February 11, 1986 Number 7

February 11, 1986 Number 7 Maria Matava, Commissioner Department of Social Services 150 Causeway Street Boston, Massachusetts Dear Commissioner Matava: You have requested my opinion regarding the legality of proposed regulations which would allow the Department of Social Services (the "Department") to report incidents of suspected child abuse directly to district attorneys, thereby eliminating the need for so-called "letters of interchange" from this office. Hav- ing reviewed the proposed regulations, 110 C.M.R. §§ 4.50 et seq.} I opine that they will indeed obviate the need for these letters of interchange.- To explain the basis for this conclusion, a brief analysis of the powers and duties of the Attorney General and district attorneys vis-a-vis criminal prosecution is necessary. In his capacity as "chief law officer of the Commonwealth," Common- wealth V. Kozlowsky, 238 Mass. 379, 389 (1921), the Attorney General "may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights." Id. at 390-91. Of course, the management and prosecution of criminal matters are included in such suits and proceedings. Id. at 388. However, criminal prosecution is not exclusively the province of the Attorney General; the office of district attorney embodies similar powers. The statutory scheme that governs the office of district attorney and articulates its powers and duties establishes concurrent jurisdiction with the Attorney General in certain matters, including the institution and prosecution of criminal actions. G.L. c. 12, § 27. In fact, criminal prosecutions have traditionally been recognized as an ordinary function of the district attorney. Kozlowsky, 238 Mass. at 387; G.L. c. 12, § 27.-^ Since district attorneys have original jurisdiction in criminal matters, crimes or suspected violations of law may be reported directly to them without the need for intervention from this office. Therefore, it is consistent with the powers of the district attorney to receive reports of suspected child abuse and act on them without any involvement of the Attorney General. Your question also cannot be answered intelligently without a description of the letters of interchange program, an administrative scheme which is predicated upon the prosecutorial powers the district attorneys and I share. The Fair Infor- mation Practices Act, G.L. c. 66A, §§ 1 et seq. (hereafter "FIFA") generally precludes an agency such as yours from disseminating personal data of the type contained in your files to persons (including other state agencies) other than the data subject. The principal non-consensual exception to this general rule of interdiction is contained in G.L. c. 66A, § 2(c), which permits disclosure of personal data when "authorized by statute or regulations which are consistent with the purposes of [FIPA] . . . ." Id. P.D. 12 33 At the time your predecessors in office devised the letters of interchange program, there was no statute directly and explicitly authorizing the disclosure to any prosecutor of personal data contained in files pertaining to alleged incidents of child abuse. There was, however, a regulation in place authorizing all agencies within the Executive Office of Human Services to give access to such data "to authorized investigative agents of the Attorney General . . . acting in furtherance of their official duties." 101 C.M.R. § 8.06(7) (1979). A regulation so limited to investigative agents appears consistent with FIPA. See Torres v. Attorney General, 391 Mass. 1, 12 (1984). Because the Attorney General may himself obtain per- sonal data pursuant to the regulation, is statutorily authorized to interchange duties with the district attorneys, G.L. c. 12, § 27, and to designate whatever investigative agents he chooses, G.L. c. 12, § 2, your predecessor suggested that she could turn personal data over to the district attorneys ifwe would draft letters of interchange. Since your current regulations authorize direct release to the district attorneys, this cumbersome process is now unnecessary. Not only is direct reporting to the district attorney consistent with the respec- tive authority of the Attorney General and the district attorneys, but this proce- dure is also consistent with the present"^ statutory scheme relative to the reporting requirements of the Department in known or suspected cases of child abuse. As provided throughout G.L. c. 1 19, §§ 51A and 5 IB, the Department is statutorily obligated to notify a district attorney of certain incidents of reported abuse or neglect. Further, G.L. c. 119, § 51B, provides that while the Department is statutorily required to report certain instances of abuse or neglect, it is by no means precluded from reporting other incidents it believes merit involvement of the district attorney. Rather, the specific language of G.L. c. 119, § 51B(4)(e) encourages the Department of report any incident of child abuse, stating, "noth- ing herein shall be construed to prevent the department from notifying a district attorney relative to any incidents reported to the department" (emphasis sup- plied). Therefore, it appears consistent with legislative intent for the Department to report incidents of child abuse or neglect directly to the district attorney, thereby obviating the need for inter\'ention from this office. The lingering outstanding issue is whether disclosure of information to a dis- trict attorney relative to suspected cases of child abuse or neglect violates laws relating to confidential information or privileged communications. Reference to G.L. c. 1 19, § 51B(4)(e), readily disposes of this question. That section expressly relieves the Department of any liability for unlawful disclosure by so reporting: No provision of chapter sixty-six A, section one hundred and thirty-five of chapter one hundred and twelve and sections fifty- one E and fifty-one F of this chapter relating to confidential data or confidential communications shall prohibit the department from making such notifications or from providing to the district attorney any information obtained pursuant to clause (1).^ In conclusion, I believe the proposed regulations, 110 C.M.R. §§ 4.50 et seq., which allow direct reporting of incidents of child abuse to the district attorneys, totally eliminate the need for my participation in such reporting by way of letters of interchange. 34 P.D. 12 Very truly yours, FRANCIS X. BELLOTTI ATTORNEY GENERAL ' The proposed regulations provide for mandatory reporting of certain cases and discretionary reporting of others and establish procedures for releasing background information and documents to the district attorneys. ^ To the extent you have asked me to go further and opine as to the general legality of the regulations, I must decline to do so for two reasons. First, like my predecessors, I traditionally decline to answer such hypothetical, abstract questions; and, second, assessing the validity of regulations is primarily a judicial function. See G.L. c. 30A, § 7. ^ While it has long been held that district attorneys may prosecute criminal matters, such power is tempered by the fact that they must accede to the supervision and intervention of the Attorney General, if and when he chooses to exercise it. Burlington V. District Attorney of the Northern District, 381 Mass. 717 (1980); Kozlowsky, 238 Mass. at 390. '* At the time procedures relative to "letters of interchange" were established, G.L. c. 119, § 51B, was not specific as to the exchange of information between the Depart- ment and the Attorney General or district attorneys. See St. 1973, c. 1076. However, the enactment of St. 1983, c. 288, articulates a statutory scheme encouraging the free flow of information to the district attorneys. ^ Subsection (l)of§51B relates to investigations and accumulation of information regarding any reported case of suspected abuse or neglect. P.D. 12 35