With some municipalities opting to begin blanket redactions, the City of Middleton attempts to preserve public access

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MTT News Desk's picture
By: 
Matt Geiger

New confusion about an old federal law is forcing local governments to choose between the right to privacy and the public’s right to information. Further muddying the waters is the fact that cities, villages and towns know they run the risk of getting sued either way.

Many government agencies in Wisconsin have begun blacking out names and addresses from what had previously been public police reports in response to a new interpretation of the Driver’s Privacy Protection Act (DPPA).

Government decision-makers essentially have two choices. They can continue releasing names to the public and risk lawsuits from individuals who claim their right to privacy has been violated, or they can redact the information and face lawsuits from newspapers and other government watchdog groups that believe the information must be turned over under state open records law.

The City of Middleton has chosen not to redact most personal information in its police and court documents. The city’s legal counsel and police department crafted the rationale behind the policy in an attempt to safeguard the city from litigation while preserving the public’s access to government records.

Middleton Chief of Police Brad Keil said the city is not performing blanket redactions, but it is blacking out information that is gleaned exclusively through Department of Motor Vehicles (DMV) records and not through “routine questioning and investigation” by officers.

“If an officer is unable to obtain the information from a subject by normal means and has to rely on a (DMV) record, that information is redacted in the report until such time as the officer can obtain the information directly from an individual,” Keil explained.

In 2012, the U.S. Court of Appeals for the Seventh Circuit ruled that police re-disclosure of certain personal information derived from motor vehicle records is prohibited unless turned over under an exception to the DPPA.

But Wisconsin Open Records Law presumes complete public access to public records consistent with the conduct of governmental business, unless denial of such access is in the public interest. Until now, police could disclose personal information derived from driving records, which were incorporated in department reports when responding to public records requests, because carrying out such requests is a required governmental function of the department.

The Middleton Police Department’s new policy attempts to find a middle road while all sides await resolution on the issue.

“Until this conflict is resolved, in addition to [DMV] returns, officers should seek other sources for personal information that is to be incorporated in department records,” states the department’s new policy. The guidelines go on to list an array of methodologies officers can use to obtain information during the course of their investigations. 

If driving records are the sole source of personal information that is to be incorporated in department records, the officer will notify the Records Bureau so the personal information can be redacted before disclosure to non-excepted third parties.  The Records Bureau will when place a “watch” on the record, which will notify employees who access or view the record that it is DPPA restricted.

While personal information derived solely from driving records will no longer be disclosed in most cases, there are 14 specific exceptions.

City attorney Matt Fleming said Middleton attempted to establish “a policy based on the most logical interpretation” of seemingly contradictory court rulings on the matter.

“It’s our own record that we obtained from independent sources,” he said of the names Middleton will continue turning over in response to open records requests.

One court battle on the subject has not yet been decided. When it is, the case could bring clarity to the issue. A lawsuit filed in May in a St. Croix County circuit court by the New Richmond News against the City of New Richmond alleges some municipalities, at the behest of their insurers, are overreacting to – and misinterpreting – the DPPA, a law originally intended to protect citizens from stalkers and other people who mean them harm.

In New Richmond, the community’s weekly newspaper is at odds with the police department over the proper interpretation of the law, which has been on the books for nearly two decades and wasn’t previously understood to prohibit government units from turning over public records. The newspaper contended DPPA doesn’t require the removal of personal information from law enforcement records, and that the city violated state statute when it decided to redact personal information from routine incident and accident reports.

An opinion by Attorney General J.B. Van Hollen, issued in April of 2008, appears to agree with the newspaper’s position.

Wisconsin statute 19.31 declares that every citizen is entitled to the greatest possible information regarding the affairs of government. The law assumes the presumption of complete public access to government records, stating that “[t]he denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”

The City of New Richmond disagreed, refusing to provide names and other personal information to the media and the public if the information is gleaned from DMV records.

New Richmond’s new interpretation of the law is based on a ruling made by the U.S. Court of Appeals last year. In Senne v. Village of Palatine, a Seventh Circuit federal appeals court ruled that police violated a man’s privacy by writing information obtained through DMV records on a parking ticket, then placing the ticket on his windshield on a public street.

Watchdog groups call the ruling a blow to transparent government because it allows law enforcement agencies and courts to function behind a veil.  Municipalities say it’s creating a massive load of administrative work, as well as incurring costs to local taxpayers since the state’s supreme court has ruled that redacting information must be paid for entirely by units of local government.

But many insurance companies say redacting personal information is the most prudent course of action, at least for now.

In 2008, Van Hollen issued the opinion making it clear the DPPA did not prohibit law enforcement agencies from releasing most information to the public. Van Hollen wrote that DPPA provisions “specifically support public access to personal information in law enforcement records related to vehicular accidents, driving violations, and driver status.”

However, a spokesperson for Van Hollen’s office said last week not to expect further comment on the matter from the attorney general anytime soon.

“As you may know, the New Richmond News has a suit in federal court against the City of New Richmond regarding this issue,” said Dana Brueck communications officer for the  Wisconsin Department of Justice. “Therefore, it would be inappropriate for us to offer an opinion on this issue at this time.”

She cited longstanding state guidelines as the reason for remaining silent: “An opinion should not be requested on an issue that is the subject of current or reasonably imminent litigation… .”

Brueck called Van Hollen’s 2008 opinion the department’s “most recent guidance on this issue.”

Further complicating the matter is Maracich et al. v. Spears, a recent United States Supreme Court ruling. In that case, a group of attorneys – commonly called “ambulance chasers” - used state Freedom of Information Act requests to obtain the names of thousands of people they hoped would join a class action lawsuit against several South Carolina car dealerships.

The Supreme Court reinstated the lawsuit against the attorneys, ruling that the DPPA’s exception for judicial proceedings did not authorize mass mailings to solicit clients. The case was sent back for further consideration, including of the attorneys’ alternate defense, which was based on  the DPPA’s “government function” clause.

But the court failed to fully address how the decision would impact other forms of public records requests, specifically access to police records.

For now, municipalities continue awaiting clarity on the matter.

“As far as I know that New Richmond case will be the first authoritative legal word on the matter,” said Fleming. “Most certainly either side would appeal, so I would expect it to end up in the seventh circuit. In other words, we could be talking on the order of years before there’s a final decision.”

 

 

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