After a hearing, the respondent judge issued his order in part stating:

'Therefore, the Court concludes as a matter of law, that it is not the intent of the Statute, A.R.S. § 8--519, as annotated, or to the best interest of all of the third parties involved, the permit said discovery as requested as to Interrogatory No. 6. Therefore, IT IS ORDERED denying the motion to answer the Interrogatory No. 6.'

It is this order which petitioner seeks to have reviewed by this special action.

The State of Arizona does not question the propriety of a special action to review this ruling.

Petitioner contends that a crucial element of her lawsuit against the State of Arizona hinges on proof of knowledge by the State of the unfitness of the Rowes to act as foster parents and the only source of such proof lies with other parents whose children were placed in the Rowe home. It is further contended that the only source of the identity of these parents is the State. The State neither questions the materiality of the interrogatory nor suggests that other sources are available to obtain the desired information, but contends that under A.R.S. § 8--519 such information is privileged.

The statute in question, A.R.S. § 8--519, enacted in 1970, provides in part:

'B. All records and information in the possession of the department or any child welfare agency regarding children and their parents or relatives shall be deemed confidential, and shall be disclosed only pursuant to rules by the division or by order of court.'

We note initially that the prodecessor of A.R.S. § 8--519, A.R.S. § 8--517, was couched in exactly the same language as A.R.S. § 8--519, except that it did not contain the language 'or by order of court'. Thus, on its face and by simple reference to the legislative history of this statute, it is apparent that the legislature did not intend to grant an absolute privilege against disclosure of welfare department records. However, the words 'by order of court' give no clue as to the circumstances under which the legislature intended that the court should order disclosure.

The State contends that disclosure should be granted only under circumstances which would possibly assist in the protection, welfare or treatment of the children or their families. In making this argument the State analogizes A.R.S. § 8--519 to A.R.S. § 8--120, dealing with adoption records, which by its terms allows inspection only when necessary for the 'protection, welfare or treatment of the child' and if 'ordered by the court.' It is apparently upon this argument that the trial court relied in denying access to the requested information. We are of the opinion that such a test is too stringent and is neither legally required nor required on grounds of public policy.

A landmark case in the area of discovery of confidential records kept by a governmental agency is State ex rel. Haugland v. Smythe, 25 Wash.2d 161, 169 P.2d 706, 165 A.L.R. 1295 (1946). In that case Haugland, as administrator of the county welfare department, sought to prohibit Smythe, a judge of the superior court, from gaining access to various files of the department dealing with a certain delinquent child. While factually the case is distinguishable from the case under consideration, the court sets forth one standard to be applied in requiring disclosure of governmental records by determining whether the 'injury that would inure to the relation (i.e. the confidential relationship) by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation', citing 8 Wigmore on Evidence, § 2285, at 527 (3rd ed. 1961).

Another criterion for determining whether disclosure is permissible under a confidential statute was set forth in Bell v. Bankers Life & Casualty Co., 327 Ill.App. 321, 64 N.E.2d 204 (1946), which held in an action involving private litigants:

'This prohibition (the Illinois statute granting privilege) was clearly intended to forbid voluntary disclosures but it was never intended to prevent the disclosure of the contents of official documents pursuant to the compulsion of a subpoena where the contents of such documents are pertinent to a legal inquiry.' 64 N.E.2d at 208.

For other decisions holding that privilege statutes prohibit only 'voluntary disclosures', see Jones v. Giannola, 252 S.W.2d 660 (Mo.App.1952); Maine Sugar Industries, Inc. v. Maine Industrial Bldg. Authority, 264 A.2d 1 (Me.1970); Maryland Casualty Co. v. Clintwood Bank, Inc., 155 Va. 181, 154 S.E. 492 (1930).

In our opinion, the Arizona statute prohibits more than 'voluntary disclosures' and was intended to extend to records of the welfare department a privilege against disclosure comparable with the testimonial privilege available at common law. Carr v. Monroe Mfg. Co., 431 F.2d 384 (5th Cir. 1970), cert. den., Aldridge v. Carr, 400 U.S. 1000, 91 S.Ct. 456, 27 L.Ed.2d 451 (1971). Further, we are of the opinion that the proper test to be applied by the court in determining whether the privilege should be granted is that adopted by Haugland v. Smythe, Supra, and amplified by Carr:

'The granting or withholding of any privilege requires a balancing of competing policies, 8 Wigmore, § 2285 at 527--28. The claim of governmental privilege is no exception; in fact, the potential for misuse of government privilege, and the consequent diminution of information about government available to the public, is one more factor which strongly suggests the need for judicial arbitration of the availability of the privilege.' ¹ 431 F.2d at 388.

We therefore hold, in the absence of an express absolute statutory prohibition against disclosure ², the court has the obligation under A.R.S. § 8--519 to determine whether the potential harm which may flow from the disclosure outweighs the benefit to be derived for the correct disposal of pending litigation.

It therefore follows that the trial court was in error in limiting its consideration solely to whether...