McCLATCHY NEWSPAPERS INC v. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES

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Court of Appeal, Fifth District, California.

McCLATCHY NEWSPAPERS, INC., et al., Plaintiffs and Respondents, v. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendant and Appellant.*

No. F017141.

Decided: August 05, 1992

Phillip S. Cronin, County Counsel, and Howard K. Watkins, Deputy, Fresno, for defendant and appellant. U.S. Dept. of Justice, Frank L. Dell'Acqua, Chief Counsel, Robert A. Dubleu, Chief of Litigation, Madeline Nesse, Atty., Stuart M. Gerson, Asst. Atty. Gen., William Kantner and Marleigh D. Dover, Washington, D.C., as amici curiae on behalf of defendant and appellant. Steinhart & Falconer, James F. Brelsford, Roger R. Myers and Alison A. Barratt–Green, San Francisco, for plaintiffs and respondents. Bird, Marella, Boxer, Wolpert & Matz, Dorothy Wolpert and James B. Morales, Los Angeles, as amici curiae on behalf of plaintiffs and respondents.

This is an appeal from a juvenile court order granting a newspaper's petition pursuant to Welfare and Institutions Code 1 section 827.   The petition sought the release of Child Protective Services (CPS) records pertaining to two deceased minors.   After extensive hearings, the juvenile court ordered disclosure to the newspaper of numerous documents from the CPS files, all of which were redacted by the court to mask the identity of individuals whose names appeared in the records.   As we will explain, the juvenile court should have denied the petition because section 10850 controls over section 827 and prohibits disclosure of the documents in issue to a newspaper.

STATEMENT OF CASE AND FACTS

In early 1991, Alex Pulaski, a reporter for The Fresno Bee, petitioned the Fresno County Juvenile Court, on his own behalf and on behalf of the newspaper, for the release of all records maintained by CPS which related to the minors, Tarshawn J. and Carlos V.   According to the petitions, these minors were dead and the information contained in the records was necessary to serve the public's interest in the manner by which CPS handled cases involving potential child abuse.   In a later declaration supporting disclosure, Pulaski stated the newspaper sought to determine what information the Fresno County Department of Social Services (DSS) possessed before the minors' deaths and what steps, if any, it took to protect the children from parental abuse.   DSS filed opposition to both petitions.

After numerous hearings, including in-camera proceedings to review the relevant records, the juvenile court, in June 1991, authorized disclosure of the CPS records solely to the newspaper.   The court concluded it had discretion under section 827 to release the records to the newspaper.   It also decided section 10850 did not prohibit such disclosure, because the records were directly relevant to an investigation conducted by the newspaper in connection with the administration of a social services program.   The court explained it had balanced the competing interests and concluded public disclosure might help draw attention to the terrible plight of children in Fresno County and the ever shrinking resources allocated to both them and the system supposedly designed to protect them.   The court believed the deaths of the two children whose records were sought represented “the ultimate in system failure.”

The juvenile court also issued a protective order restricting the newspaper's use of the records and the information contained in them.   Thereafter, the newspaper filed a petition for an extraordinary writ with this court, seeking relief from some of the provisions of the protective order.   We issued a peremptory writ of mandate directing the juvenile court to vacate its order and to reconsider the proposed release of the CPS records in light of San Bernardino County Dept. of Public Social Services v. Superior Court (1991) 232 Cal.App.3d 188, 283 Cal.Rptr. 332.

On remand, the juvenile court expressed the belief our grant of writ relief constituted a determination that a certain paragraph in the protective order was unconstitutional under the San Bernardino decision.   The juvenile court therefore modified this condition.   In all other respects, the disclosure orders remained unchanged.

Thereafter, DSS filed a petition for writ of supersedeas, which this court granted, and a notice of appeal.

DISCUSSION

 Introduction

DSS challenges the juvenile court's disclosure order on a myriad of grounds.   Primarily, it asserts the order violated section 827 and section 10850.   With respect to section 827, DSS contends the juvenile court erred because (1) the statute does not apply to CPS records;  and (2) the statute does not authorize the court to release such records to a newspaper.   With respect to section 10850, DSS maintains the exception to confidentiality relied upon by the juvenile court applies only to investigations conducted by a government agency, not a newspaper.   Predictably, the newspaper disagrees with every argument advanced by DSS.

 We are not bound by the trial court's interpretation or construction of the relevant statutes;  these are issues of law which we may assess de novo.   (County of Madera v. Superior Court (1974) 39 Cal.App.3d 665, 668, 114 Cal.Rptr. 283.)

 Section 827 provides in relevant part:

“(a) Except as provided in Section 828,2 a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in any such case or made available to the probation officer in making his or her report, or to the judge, referee or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer, may be inspected only by court personnel, the district attorney, the minor who is the subject of the proceeding, his or her parents or guardian, the attorneys for the parties, and such other persons as may be designated by court order of the judge of the juvenile court upon filing a petition therefor.   Child protective agencies, as defined in Section 11165.9 of the Penal Code, also shall be entitled to inspect these documents upon the filing of a declaration under penalty of perjury stating that access to these documents is necessary and relevant in connection with and in the course of a criminal investigation or a proceeding brought to declare a person a dependent child or ward of the juvenile court.

“Any records or reports relating to a matter within the jurisdiction of the juvenile court prepared by or released by the court, a probation department, or the county department of social services, any portion of those records or reports, and information relating to the contents of those records or reports, shall not be disseminated by the receiving agencies to any persons or agencies, other than those persons or agencies authorized to receive documents pursuant to this section.   Further, any of those records or reports, any portion of those records or reports, and information relating to the contents of those records or reports, shall not be made attachments to any other documents without the prior approval of the presiding judge of the juvenile court, unless they are used in connection with and in the course of a criminal investigation or a proceeding brought to declare a person a dependent child or ward of the juvenile court.”  (Emphasis added.)

The juvenile court's conclusion the CPS records were subject to section 827 was founded upon Lorenza P. v. Superior Court (1988) 197 Cal.App.3d 607, 610, 242 Cal.Rptr. 877.   At issue in Lorenza P. was whether the juvenile court erred in releasing CPS information to a district attorney's office in its prosecution of a mother accused of killing her minor daughter.   (Ibid.)  The mother, rather than the department of social services, appealed.   The appellate court held the CPS records were within section 827 because they were documents pertaining to a juvenile.  (Id. at p. 610, 242 Cal.Rptr. 877.)

We find it unnecessary to consider any of the issues raised with respect to section 827.   Even if the CPS documents are within the purview of this statute, the discretionary authority given by the section to the juvenile court is specifically restricted by section 10850 with respect to the documents in issue here.   In addition, as we will explain, section 10850 prohibits disclosure of the CPS records to the press.

 Special Statute

Section 10850, subdivision (a), provides:

“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 not 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).”

It is undisputed CPS is a public office which administers public social services and receives grants in aid for such purposes from the United States.   It is also undisputed that all the documents covered by the juvenile court's order are records “made or kept” 3 by this agency.

The primary thrust of section 10850 is to prohibit publication or disclosure of social services recipients' records to the public.  (Haskins v. San Diego Dept. of Public Welfare (1980) 100 Cal.App.3d 961, 969, 161 Cal.Rptr. 385.)   Three classes of information are made confidential by section 10850:  (1) all applications and records concerning an individual relating to the administration of public social services (§ 10850, subd. (a));  (2) any information which identifies, to “any committee or legislative body,” any applicant or recipient of public social services (§ 10850, subd. (a));  and (3) any list of recipients of public social services (§ 10850, subd. (b)).  (Jonon v. Superior Court (1979) 93 Cal.App.3d 683, 690–691, 155 Cal.Rptr. 822.)   Only the first of these categories is in issue here.

The newspaper does not believe section 10850 has any application or effect in this instance.   It claims section 827 is a special statute that takes precedence over section 10850, a general statute.   In fact, just the opposite is the case.

 A special statute is one which deals expressly with a particular subject;  it will take precedence over a conflicting general statute on the same subject.  (Intel Corp. v. USAIR, Inc. (1991) 228 Cal.App.3d 1559, 1564, 279 Cal.Rptr. 569;  State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 238, 252 Cal.Rptr. 162.)   Whether a statute is special or general is determined by comparing their respective goals and subject matter.  (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 21–22, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Both section 827 and section 10850 concern the confidentiality of documents.   On their face, both potentially cover a wide variety of papers.   Section 827 includes records commonly found in the file of a juvenile court proceeding, such as petitions, minute orders, probation officer reports, expert witness reports, and letters.   In addition, other documents not in the physical custody of the juvenile court or the probation officer may fall within the ambit of section 827.   For example, police incident reports involving juveniles are confidential under the provisions of section 827.  (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 781, 94 Cal.Rptr. 813, 484 P.2d 981.)

Similarly, the records covered by section 10850 are numerous.   Indeed, the quantity and types of documents which probably fall within the protection of this statute are undoubtedly vast, and include the papers of a variety of public agencies which provide a multitude of social services.   However, when limited to those pertaining to juveniles, the documents comprehended by section 10850, such as those involved in this case, comprise only a segment of the papers potentially within the jurisdiction of the juvenile court under section 827.   Put another way, assuming section 827 includes all the juvenile records covered by section 10850, section 10850 includes only a portion of the juvenile records covered by section 827.

While both statutes allow for limited disclosure of the confidential records they encompass, each provides a different standard by which the release of confidentiality must be assessed.   Under Section 827, whether a document will remain confidential depends upon the discretionary judgment of the juvenile judge, who may rely upon objective as well as subjective and policy factors in exercising his or her “exclusive authority” under section 827 (T.N.G. v. Superior Court, supra, 4 Cal.3d at p. 778, 94 Cal.Rptr. 813, 484 P.2d 981).   This is not so with section 10850.   It specifically describes the conditions under which a court may release confidential papers.  (See Sinacore v. Superior Court (1978) 81 Cal.App.3d 223, 225, 146 Cal.Rptr. 302.)4  Thus, the court's role in the implementation of section 10850 is not discretionary;  rather, the court is only authorized to decide whether the objective facts support the existence of the exception permitting disclosure.   If such facts do not exist, the document must remain confidential, no matter how valid or persuasive the argument in favor of disclosure may be.5

For these reasons, we conclude section 827 is the general statute and section 10850 is the special statute when records made or kept by CPS are involved.  Section 827 covers a broader spectrum of juvenile documents than does section 10850.   Furthermore, section 10850 imposes a non-discretionary standard of confidentiality while section 827 does not.   Section 10850 is therefore entitled to preference over section 827.

 This ordering of the two provisions promotes harmony between them.  (Civ.Code § 1859;  Lara v. Board of Supervisors (1976) 59 Cal.App.3d 399, 411, 130 Cal.Rptr. 668.)   Statutes which overlap in their treatment of a subject should be construed together and reconciled to the extent possible.  (Intel Corp. v. USAIR, Inc., supra, 228 Cal.App.3d at p. 1564, 279 Cal.Rptr. 569.)   If it is reasonable to do so, effect should be given to both.  (Tripp v. Swoap, (1976) 17 Cal.3d 671, 679, 131 Cal.Rptr. 789, 552 P.2d 749.)   It is not possible to give full effect to section 827 without rendering section 10850 entirely ineffective vis-a-vis CPS records.   A juvenile court order under section 827 directing disclosure of juvenile records deemed confidential by section 10850 would write out of existence section 10850's protection for such information.   On the other hand, it is entirely feasible to give complete effect to section 10850 while at the same time largely preserving the juvenile court's discretionary powers under section 827.   By our treatment of section 10850 as an exception to section 827 (Rose v. State of California (1942) 19 Cal.2d 713, 723–724, 123 P.2d 505), the juvenile court will retain discretion to disclose those juvenile records not protected by section 10850.   However, with respect to CPS documents protected by section 10850—assuming, as we have, that such documents are within the scope of section 827—the juvenile court may only determine whether the exception in section 10850 applies.   If we have ranked the statutes contrary to the intentions of the Legislature, it may amend one or both in order to make its wishes clear.

We find nothing in section 827 which precludes the order of preference we have established.   Subdivision (b)(1) of section 827 does make reference to “a limited exception to juvenile court record confidentiality in cases involving serious acts of violence.”   Yet, it is clear from the rest of the subdivision that it applies only to the prevention of, and the protection of school officials and pupils from, violence committed by juveniles on school grounds.

The California Supreme Court's opinion in T.N.G. v. Superior Court, supra, 4 Cal.3d 767, 94 Cal.Rptr. 813, 484 P.2d 981, which arguably expanded the scope of section 827, did not address section 10850.   It is therefore not authority for the proposition the juvenile court has discretion under section 827 to release records made confidential by section 10850.   In T.N.G., the Supreme Court construed section 827 to include police records regarding juvenile detentions which did not result in juvenile court proceedings.  (Id. at pp. 779–781, 94 Cal.Rptr. 813, 484 P.2d 981.)

“Since the entire Juvenile Court Law places the responsibility of providing care and protective guidance for youths upon the juvenile court, section 827 provides the means for assuring to the juvenile court the authority to fulfill that responsibility without interference by third parties.”  (T.N.G., supra, 4 Cal.3d at p. 781, 94 Cal.Rptr. 813, 484 P.2d 981.)

As one court later analyzed the matter, T.N.G. found this expansion of section 827's coverage necessary to prevent third parties from thwarting the rehabilitative purposes of the juvenile court by using the records to the detriment of minors.  (Wescott v. County of Yuba (1980) 104 Cal.App.3d 103, 107, 163 Cal.Rptr. 385.)   The T.N.G. court held the juvenile court has the exclusive authority to determine the extent to which juvenile records may be released to third parties.  (T.N.G. v. Superior Court, supra, 4 Cal.3d at p. 778, 94 Cal.Rptr. 813, 484 P.2d 981.)   However, it did not rule that any record relating to a juvenile was necessarily a juvenile record over which the juvenile court had discretionary authority under section 827.   Moreover, the police reports in issue were, in general, public records.   Thus, T.N.G. read section 827 expansively, in conjunction with other authorities and statutes which established the confidentiality of juvenile records, and brought police reports of juvenile detentions within the scope of section 827, in order to preserve confidentiality.   Here, unlike the police records involved in T.N.G., the CPS documents are not open to public view;  section 10850 expressly deems them confidential.

The principal case cited by the newspaper, Wescott v. County of Yuba, supra, does not support a contrary conclusion.   In particular, the newspaper relies upon the following language in Wescott:

“Section 827 ․ expressly covers the confidentiality of juvenile court records and their release to third parties, and is controlling over the Public Records Act to the extent of any conflict.”  (Wescott, supra, 104 Cal.App.3d at p. 106, 163 Cal.Rptr. 385.)

Wescott concerned police investigation records about a shooting incident involving several juveniles.   A parent of a minor injured during the episode sought the documents for use in a civil action she had instituted.   (Wescott, supra, 104 Cal.App.3d at p. 105, 163 Cal.Rptr. 385.)   Government Code 6254, subdivision (f), part of the Public Records Act, permitted the disclosure of information from police investigative reports.   Despite the existence of the Government Code provision, the Wescott court, in reliance upon T.N.G., ruled the parent was a stranger and third party as to the other minors referred to in the reports;  she was thus required to petition the juvenile court pursuant to section 827 for an order permitting inspection.  (Wescott, supra, 104 Cal.App.3d at pp. 106–109, 163 Cal.Rptr. 385.)

As is clear from the foregoing summary, Wescott had nothing to do with section 10850;  section 10850 is not a part of the Public Records Act.   The case is, therefore, not authority for subordinating section 10850 to section 827.   In fact, Wescott in a general fashion supports the construction we have given the two statutes.   The court acknowledged the principle that “[s]tatutes must be given a reasonable interpretation [citation];  and it must be presumed that the Legislature did not use ‘ “․ inconsistent provisions on the same subject” ’ ․” (Wescott, supra, 104 Cal.App.3d at p. 109, 163 Cal.Rptr. 385.)   As we explained earlier, section 827 is inconsistent with section 10850 if the former is given precedence over the latter with respect to CPS records.   This is not so when section 10850 is accorded priority.

 Section 10850 Exception

 We now must deal with the provisions of section 10850 relied upon in part by the juvenile court to justify its order of disclosure.  Section 10850, subdivision (a) permits examination of otherwise confidential records when the purpose of the disclosure is “directly connected with the administration of [a social services] program, or any investigation, prosecution, or criminal or civil proceeding conducted in connection with the administration of any such program.”  (§ 10850, subd. (a).)  The juvenile court characterized the newspaper's petition as “directly connected with an investigation conducted in connection with the administration of [the CPS] program.”   In our estimation, neither the statute nor its legislative history supports a conclusion that the newspaper may claim the benefit of this exception.

 The text of section 10850, subdivision (a) does not expressly state that the exception applies only to investigations conducted by government agencies or officials.6  Where language fails, however, logic prevails.   The press does not possess a right of special access to information which is otherwise unavailable to the public.  (Branzburg v. Hayes (1972) 408 U.S. 665, 684, 92 S.Ct. 2646, 2658, 33 L.Ed.2d 626.) 7  Disclosure to the press is disclosure to the public.   To construe the exception to provide such access on the basis of the press' desire to write a story would effectively nullify the entire point and purpose of the statute.   The courts would have to permit equivalent access to any person or organization expressing an intent to inquire into and in some manner report on the administration of CPS.   In order to avoid such an absurd result, we may disregard the literal language of the statute.  (Silver v. Brown (1966) 63 Cal.2d 841, 845, 48 Cal.Rptr. 609, 409 P.2d 689.)

If any further uncertainty exists about the scope of the exception, its legislative history puts the concern to rest.   The subject provision was added to the section in 1975.   Before this amendment, section 10850, subdivision (a) provided that the described information would not be:

“open to examination for any purpose not directly connected with the administration of such public social service;  provided, however, that any agency having custody of such records may make the disbursement records available to the district attorney upon his request.   The information thus obtained shall be made available to the district attorney for the official conduct of his office and shall not be used for any other purpose.”

In 1975, the Legislature passed emergency Assembly Bill No. 2326 (1975–1976 Reg.Sess.) in order to bring California law regarding social welfare programs into compliance with recently enacted federal law, Public Law 93–647.  (Legis.Counsel Digest, Req. No. 12250, 5/14/75;  Assembly Com. on Human Resources, Analysis of AB 2326 5/30/75.)   In relevant part, the federal act required the state to restrict disclosure of information, concerning applicants or recipients of aid, to public officials who required such information in connection with the performance of their official duties.  (Public Law 93–647, Part B, sec. 101(c)(2).)   Section 1 of Assembly Bill 2326 attempted to implement this mandate by making it clear the enforcement of child support, the determination of paternity, and the investigation and prosecution of welfare fraud were included within the “administration of public social services.”  (Assembly Com. on Human Resources, Analysis of AB 2326 5/30/75.)   This attempt to bring California law in line with the federal directive drew criticism from the Attorney General and other officials and agencies.  (See Cal. State Archive Mat'ls on Assem.Bill 2326 1975.)   These objectors pointed out that the proposed addition to the statute did not fully carry out congressional intent to permit access by state and federal officials.  (93rd Congress 1st Session, Sen.Rpt. No. 93–553, 11/21/73.)   For example, under the proposed amended statute, a request by the United States Department of Justice for information relevant to a criminal investigation would have to be refused.   Consequently, in order to avoid any possibility of non-conformity with federal law which might jeopardize the state's receipt of federal funds, the proposed amendment in Section 1 of AB 2326 was deleted and replaced with the language which now appears in section 10850.

The history of the statute thus demonstrates the legislature did not intend to make social welfare records available to non-governmental persons or entities such as the press.   The Legislature added the words “any investigation” to the section in order to insure adequate disclosure to governmental entities whose official duties required access to the protected information and records.   We so hold.

 Evidence Code Section 1040

 None of the other arguments advanced by the newspaper in support of the juvenile court's order are persuasive.   First, it maintains Evidence Code section 1040 authorized the juvenile court to exercise its discretion and order disclosure of the information after evaluating all the competing factors.   It relies on In re Lynna B. (1979) 92 Cal.App.3d 682, 155 Cal.Rptr. 256, for this proposition.

Evidence Code section 1040 provides:

“(a) As used in this section, ‘official information’ means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

“(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing such information, if the privilege is claimed by a person authorized by the public entity to do so and:

“(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state;  or

(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice;  but no privilege may be claimed under this paragraph if any person authorized to do so has consented that the information be disclosed in the proceeding.   In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered.”

In Lynna B., the foster parents of a minor successfully petitioned the superior court to declare the child free from the custody of her natural parents.   Among the issues raised by the child's natural mother on appeal was whether the trial court erred in allowing a county social service worker to testify about her observations of the child and the child's relationships with the parties.   In part, the mother claimed the facts recited by the social worker were confidential and privileged under section 10850.   The Court of Appeal upheld the ruling by the trial court.   It examined the relationship between section 10850 and Evidence Code section 1040.   In substance, Lynna B. concluded section 10850 provided only a conditional privilege to the witness because it permitted the release of social services records “for specified purposes.”  (Lynna B., supra, 92 Cal.App.3d at p. 705, 155 Cal.Rptr. 256.)   As a result, the trial court could, pursuant to Evidence Code section 1040, balance the need for confidentiality against the interests served by disclosure.

We cannot accept this analysis.   Essentially Lynna B. says that because the Legislature carved out an exception to section's 10850's grant of confidentiality, the trial court under section 1040 has discretion to disclose the otherwise protected information even though the exception is inapplicable under the facts of the particular case.   Such a rule amends section 10850, ignores the express provisions of subdivision (b)(1) of Evidence Code section 1040, and establishes the juvenile court rather than the Legislature as the ultimate arbiter of what is and what is not to be held in confidence under section 10850.

Section 1040 requires the trial court to uphold a claim of privilege if either of two circumstances are proved:  (1) state or federal law forbids disclosure, or (2) the trial court finds the factors favoring confidentiality outweigh the factors favoring disclosure.   In the present case, section 10850 expressly forbids disclosure unless the information is “directly connected with the administration of ․ [the public social services] program, or any investigation, prosecution, or criminal or civil proceeding conducted [by a governmental agency] in connection with the administration of any such program.”   Because the newspaper's request did not fall within the scope of this exception, subdivision (b)(1) of Evidence Code section 1040 compelled the juvenile court to enforce section 10850's grant of confidentiality.   Subdivision (b)(2) of Evidence Code section 1040 never came into play.

An example of the proper application of Evidence Code section 1040, subdivision (b), appears in Terzian v. Superior Court (1970) 10 Cal.App.3d 286, 88 Cal.Rptr. 806.   The issue there was whether a third party could discover a social welfare department's adoption placement records.  (Id. at p. 288, 88 Cal.Rptr. 806.)   While such information was not generally open to inspection under Civil Code former section 227, the statute also empowered the superior court to authorize inspection “ ‘in exceptional circumstances and for good cause approaching the necessitous.’ ”   (Id. at p. 293, 88 Cal.Rptr. 806.)   Since the relevant statute did not render the information absolutely privileged, the court determined Evidence Code section 1040 furnished the trial court with “rational guidelines for a determination of the conflicting claims” and upon which to exercise the discretion given it by Civil Code former section 227.  (Id. at 294, 88 Cal.Rptr. 806;  see also In re Maria V., (1985) 167 Cal.App.3d 1099, 1103–1104, 213 Cal.Rptr. 733;  and Jonon v. Superior Court, supra, 93 Cal.App.3d at p. 690, 155 Cal.Rptr. 822.)

By contrast, the Legislature has not paved the way in section 10850 for a judicial balancing of interests.   The court's role is limited under section 10850 to determining whether the exception applies.   If it does not, then, in the absence of waiver, the court cannot order disclosure pursuant to Evidence Code Section 1040.  (See Lorenza P., supra, 197 Cal.App.3d 607, 612, 242 Cal.Rptr. 877.)

 Caselaw

The newspaper claims virtually all of the appellate courts which have dealt with section 10850 in published decisions have approved disclosure.   They cite in this regard County of Nevada v. Kinicki (1980) 106 Cal.App.3d 357, 165 Cal.Rptr. 57;  Haskins v. San Diego County Dept. of Public Welfare, supra, 100 Cal.App.3d 961, 161 Cal.Rptr. 385;  Jonon v. Superior Court, supra, 93 Cal.App.3d 683, 155 Cal.Rptr. 822;  Rivera v. Los Angeles County Civil Service Com. (1979) 87 Cal.App.3d 1001, 151 Cal.Rptr. 480;  In re Lynna B., supra, 92 Cal.App.3d 682, 155 Cal.Rptr. 256;  and In re Jeannie Q. (1973) 32 Cal.App.3d 288, 107 Cal.Rptr. 646.   Without an analysis of the facts involved in each case, this argument is meaningless.   Indeed, none of these cases is determinative here.   In four out of the six, the appellate courts found disclosure was authorized by the exception in section 10850, subdivision (a);  in each of these a governmental official, performing official duties in connection with the administration of a covered program, received the information.  (County of Nevada, supra, 106 Cal.App.3d at p. 361, 165 Cal.Rptr. 57;  Haskins, supra, 100 Cal.App.3d at pp. 969–970, 161 Cal.Rptr. 385;  Rivera, supra, 87 Cal.App.3d at p. 1005, 151 Cal.Rptr. 480;  Jeannie Q., supra, 32 Cal.App.3d at p. 305, 107 Cal.Rptr. 646.)   In the other two cases cited by the newspaper, the appellate courts found the information involved was not confidential under section 10850.  (Jonon, supra, 93 Cal.App.3d at p. 692, 155 Cal.Rptr. 822;  Lynna B., supra, 92 Cal.App.3d at pp. 703–704, 155 Cal.Rptr. 822.)   In fact, in Jonon, supra, 93 Cal.App.3d at p. 693, 155 Cal.Rptr. 256, this court distinguished between the information sought in that case—a welfare worker's observations of another person's manner of speaking or other physical manifestations—which was not confidential under section 10850, and the actual records and files of the welfare agency, which the court, citing Sinacore v. Superior Court, supra, 81 Cal.App.3d 223, 146 Cal.Rptr. 302, viewed as falling within the first of the categories of protected information “enunciated in section 10850.”

Another case often referred to by the newspaper, Navajo Express v. Superior Court (1986) 186 Cal.App.3d 981, 231 Cal.Rptr. 165, is also inapplicable.   There, the defendant in a personal injury action sought the plaintiff's juvenile records, for possible use in countering his claim of brain damage resulting from the accident which led to the lawsuit.   The appellate court held the juvenile court had discretion under section 827 to disclose the records, particularly since the plaintiff put his mental health history in issue by filing the personal injury action.   Unlike the present case, there is nothing in Navajo which suggests the records sought by the defendant were documents covered by section 10850;  the opinion does not even mention this statute.

 Section 346

 The newspaper next points to section 346 8 , which gives the juvenile court discretion to admit the press to dependency hearings.  (San Bernardino County Dept. of Public Social Services v. Superior Court, supra, 232 Cal.App.3d at p. 195, 283 Cal.Rptr. 332.)   The appellate court in San Bernardino held that a juvenile court could not condition the news media's access to dependency proceedings by circumscribing what the press could publish and the circumstances under and the manner in which it could interview various participants in the proceedings.  (Id. at p. 206, 283 Cal.Rptr. 332.)   The court also acknowledged that the juvenile court on remand could decide uncontrolled press access would be harmful to the minors.  (Id. at p. 207, 283 Cal.Rptr. 332.)   The juvenile court in San Bernardino had refused the media's request for access to the court's files and records regarding the minors;  this ruling was never challenged.  (Id. at p. 193, 283 Cal.Rptr. 332.)

According to the newspaper, the same confidentiality considerations which pertain to CPS records apply with equal force to dependency hearings;  thus, if the juvenile court may allow the press to attend a dependency hearing it should also have the power to permit the press to view dependency records.   This argument ignores section 10850 as well as the fact that CPS records are not necessarily dependency records.   It may well be incongruous to sanction press access to dependency proceedings and prohibit press access to a certain category of dependency documents, but this is an argument for the Legislature, not the courts.

 Other Contentions

 Neither does the opinion of the attorney general, at 66 Op.Cal. Att'y Gen. 105 (1983), move us to a different conclusion.   Among the questions addressed were whether a district attorney investigating or prosecuting a child abuse action could gain access to welfare agency records pertaining to the victim and utilize a subpoena duces tecum or a search warrant to obtain them.   It was assumed the district attorney's need for the documents did not fall within section 10850's investigatory exception.  (Id. at p. 117.)

The attorney general responded in the affirmative to both inquiries.   Nevertheless, the opinion does not conclude the agency is obliged, upon presentation of a warrant or subpoena, to capitulate and release all records sought by the district attorney.9  The opinion only observes that service of a discovery request would allow the custodian of the welfare records to “assert confidentiality and privilege, if any.”  (Id. at p. 119.)   Left unanswered is what occurs when such a claim is made by the custodian.   In any event, the attorney general relied upon Lynna B., Jonon, and Jeannie Q. for his conclusion, whatever it was.   We have already explained why those cases do not justify the order before us.

 Finally, the newspaper contends section 10850 does not apply in this instance.   Initially, it asserts the children whose records were sought are dead, so there is no longer a need for confidentiality.   We find nothing in section 10850 nor any case authority which provides that social services records lose the statutory confidentiality when the subject of the records dies.   Moreover, the newspaper apparently ignores the fact that, in addition to the deceased children, the CPS records may refer to others who have an interest in continued confidentiality, such as those whose reports have prompted a CPS investigation.   While it is true the juvenile court in this case excised all names from the records, nothing in the statute sanctions disclosure if the court takes such a step.   The only exceptions to confidentiality are set out in section 10850.   In addition, redacting names from records might prove inadequate to avoid identification of the involved persons, particularly when the protected information in the records is combined with other data in the hands of the press.   In such event, one of the central purposes of the statute will be effectively nullified by the very use of the confidential documents.

 Conclusion

In summary, the juvenile court erred by ordering disclosure of the CPS records, none of which were shown to be outside the protection of section 10850.   There is no need to address any other issue raised by the parties.

We agree the manner in which CPS carries out its responsibilities is a matter of legitimate public concern.   We might even agree, as the newspaper and amicus argue, that sections 827 and 10850 “were not intended to protect the child welfare system from public scrutiny.”   We also have no doubt important public interests are served when attention is drawn to the plight of children in this country and the ever shrinking resources allocated to them.   We have been presented with a number of scholarly commentaries about mistreated children;  these works paint a very disturbing and pessimistic picture.   The problem and its consequences are all around us, and bear daily witness to society's failure at all levels to deal with child abuse and neglect.   Press access to the workings of the child protective agencies may well promote improvement and effective solutions.

The problem here is that we are presented with a statute which, when construed in accord with well-settled rules, says that only government agencies in particular circumstances may have access to the records made and kept by CPS.  The enactment of this law was fully within the exclusive constitutional powers of the legislature.   Our sole constitutional function, in the context of our review of the juvenile court's ruling for errors of law (Tupman v. Haberkern (1929) 208 Cal. 256, 262, 280 P. 970), is to insure the command of the statute is carried out.   Whether the provision advances or hinders progress in combating child abuse and neglect is not our province.  “The courts have nothing to do with the wisdom, policy, or expedience of the law, for the power to make the law carries with it the power to judge of its necessity, expediency, and justice․”  (Watson v. Division of Motor Vehicles (1931) 212 Cal. 279, 285–286, 298 P. 481.)

While the tendency has in fact been to “allow greater press access to traditionally closed proceedings of the juvenile court,” this trend has its roots in the enactment of enabling legislation, not the announcement of judicial decisions.   If the newspaper or others believe section 10850 constitutes an impediment to solving the problems of children, they must look to the Legislature for change;  it is to the Legislature that the statistics and social policy arguments which have been urged upon us must be, and can only be, directed.   Under the framework of our constitution, the legislature, not the judiciary, is the architect of social policy.

The newspaper is not prohibited from investigating DSS.   However, the Legislature has directed that such an investigation cannot include a review of the records covered by section 10850.   We must enforce the statute.   “[There is no] liberty, if the power of judging is not separated from the legislative power․   If it were joined to the legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator.”  (Montesquieu, The Spirit of the Laws, (Cambridge U. Press 1989) p. 157.)

DISPOSITION

The order granting disclosure is reversed.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   Section 828 is irrelevant to this appeal.

3.   We make no attempt whatsoever to explore the meaning of this phrase.

4.   According to Sinacore, section 10850 forbids disclosure of welfare records pertaining to a juvenile plaintiff in her action for the wrongful death of her mother, even though the documents might be relevant to the issue of damages.

5.   Whether the juvenile court has discretion under section 827 to refuse to disclose CPS documents to persons who are entitled to claim the benefit of the exception in section 10850 is another interesting question we make no attempt to answer.

6.   Nonetheless, a hint this is the case appears in the words of subdivision (b) of section 10850, which provides:“Any county welfare department and the State Department of Social Services shall provide any governmental entity which is authorized by law to conduct an audit or similar activity in connection with the administration of public social services, including any committee or legislative body so authorized, with access to any public social service applications and records described in subdivision (a) to the extent of such authorization.   Such committees, legislative bodies and other entities may only request or use such records for the purpose of investigating the administration of public social services, and 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.”  (§ 10850, subd. (b);  emphasis added.)

7.   The newspaper does not raise any First Amendment issue in this case.

8.   Section 346 provides:“Unless requested by a parent or guardian and consented to or requested by the minor concerning whom the petition has been filed, the public shall not be admitted to a juvenile court hearing.   The judge or referee may nevertheless admit such persons as he deems to have a direct and legitimate interest in the particular case or the work of the court.”

9.   We cannot resist the urge to note that the attorney general apparently decided social service records covered by section 10850 are not included within the scope of section 827.   The attorney general said that the district attorney may not use a search warrant or a subpoena duces tecum to obtain records in the custody of the juvenile court, because “this would be a direct interference with the exclusive jurisdiction of the juvenile court” under section 827. (at p. 114.)   The same result would necessarily have followed had the attorney general believed social service records fell within the scope of section 827.

DIBIASO, Associate Justice.

MARTIN, Acting P.J., and BUCKLEY, J., concur.