California Attorney General Opinion No. 79-517

1 79-517 TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General _________________________ OPINION of GEORGE DEUKMEJIAN Attorney General Anthony S. DaVigo Deputy Attorney General : : : : : : : : : : : No. 79–517 September 18, 1979 SUBJECT: ACCESS TO HEALTH AND WELFARE RECORDS—Section 602 (a) (9) of title 42, United States Code, and section 10850 of the Welfare and Institutions Code do not bar the Auditor General from access to the health and welfare records during the course of a performance audit. The Honorable Richard Robinson, Assemblyman, Seventy-Second District, has requested an opinion on the following questions: 1. Do section 602 (a) (9) of title 42, United States Code, and related regulations (45 C.F.R., § 205.50) bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to the health and welfare records, in the custody of said agency, of individual recipients of public assistance? 2. Does section 10850 of the Welfare and Institutions Code bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to the health and welfare records, in the custody of said agency, of individual recipients of public assistance? 2 79-517 CONCLUSIONS 1. Section 602 (a) (9) of title 42, United States Code, and related regulations do not bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to records of disbursement, including names, addresses, and amounts received by each recipient, in the custody of said agency. However, said provisions bar the Auditor General from access to other information, which identifies by name or address any applicant or recipient, in the custody of said agency. 2. Section 10850 of the Welfare and Institutions Code does not bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to records of disbursement of funds, including lists of names of applicants and recipients, in the custody of said agency. However, said provision bars the Auditor General from access to other information, which identifies by name or address any applicant or recipient, in the custody of said agency. ANALYSIS The first inquiry is whether section 602(a) (9) of title 42, United States Code, and related regulations bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to the health and welfare records, in the custody of said agency, of individual recipients of public assistance. The records which are the subject of the inquiry would include, in addition to basic disbursement data consisting of name, address, and amounts distributed to the recipient, such information as the recipient’s sources of income, personal property, assets, liabilities, marital status, family background, health history, and employment history. Although the inquiry refers generally to health and welfare records, both the inquiry and this analysis are focused specifically on the Aid to Families with Dependent Children (AFDC) program established under part A of title IV of the Social Security Act, title 42, United States Code, sections 601 to 610. This categorical public assistance program, based on a scheme of cooperative federalism, is financed largely by the federal government on a matching fund basis, and is administered by the states. (King v. Smith (1968)392 U.S. 309, 316.) AFDC is an elective program in which California has chosen to participate. However, title 42, United States Code, section 602 places certain limitations on the right of a state to receive social security funds to finance its social welfare program. One such limitation, set forth at section 602(a) (9) of title 42, United States Code, relates to a state’s power to permit disclosure of information concerning applicants and recipients: “A State plan for aid and services to needy families with children must . . . provide safeguards which restrict the use or disclosure of information 3 79-517 concerning applicants or recipients to purposes directly connected with (A) the administration of the plan of the State approved under this part, the plan or program of the State under part B, C, or D of this subchapter or under subchapter I, X, XIV, XVI, XIX, or XX of this chapter, or the supplemental security income program established by subchapter XVI of this chapter, (B) any investigation, prosecution, or criminal or civil proceeding, conducted in connection with the administration of any such plan or program, and (C) the administration of any other Federal or federally assisted program which provides assistance, in cash or in kind, or services, directly to individuals on the basis of need; and the safeguards so provided shall prohibit disclosure, to any committee or a legislative body, of any information which identifies by name or address any such applicant or recipient; . . . .” Another provision of the Social Security Act, title 42, United States Code, section 1306a, provides as follows: “No State or any agency or political subdivision thereof shall be deprived of any grant-in-aid or other payment to which it otherwise is or has become entitled pursuant to title I (other than section 3 (a) (3) thereof), IV, X, XIV, or XVI (other than section 1603(a) (3) thereof) of the Social Security Act, as amended [subchapter I (other than section 303 (a) (3) thereof), IV, X, XIV, or XVI (other than section 1383 (a) (3) thereof) of this chapter], by reason of the enactment or enforcement by such State of any legislation prescribing any conditions under which public access may be had to records of the disbursement of any such funds or payments within such State, if such legislation prohibits the use of any list or names obtained through such access to such records for commercial or political purposes.” (Brackets in original.) The latter provision, hereinafter referred to as the “Jenner Amendment,” was enacted as part of the Revenue Act of 1951 (65 Stat. 569; Pub. L. 82–183), and pertains to the various public welfare programs supported under the Social Security Act including AFDC. California has enacted legislation, Welfare and Institutions Code section 10850, infra, providing inter alia for access by the Joint Legislative Audit Committee to records of disbursement under AFDC, and prohibiting the use of information, including names of applicants and recipients, for commercial or political purposes. The issue presented for resolution is whether the provisions of title 42, United States Code, section 602 (a) (9) and the Jenner Amendment bar the Auditor General from access to the records of individual AFDC recipients. Clearly, the Joint Legislative Audit Committee is a “committee” within the meaning of the last clause of section 602(a)(9). (See Gov. Code, §§ 10501, 10502.) The Auditor General is appointed by and serves at the 4 79-517 pleasure of the Joint Legislative Audit Committee. (Gov. Code, § 10504.) The salary of the Auditor General is fixed by the committee. (Gov. Code, §§ 10504, 10522.) The committee determines the policy of, establishes priorities and assigns all work to be done by the Auditor General. (Gov. Code, §§ 10501, 10503.) Finally, the authority of the office of Auditor General is “under the direction” of the committee. (Gov. Code, § 10500.) In our view, therefore, the Auditor General is a legislative officer and falls within the proscription of the last clause of section 602 (a) (9) pertaining to any committee or legislative body. The language of title 42, United States Code, section 602(a) (9) is unequivocal: a state plan shall prohibit disclosure, to any committee or a legislative body, of any information which identifies by name or address any AFDC applicant or recipient. Thus, even if the Auditor General would otherwise fall within any of the categories set forth in the first clause of section 602 (a) (9), access to information which identifies by name or address any AFDC applicant or recipient would nevertheless be foreclosed. The Jenner Amendment, on the other hand, does not expressly permit disclosure of records of disbursement; rather, it provides that if, pursuant to state legislation, public access is allowed, subject to specified conditions, federal funds will not be withheld on that basis alone. Nor does the amendment expressly permit the disclosure of names; rather, it provides that any such state legislation must prohibit the use of any names which may be obtained through such access to such records for commercial or political purposes. Nevertheless, by removing the primary enforcement mechanism, i.e., the termination of federal funds (see tit. 42, U.S.C. § 604(a) (2)), the practical effect and import of the amendment is to permit the disclosure by the state if it so chooses of names, addresses, and amounts received by each recipient under the conditions specified. (Cf. Michigan Welfare Rights Organization v. Dempsey (ED Mich. 1978) 462 F. Supp. 227, 236.) We first examine the historical perspective of the subject enactments. The Social Security Act of 1935 (49 Stat. 627) contained no provision restricting disclosure of information concerning applicants and recipients of aid. In 1939, the Act was amended (53 Stat. 1379) to require the states to: “. . . provide safeguards which restrict the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of aid to dependent children.” The Jenner Amendment was enacted in 1951. Thereafter, in January 1975, the disclosure provision was amended (88 Stat. 2360; Pub. L. 93–647, § 101(c) (2)) to require the states to: 5 79-517 “. . . provide safeguards which permit the use or disclosure of information concerning applicants or recipients only to (A) public officials who require such information in connection with their official duties, or (B) other persons for purposes directly connected with the administration of aid to families with dependent children.” The provision was finally amended to its present form in August 1975. (89 Stat. 436; Pub. L. 94–88, § 207.) Thus, section 602 (a) (9) now declares that as a condition of compliance with the act, the states must provide safeguards to limit the disclosure and use of information divulged by AFDC applicants to three specifically defined purposes. In addition, access to the names and addresses of applicants and recipients is specifically denied to legislative bodies directly or through their committees. In view of the foregoing, one federal district court has held that the Jenner Amendment does not govern or modify the subsequently enacted express prohibition against legislative access, that it would be illogical to deny access to legislative bodies and committees while permitting access to the public generally, and that the Jenner Amendment is therefore wholly inoperative with respect to the restrictions set forth in title 42, United States Code, section 602(a) (9). (Michigan Welfare Rights Organization v. Dempsey, supra, 462 F. Supp. 227, 237.) Two principles of statutory construction would appear to lend support to the view that the Jenner Amendment does not prevail over the prohibition against legislative access. First, where two statutes enacted at different times treat of the same subject, the later expression of legislative intent will prevail over the earlier. (City of Petaluma v. Pacific Telephone and Telegraph Co. (1955) 44 Cal. 2d 284, 288; 57 Ops. Cal. Atty. Gen. 136, 139 (1974).) Here, the 1975 amendment to section 602(a) (9) establishing the express prohibition with respect to legislative access must be regarded as the later expression. Second, where two statutes treat the same subject, one being specific and the other general, the former will prevail to the extent of its application. (Brill v. County of Los Angeles (1940) 16 Cal. 2d 726; 58 Ops. Cal. Atty. Gen. 688, 689 (1975).) The Jenner Amendment deals generally with categorical aid programs and pertains to the general public. Section 602 (a) (9) deals specifically with AFDC programs and pertains to legislative access specifically. We think, however, that another federal court would hold that the two statutes may be harmonized so as to give effect and significance to both. Section 602 (a) (9) is an expression of congressional concern with the legitimate privacy interests of AFDC beneficiaries. (Cf. Jaffess v. Secretary, HEW (1975)393 F. Supp. 626, 629.) The Jenner Amendment is a special statute which creates a specific exception upon certain conditions which wholly satisfy the privacy interests of social security, including AFDC beneficiaries. The reference in the amendment to public access” necessarily and logically includes the Legislature and its committees and officers, including the Auditor General. 6 79-517 The general rule is that where the same subject matter is covered by inconsistent provisions, one of which is special and the other general, the special one, whether or not enacted first, is an exception to the general statute and controls unless an intent to the contrary clearly appears. (Warne v. Harkness (1963) 60 Cal. 2d 579, 588; 57 Ops. Cal. Atty. Gen. 252, 262 (1974); 57 Ops. Cal. Atty. Gen. 109, 112 (1974); 19 Ops. Cal. Atty. Gen. 49, 51 (1952); 17 Ops. Cal. Atty. Gen. 32, 33(1951).) Moreover, the statutes in question have been administratively interpreted by the Department of Health, Education and Welfare. (45 C.F.R., § 205.50.) These regulations were amended in June 1975 (vol. 40 Fed. Reg., p. 27154) following the January 1975 amendment of section 602 (a) (9), and in November 1975 (vol. 40 Fed. Reg., p. 52375) following the August 1975 amendment of that section. The regulations provide in pertinent part as follows: “(a) State plan requirements. A State plan under title IV-A of the Social Security Act, except as provided in paragraph (e) of this section, must provide that: “(1) Pursuant to State statute which imposes legal sanctions: “(i) The use or disclosure of information concerning applicants and recipients will be limited to purposes directly connected with: “(A) The administration of the plan of the State approved under title IV-A, the plan or program of the State under title IV-B, IV-C, or IV-D, or under title I, X, XIV, XVI (AABD), XIX, or XX or the supplemental security income program established by title XVI (SSI). Such purposes include establishing eligibility, determining amount of assistance, and providing services for applicants and recipients. “(B) Any investigation, prosecution, or criminal or civil proceeding conducted in connection with the administration of any such plans or programs; and “(C) The administration of any other Federal or federally assisted program which provides assistance, in cash or in kind, or services, directly to individuals on the basis of need. Under the requirements of this paragraph (a) (l) (i), disclosure to any committee or legislative body (Federal, State, or local of any information that identifies by name and address any such applicant or recipient shall be prohibited; . . . 7 79-517 “(ii) The State agency has authority to implement and enforce the provisions for safeguarding information about applicants and recipients; “(iii) Publication of lists or names of applicants and recipients will be prohibited. “(2) The agency will have clearly defined criteria which govern the types of information that are safeguarded and the conditions under which such information may be released or used. Under this requirement: “(i) Types of information to be safeguarded include but are not limited to: “(A) The names and addresses of applicants and recipients and amounts of assistance provided (unless excepted under paragraph (e) of this section); “(B) Information related to the social and economic conditions or circumstances of a particular individual; “(C) Agency evaluation of information about a particular individual; “(D) Medical data, including diagnosis and past history of disease or disability, concerning a particular individual. “(ii) The release or use of information concerning individuals applying for or receiving financial assistance or services is restricted to persons or agency representatives who are subject to standards of confidentiality which are comparable to those of the agency administering the financial assistance or services programs. “(iii) The family or individual is informed whenever possible of a request for information from an outside source, and permission is obtained to meet the request in an emergency situation when the individual’s consent for the release of information cannot be obtained, he will be notified immediately. “(iv) In the event of the issuance of a subpoena for the case record or for any agency representative to testify concerning an applicant or recipient, the court’s attention is called, through proper channels to the statutory provisions and the policies or rules and regulations against disclosure of 8 79-517 information. “(v) The same policies are applied to requests for information from a governmental authority, the courts, or a law enforcement official as from any other outside source. “. . . . . . . . . . . . . . . . . . . . “(e) Exception. In respect to a State plan under title I, IV-A, X, XIV, or XVI of the Social Security Act, exception to the requirements of paragraph (a) (1) (iii) of this section may be made by reason of the enactment or enforcement of State legislation, prescribing any conditions under which public access may be had to records of the disbursement of funds or payments under such titles within the State, if such legislation prohibits the use of any list or names obtained through such access to such records for commercial or political purposes.” (Second and third emphases added.) These regulations begin at the outset of paragraph (a) with the words “. . . except as provided in paragraph (e). . . .” Paragraph (e) is a substantial reiteration of the Jenner Amendment. It is clear that the Department of Health, Education and Welfare interprets the Jenner Amendment as a limitation upon the nondisclosure provisions of section 602(a) (9) of title 42, United States Code. It is well settled that where the terms of a statute are ambiguous, the construction of the statute by the officials charged with its administration must be given great weight. (Rivera v. City of Fresno (1971) 6 Cal. 3d 132, 140; 58 Ops. Cal. Atty. Gen. 638, 643 (1975).) The scope of the Jenner Amendment is, however, confined to records of disbursement, including names, addresses, and amounts received by each recipient. Consequently, although the amendment prevails over the provisions of section 602 (a) (9) of title 42, United States Code, it is nevertheless expressly limited to information contained in disbursement records. Section 602(a) (9) which restricts the use or disclosure of “information concerning applicants or recipients” is not so limited. (Cf. 45 C.F.R., § 205.50(a) (2)(i).) Hence, access to any information in excess of that contained in disbursement records which identifies by name or address any applicant or recipient would remain subject to the constraints of section 602 (a) (9) It is concluded that section 602 (a) (9) of title 42, United States Code, and related regulations do not bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to records of disbursement, including names, addresses, and amounts received by each recipient, in the custody of said agency. However, said provisions bar the Auditor General from access to information in excess of 9 79-517 that contained in records of disbursement, which identifies by name or address any applicant or recipient, in the custody of said agency. The second inquiry is whether section 10850 of the Welfare and Institutions Code (§ 10850, post) bars the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to the health and welfare records, in the custody of said agency, of individual recipients of public assistance. Again, both the inquiry and this analysis are focused specifically on the Aid to Families with Dependent Children program established under Part A of title IV of the Social Security Act, title 42, United States Code, sections 601 to 610. Section 10850 provides in pertinent part as follows: “(a) Except as otherwise provided in this section, all applications and records concerning any individual made or kept by any public officer or agency in connection with the administration of any provision of this code relating to any form of public social services for which grants-in-aid are received by this state from the United States government shall be confidential, and shall not be open to examination for any purpose nor directly connected with the administration of such program, or any investigation, prosecution, or criminal or civil proceeding conducted in connection with the administration of any such program. The disclosure of any information which identifies by name or address any applicant for or recipient of such grants-in-aid to any committee or legislative body is prohibited, except as provided in subdivision (b). “(b) Except as otherwise provided in this section, no person shall publish or disclose or permit or cause to be published or disclosed any list of persons receiving public social services. Any county welfare department in this state may release lists of applicants for, or recipients of, public social services, to any other county welfare department or the State Department of Social Services or the State Department of Health Services, and such lists or any other records shall be released when requested by any county welfare department or the State Department of Social Services or the State Department of Health Services. Such lists or other records shall only be used for purposes directly connected with the administration of public social services. Except for such purposes, no person shall publish, disclose, or use or permit or cause to be published, disclosed, or used any confidential information pertaining to an applicant or recipient. “Any county welfare department, the State Department of Social Services, or the State Department of Health Services may provide the Joint Legislative Audit Committee with access to records of the disbursement of 10 79-517 funds or payments, including lists of names of applicants and recipients, under Titles I, IV-A, X, XIV, or XVI of the Social Security Act, and such records shall be released when requested by the committee. The Joint Legislative Audit Committee may use information from such records only for the purpose of investigating the administration of public social services under such titles and reporting the results of any such investigation to the Legislature, and shall not use such information for commercial or political purposes. In any case where disclosure is authorized under this paragraph, the Joint Legislative Audit Committee shall not disclose the identity of any applicant or recipient, except in the case of a criminal or civil proceeding conducted in connection with the administration of public social services. “However, this section shall not prohibit the furnishing of such information to other public agencies to the extent required for verifying eligibility or for other purposes directly connected with the administration of public social services, or to county superintendents of schools or superintendents of school districts only as necessary for the administration of federally assisted programs providing assistance in cash or in-kind or services directly to individuals on the basis of need. Any person knowingly and intentionally violating the provisions of this subdivision is guilty of a misdemeanor. “. . . . . . . . . . . . . . . . . . . . “(f) The provisions of this section shall be operative only to the extent permitted by federal law.” Subdivision (b) of section 10850 provides for access by the Joint Legislative Audit Committee to records of disbursement of funds or payments, including lists of names of applicants and recipients of benefits under designated categorical aid programs including AFDC. As previously noted, the Auditor General is an officer of the committee, and may, therefore, receive such information directly or through the committee. However, access is specifically limited to disbursement records. Under the provisions of subdivision (a), all other information which identifies by name or address any applicant or recipient is confidential and may not be disclosed. In accordance with the requirements of the Jenner Amendment, section 10850 expressly provides that information acquired under subdivision (b) thereof shall not be used for commercial or political purposes. It is clear that section 10850 was enacted to comply with federal law and that the prerequisites established as a condition of federal assistance are satisfied. In this regard, subdivision (f) of section 10850 assures that its provisions shall be operative only to the extent permitted by federal law. 11 79-517 The provisions pertaining generally to the Auditor General are contained in the Government Code, title 2, division 2, part 2, chapter 4, beginning with section 10500. The primary duties of the Auditor General are to examine and report annually upon the financial statements prepared by the executive branch of the state and to perform such other related assignments, including performance audits, as may be requested by the Legislature. (Gov. Code, § 10500.) In this regard, Government Code section 10528 further provides: “The Auditor General, with the approval of the Joint legislative Audit Committee, shall examine and report annually upon the financial statements prepared by the executive branch of the state to the end that the Legislature will be informed as to the adequacy of such financial statements in compliance with generally accepted accounting principles applied on a basis consistent with that of the preceding fiscal year. In making such examination, he is authorized to make such audit examination of accounts and records, accounting procedures and internal auditing performance as the Joint legislative Audit Committee may determine and specifically designate to be necessary to disclose all material facts necessary to proper reporting to the Legislature in accordance with the statement of purposes set forth in Section 10500. He shall make such special audits and investigations, including performance audits, of any state agency whether created by the Constitution or otherwise, as requested by the Legislature or any committee of the Legislature.” Government Code section 10527 provides as follows: “The Auditor General during regular business hours shall have access to, and authority to examine, any and all books, accounts, reports, vouchers, correspondence files, and other records, bank accounts, and money or other property, of any agency of the State whether created by the Constitution or otherwise, and it shall be the duty of any officer or employee of any such agency, having such records or property in his possession or under his control, to permit access to, and examination thereof upon the request of the Auditor General or his authorized representative. Any officer or person who shall fail or refuse to permit such access and examination, shall be guilty of a misdemeanor.” These provisions of the Government Code do not enlarge upon the right of access as provided in section 10850, subdivision (b). To the extent that state statutes permit greater access than allowed under federal law, they are invalid. Having elected to participate in the federal social welfare program, a state must comply with the mandatory requirements established by the Social Security Act and implemented by regulations promulgated by the 12 79-517 Department of Health, Education and Welfare. (Burnham v. Woods (1977) 70 Cal. App. 3d 667, 673; Garcia v. Swoap (1976) 63 Cal. App. 3d 903, 909; In re Jeannie Q. (1973) 32 Cal. App. 3d 288, 297–298; X v. McCorkle (1970) 333 F. Supp. 1109, 1114, affd. 404 U.S. 23.) The courts have held invalid state regulations inconsistent with congressional policy regarding AFDC recipients. (Cf. King v. Smith, supra, 392 U.S. 309; Rosado v. Wyman (1970) 397 U.S. 397; Van Lare v. Hurley (1975) 421 U.S. 338; Lewis v. Martin (1970) 397 U.S. 552; Townsend v. Swank (1971) 404 U.S. 282.) Moreover, where two statutes’ treatment of the same subject, one being specific and the other general, the former will prevail to the extent of its application. (21 Ops. Cal. Atty. Gen. 1, 5 (1953).) While the Government Code provisions pertain generally to the access rights of the Auditor General, section 10850 deals specifically with access to records of individual recipients of benefits under certain federal categorical aid programs. Consequently, the specific limitations of section 10850 prevail over the general provisions of the Government Code. It is concluded that section 10850 does not bar the Auditor General from access during the course of a performance audit of the Health and Welfare Agency to records of disbursement of funds, including lists of names of applicants and recipients, in the custody of said agency. However, said provision bars the Auditor General from access to information in excess of that contained in records of disbursement, which identifies by name or address any applicant or recipient, in the custody of said agency. *****