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Open-record case a mixed blessing for transparency

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Thomas Kamenick is deputy counsel and litigation manager for the Wisconsin Institute for Law & Liberty.

Two weeks ago, the Wisconsin Court of Appeals released a decision concerning whether the federal Driver’s Privacy Protection Act requires law-enforcement agencies to black out identifying information from documents when responding to record requests.

The court’s ruling in New Richmond News v. City of New Richmond frees up the release of information on some reports, but not others.

The DPPA generally prevents the disclosure of personal information from state DMV databases. It was enacted in 1994 to deal with stalkers who might obtain home addresses from license plates and states that might profit from selling personal contact information to advertisers.

For a long time, nobody really thought the DPPA had anything to do with record requests submitted to law-enforcement agencies. That changed in 2012, when the 7th Circuit Court of Appeals ruled that police had “disclosed” personal information when they had left under a windshield wiper a parking ticket containing the name, address and even height of the recipient, along with similar details. After that case, a significant number of sheriffs’ and police departments around the state reacted (actually overreacted, in my view) by blacking out basic information from accident reports, incident reports, and citations. Among the details removed were the names of perpetrators.

The New Richmond case began when the New Richmond News requested incident reports and accident reports from the New Richmond Police Department. The department blacked out personal information, citing the DPPA, and the newspaper sued. The lower court ruled that two exceptions to the DPPA applied, meaning the removals were in fact improper. The parties bypassed the court of appeals and took the case directly to the Wisconsin Supreme Court, which split 3-3, sending the case back to the court of appeals.

The court of appeals ruled that one of the exceptions applied, but not the other. Under this ruling, accident reports — expressly required to be released by Wis. Stat. § 346.70(4)(a) – do not need to be blacked out in part, but incident reports do.

The court’s opinion was thoughtful and reasoned, but nonetheless flawed in two ways. First, the court completely failed to consider whether releasing an incident report to a record requester fell under the exception “(f)or any other use specifically authorized under the law of the State that holds the record, if such use is related to the operation of a motor vehicle or public safety.” The court concluded that accident reports fit that exception, but didn’t even discuss whether incident reports did.

In my opinion, they do. My organization, the Wisconsin Institute for Law & Liberty, filed a lawsuit against the Jefferson County Sheriff’s Department when it blacked out from incident reports and a citation the name of a woman who vandalized a GOP booth at the Jefferson County Fair. That lawsuit ended happily when the Sheriff agreed to turn over the complete records, but it demonstrates that incident reports can very frequently (if not always) be related to public safety.

By definition, an incident report and citation are ways of documenting law-breaking behavior, which the public has a right to learn about. The police act in order to protect public safety. The release of such records is “specifically authorized” by the Open Records Law, and those records are related to public safety, so they should be exempted.

The second flaw is that, in dealing with the second exception, the court twisted the English language by concluding that fulfilling record requests is not a government “function.” The other exception is “(f)or use by any government agency, including any court or law enforcement agency, in carrying out its functions.” State law requires government authorities to fulfill record requests, so of course doing so is a “function” of government.

The court dismissed this obvious interpretation, however, because it didn’t like the result that would follow. It concluded that if DMVs had to directly turn over their databases in response to open-records requests, that would defeat the purpose of the DPPA. The court is probably right here.

But that’s a matter for the legislature to deal with, not the courts. The court shouldn’t ignore the plain meaning of the word “function,” for doing so leads to bad results.

On the bright side, the court also ruled that there should be no blacking out of information that is found on incident reports (and presumably other records) and that was merely verified in the DMV database, rather than obtained directly from it. So if the police ask witnesses and perpetrators their names, that shouldn’t be redacted even if they later check the name against the DMV’s database.

So here’s where we stand. Subject to commonsense balancing of privacy interests (generally speaking, home addresses and other highly sensitive information will always be redacted), the following rules apply:

  • Accident reports will not be partially blacked out;
  • Parts of incident reports and other documents will be blacked out if the information was obtained directly from the DMV; and
  • Incident reports and other documents will not be blacked out in part if the information was merely verified by the DMV.

Of course, since both parties lost part of their arguments, either could seek a hearing before the state Supreme Court, which now will have seven justices.

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