Wisconsin Legislature: Destination-129

76 Op. Att'y Gen. 134, 134-135 (1987)

You indicate that your questions were prompted by the Mayville School District's request for the release of sheriff's department records of complaints implicating the district's students in the use, possession or distribution of intoxicants and controlled substances. According to your letter, the school district has asked the sheriff's department to routinely notify the district of complaints involving students so that the district can implement a school board policy on alcohol and drug abuse.

76 Op. Att'y Gen. 134, 135 (1987)

Pursuant to that policy, a copy of which was enclosed with your opinion request, a student receives an automatic three-day suspension the first time the school district discovers the student has used, possessed or been under the influence of intoxicants, mood-altering drugs or look-alike drugs or has possessed drug-related paraphernalia. The prohibited behavior need not occur on school grounds or while school is in session; rather, the prohibition is in effect twenty-four hours a day, 365 days a year. In addition to the suspension, the student is referred to the Student Assistance Program, which can require in-school counseling or referral to alcohol and drug abuse groups. The failure to comply or cooperate with the assistance provided triggers expulsion proceedings against the student. Second and subsequent violations draw more severe penalties.

76 Op. Att'y Gen. 134, 135 (1987)

In my opinion, a school cannot use confidential information obtained from the police to require students, under threat of expulsion, to participate in group or individual counseling, nor can the school use such information to suspend or expel students. The only exception to this prohibition would be if the student has entered into an informal disposition under section 48.245, whereby he agrees to undergo counseling or to voluntarily absent himself from school for a stated period. It is also my opinion that the school can use confidential information to refer a student to county social welfare agencies or nongovernmental self-help groups, but only if the student consents to such referral.

76 Op. Att'y Gen. 134, 135 (1987)

The starting point for my analysis is section 48.396(1):

76 Op. Att'y Gen. 134, 135-136 (1987)

Records. (1) Peace officers' records of children shall be kept separate from records of persons 18 or older and shall not be open to inspection or their contents disclosed except under s. 48.293, by order of the court assigned to exercise jurisdiction under this chapter or by order of the circuit court under sub. (5). This subsection shall not apply to the representatives of newspapers or other reporters of news who wish to obtain information for the purpose of reporting news without revealing the identity of the child involved or to the confidential exchange of information between the police and officials of the school attended by the child or other law enforcement or social welfare agencies or to children 16 or older who are transferred to the criminal courts.

76 Op. Att'y Gen. 134, 136 (1987)

The Wisconsin Supreme Court has noted the purpose underlying this confidentiality requirement for juvenile police records:

76 Op. Att'y Gen. 134, 136 (1987)

Confidentiality is essential to the goal of rehabilitation, which is in turn the major purpose of the separate juvenile justice system. In theory, the role of the juvenile court is not to determine guilt or to assign fault, but to diagnose the cause of the child's problems and help resolve those problems. The juvenile court operates on a "family" rather than a "due process" model. Confidentiality is promised to encourage the juvenile, parents, social workers and others to furnish information which they might not otherwise disclose in an admittedly adversary or open proceeding. Confidentiality also reduces the stigma to the youth resulting from the misdeed, an arrest record and a juvenile court adjudication.

76 Op. Att'y Gen. 134, 136 (1987)

State ex rel. Herget v. Circuit Court for Waukesha County

, 84 Wis. 2d 435, 451, 267 N.W.2d 309 (1978) (footnotes omitted).

Accord

State ex rel. State Public Defender v. Percy

, 97 Wis. 2d 627, 634-35, 294 N.W.2d 528 (Ct. App. 1980).

76 Op. Att'y Gen. 134, 136 (1987)

It is apparent from

Herget

that the confidentiality of juvenile police records is not intended solely to protect the juvenile from the stigma attached to having a police record or being contacted by the police. Rather, the confidentiality provision is also designed to encourage the juvenile and others having contact with him to furnish the police with information which they might otherwise not disclose. For example, parents might be willing to supply police with information about their child or their child's friends only if they knew such information would not be used by school authorities as the basis for suspension or expulsion proceedings. Likewise, a juvenile being investigated by the police for suspected alcohol or drug involvement might be more willing to cooperate if he or she knew such cooperation would not result in automatic suspension from school.

76 Op. Att'y Gen. 134, 136-137 (1987)

The

Herget

court believed that one reason the Legislature enacted a confidentiality requirement for juvenile police records was to encourage juveniles and other persons to furnish information which they might not otherwise be willing to disclose to juvenile authorities. The possibility that using confidential police information to suspend or expel students or to coerce them into counseling could deter cooperation with juvenile authorities is one reason I find such usage contrary to the confidentiality requirement of section 48.396(1). A second reason is that I seriously doubt school officials can use confidential information obtained from the police to suspend or expel a student without disclosing that information to persons not entitled to receive it. (

See

69 Op. Att'y Gen. 180, 182 (1980), where my predecessor expressed similar doubt.)

76 Op. Att'y Gen. 134, 137 (1987)

Under

Goss v. Lopez

, 419 U.S. 565 (1975), certain due process safeguards, including notice and a hearing, must be observed where sanctions such as suspension or expulsion from school are imposed. In Wisconsin such due process safeguards are codified in section 120.13(1)(b) and (c). These statutes contemplate that persons in addition to "officials of the school attended by the child" will be privy to information giving rise to a student's suspension or expulsion. For example, section 120.13(1)(b) entitles a suspended student -- or his parent or guardian -- to a conference with "the school district administrator or his or her designee who shall be someone other than a principal, administrator or teacher in the suspended pupil's school." Because the person conducting the conference cannot be from the suspended pupil's school, that individual is therefore outside the class of persons with whom the police can exchange confidential information under section 48.396(1).

76 Op. Att'y Gen. 134, 137 (1987)

With respect to expulsion proceedings, there is an even greater risk that persons not specified in section 48.396(1) will have access -- either directly or indirectly -- to confidential information contained in police files on juveniles. While your letter states that only the people described in section 118.125(2)(d),¯

the child and the child's parent or guardian can attend such proceedings, I do not believe this is always the case.

76 Op. Att'y Gen. 134, 137-138 (1987)

Under section 120.13(1)(c), an expulsion hearing must be closed only if the pupil and, if the pupil is a minor, his parent or guardian, request it. If a minor pupil and his parent or guardian request a closed hearing, then the general public will be barred from attending. Even in a closed hearing, however, due process may require that persons other than the child, his parent or guardian and school district employes specified in section 118.125(2)(d) be present as witnesses for the board or for the pupil facing expulsion.