State v. Runge

ADKINS, Judge. In this case we must decide the extent to which Maryland Code (1957, 1985 Repl.Vol., 1989 Cum. Supp.), Article 88A, § 6, subsection (b), requires disclosure of a county department of social services’ files to a criminal defendant charged with child abuse. 1 We shall hold that this subsection, standing alone, does not entitle a defendant to any disclosure of those files. I. The grand jury for Cecil County indicted respondent, William Frederick Runge (Runge), on three counts of sexual child abuse.

A jury sitting in the circuit court for that county convicted Runge on all three counts, and he was sentenced to three concurrent 15-year terms of incarceration. Before his trial began, Runge sought to require the Cecil County Department of Social Services (DSS) to produce “all records in any way relating to” himself, his wife, and his three children, these children being the alleged victims of the abuse. DSS moved to quash the subpoena. Both sides relied on Article 88A, § 6.

The circuit court judge decided that in camera review under the principles enunciated in Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987), to determine which documents should be ⁶¹⁵ disclosed, would suffice. He obtained and reviewed the entire DSS file. He read into the record all portions of the file that he thought were material to Runge’s defense. Also, the judge ordered the State and DSS to give the defense, either pretrial or when the witnesses testified, all prior statements made by the Runge children.

Finally, the judge ordered that certain other documents, including copies of all letters written by Runge himself, be released to the defense immediately. The judge expressed the view that by virtue of these disclosures, the defense “got just about the whole [DSS] record, if not all the record.” As he made clear at the time of this ruling, Runge was satisfied neither with these disclosures nor with the process of in camera review of the file. After his convictions and sentencing, he appealed to the Court of Special Appeals. He persuaded that court that he was entitled to the information in the records and reports in the [DSS] file by virtue of subsection 6(b)(4) [of Article 88A]____ Pursuant to that subsection, the extent of appellant’s entitlement is clear: disclosure of the information contained in reports and records concerning child abuse.

This being so, the only basis for court intervention is to determine [Runge’s] entitlement and to ensure that the sources of the information are safeguarded; court intervention to determine the extent of the disclosure of the information is not only unwarranted, but not permitted. Runge v. State, 78 Md.App. 23, 34-35 , 552 A.2d 560, 566-567 (1989). The Court of Special Appeals reversed the trial court. 2 II. Before us, Runge continues to insist that Article 88A, § 6 entitles him to full discovery of everything pertaining to his ⁶¹⁶ case that is contained in the DSS file.

He is adamant that he (or his lawyer) is entitled personally to inspect that file, without intervention of the trial court, except to the extent that protection of informants or others may require minor judicial redaction. He bases this entitlement solely on the Maryland statute; we need not concern ourselves with disclosure principles established in cases, such as Ritchie, supra; United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985); Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963); State v. Leonard, 290 Md. 295 , 429 A.2d 538 (1981), affirming Leonard v. State, 46 Md.App. 631 , 421 A.2d 85 (1980); Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979); or with the Maryland Rules dealing with discovery. Nor need we address the State’s argument that Runge has either not preserved a record adequate for review of the issue he presents, or that he somehow waived that issue at trial. We hold that the Court of Special Appeals misconstrued Article 88A, § 6.

The intermediate appellate court applied the appropriate rule: it approached its task “by considering the plain language of the statute, in light, however, of its purpose. Kaczorowski v. City of Baltimore, 309 Md. 505, 513 , 525 A.2d 628 (1987).” Runge, 78 Md.App. at 33 , 552 A.2d at 566 . But it gave inadequate attention to the statute’s legislative history and purpose, and thus misread the statutory text. Subsection (a) of Article 88A, § 6 defines certain disclosures as a criminal offense.

Subject to exceptions not here pertinent, it is unlawful for “any person or persons to divulge or make known ... any information concerning any applicant for or recipient of social services, child welfare services, cash assistance, food stamps, or medical assistance, directly or indirectly derived from the records, papers, files, investigations or communications of the State, county or city, or subdivisions or agencies thereof.” Violation of this statute is a misdemeanor punishable by fine, imprisonment, or both. Section 6(e). Subsection (b) focuses more narrowly on certain records: ⁶¹⁷ Except as otherwise provided in Title 5, Subtitle 7 of the Family Law Article,[ 3 ] all records and reports concerning child abuse or neglect are confidential, and their unauthorized disclosure is a criminal offense subject to the penalty set out in subsection (e) of this section. Information contained in reports or records concerning child abuse or neglect may be disclosed only: (1) Under a court order; * # sjt * * (4) To a person who is the alleged child abuser or the person who is suspected of child neglect if that person is responsible for the child’s welfare and provisions are made for the protection of the reporter or any other person whose life or safety is likely to be endangered by disclosing the information; * * * * sjc * (6) To a parent or other person who has permanent or temporary care and custody of a child, if provisions are made for the protection of the identity of the reporter or any other person whose life or safety is likely to be endangered by disclosing the information.[ 4 ] Runge is the parent of the children he was charged with abusing and, therefore, places particular reliance on paragraph (6).

Paragraph (4) would seem equally applicable if Runge’s arguments are sound, because he is the person charged with child abuse. 5 His position is that in the last ⁶¹⁸ sentence of subsection (b), the word “may” should be read as “shall,” thus making the sentence read: “Information contained in reports or records concerning child abuse shall be disclosed only ...” [emphasis supplied]. See Resetar v. State Bd. of Education, 284 Md. 537, 547-550 , 399 A.2d 225, 230-232 , cert. denied, 444 U.S. 838 , 100 S.Ct. 74 , 62 L.Ed.2d 49 (1979) (context of statute sometimes requires “may” to be interpreted as mandatory). This has to be the proper construction, he asserts, because to have the language declare that “records may be disclosed only: (1) under a court order ...” makes no sense. If there is a court order for the disclosure of records, the record must be disclosed.

The Court of Special Appeals agreed. Runge, 78 Md.App. at 34 , 552 A.2d at 566 . Once that “may” becomes “shall,” the statute commands that records “shall” be disclosed to either the child abuser identified in paragraph (4) or to the parent identified in paragraph (6). The problem with Runge’s analysis is that he fails to read the last sentence of subsection (b) in the context of the rest of § 6, or in the context of the section’s legislative history.

We turn first to legislative history, for this helps to provide us with the context within which the statute must be read. NCR Corp. v. Comptroller, 313 Md. 118, 145-146 , 544 A.2d 764, 777 (1988); see also Wilde v. Swanson, 314 Md. 80, 92 , 548 A.2d 837, 843 (1988). What is now § 6 of Article 88A was first enacted by Chapter 238, Acts of 1941. It was then § 3A and consisted, in substance, of present subsections (a), (c), and (e) of § 6.

This seminal statute was designed to assure the confidentiality of certain “welfare” records by making their disclosure a crime unless the disclosure happened to be made under certain circumstances or to certain designated entities. It contained no hint of authority for compulsory disclosure of the protected information. Over the years, § 3A became § 6. Chapter 702, Acts of 1968.

Present subsection (b), or at least its principal begin ⁶¹⁹ nings, did not appear until 1983. Chapter 492, Acts of 1983. What became Chapter 492 originated as HB 1395. The Senate Judicial Proceedings Committee Report and other documents in the bill file indicate that the major purpose of HB 1395 was to bring Maryland law into accord with federal law.

Montgomery County reported that enactment of HB 1395 would make Maryland eligible for federal funding of over $125,000 which was unavailable to the State because of its existing legislation. Letter from Eleanor E. Wormwood to the Chairman of the Judiciary Committee (17 March 1983). Delegate Hixson, the bill’s sponsor, explained that the legislation was designed to enhance protection for abused children and also to bring Maryland law into conformity with federal law, so that Maryland could receive a $125,000 federal grant for expansion of child protection programs. The Court of Special Appeals acknowledged this purpose in Freed v. Worcester County, 69 Md.App. 447, 453-454 , 518 A.2d 159, 162 , cert. denied, 309 Md. 47 , 522 A.2d 392 (1986), appeal dismissed, 484 U.S. 804 , 108 S.Ct. 49 , 98 L.Ed.2d 14 (1987).

Neither the statute nor its bill file give any indication that it was intended to grant disclosure rights to certain criminal defendants. The relevant federal statute is the Federal Child Abuse Prevention and Treatment Act which requires that in order to qualify for a grant, a State must, among other things, “provide for methods to preserve the confidentiality of all records in order to protect the rights of the child, his parents or guardians.” 42 U.S.C. § 5106a(b)(4). 6 That statute is implemented by regulations. These declare that a “State must provide by statute that all records concerning reports and reports of child abuse and neglect are confidential and that their unauthorized disclosure is a criminal offense.” 45 C.F.R. § 1340.14 (i)(l). But they also provide that a State, if it “chooses to, [ ] may authorize by statute disclosure to any or all of the following persons and agen ⁶²⁰ cies, under limitations and procedures the State determines.” 45 C.F.R. § 1340.14 (i)(2).

Among the listed persons and agencies are a court (paragraph 2(ii)), and the “person about whom a report has been made” (paragraph 2 (viii)). These items are obviously reflected in § 6(b)(1) and (4). It is equally obvious that the goal of § 6 was, in a larger societal sense, to provide for confidentiality, and in a narrower sense, to conform to the mandates of federal law. Neither objective even remotely suggests that § 6(b) should be read as an entitlement to mandatory discovery in a criminal case.

As the Court of Special Appeals has perceived, “[t]he statute was never intended to be a vehicle to permit the willy-nilly disclosure of the very records the Legislature sought to keep confidential.” Freed, 69 Md. App. at 454 , 518 A.2d at 162 . When we look at § 6(b) from the perspective of its legislative history and when we view it as an integral part of a criminal statute designed to prevent the disclosure of records, its language becomes clear. When the statute tells us that “[information contained in reports or records concerning child abuse or neglect may be disclosed only” under defined circumstances or to designated entities, it is telling us that custodians have authority to release the information within the statutory framework 7 and that if it is so released, the custodians will not be subject to prosecution under § 6(b). Thus, if a custodian discloses pursuant to court order, the custodian is immune.

And if the custodian exercises discretion to disclose to the accused abuser responsible for the child, the custodian