Government confusion keeps Wisconsin public in the dark

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Apparently Jefferson County didn’t get the memo.

It seems not many others did, either.

A reported agreement between the Wisconsin Newspaper Association and the League of Wisconsin Municipalities expected to end local government policies of redacting information traditionally available to the public through the state’s open record laws includes counties, sheriffs departments and other government entities, too, Beth Bennett, WNA’s executive director, tells Wisconsin Reporter.

“All groups agreed to this,” Bennett said of a meeting the newspaper association held in early June with multiple organizations representing local governments. “We will need to have the same alert sent out to these memberships, making it clear that everyone has agreed to be working under the same understanding.”

But David Callender, government affairs associate at the Wisconsin Counties Association, which represents the state’s counties, said the details of the agreement were worked out by the newspaper association and the League of Municipalities, and he is not aware of any “final agreement on a form or on a resolution.”

“Once there is, our legal counsel and members and corporation counsel will take a look at it and we will advise our members,” he said.

Last week, WNA and the League announced an agreement that is supposed to end restrictions placed on the release of personal information involving matters of public safety. The stricter policies have been implemented in more than 30 municipalities, and in several Wisconsin counties.

The Jefferson County Sheriff’s Office has refused to release information that would identify the name of a suspect in a disorderly conduct incident that occurred July 9 at the Jefferson County Fair.

Jefferson County Chief Deputy Jeff Parker told Wisconsin Reporter the county’s policy, in place for about a year, prohibits the release of identifying information involving transportation-related records, including suspects in alleged crimes.

That policy, mimicked by multiple counties and municipalities statewide, stems from what government transparency experts assert is an overly broad reading of a 7th Circuit U.S. Court of Appeals decision. The appeals court ruling involving a Palatine, Ill., case found that a ticket on a windshield may have violated the driver’s personal information. Jason Senne sued the village for $80 million in the privacy lawsuit, alleging the police department violated his rights under the Driver’s Privacy Protection Act.

Tom Kamenick, associate counsel at the Wisconsin Institute for Law and Liberty, a Milwaukee-based public interest law firm, said the policies are the result of some “overcautious municipal lawyers.” The 7^th Circuit remanded the case back to the Illinois district court where it was first heard, and the district court, following testimony from police, ruled that officers have particular traffic duties that include obtaining and making public identifying information. The court dismissed the lawsuit, and the matter was effectively closed.

But the confusion lives on in governments across the Badger State that have tightened up their privacy laws at the peril of the public’s right to know.

An open records case earlier this year attempted to clarify the confusion. A St. Croix County judge ruled in favor of the New Richmond News in an open records lawsuit against the city of New Richmond.

The city, like Jefferson County, contended basic information, including names, addresses and other identifiers in traffic and criminal cases, had to be redacted from public records.

“The DPPA (Driver’s Privacy Protection Act) does not require the redaction of the information requested by (the newspaper) because such disclosure is permitted under 2721(b) and the Wisconsin Open Records Law requires the City to respond to records requests and provide such information in the performance of official duties by the City,” the judge wrote in his decision.

Jefferson County hasn’t changed its policy restricting the release of information, according to J. Blair Ward, the county’s corporation counsel.

“The issue is ambiguous right now and we think there needs to be more clarification on that,” Ward said. “Most of the counties are following Jefferson County in not releasing information obtained through drivers’ records.”

The incident in question in Jefferson County involves the destruction of political signs at a Republican Party tent during the Jefferson County Fair. How does such an incident involve drivers’ records?

Because the Jefferson County Sheriff’s Department identified the suspect using her driver’s license, and doing so apparently is covered by the DPPA, and the Jefferson County Policy.

Unbeknownst to many members of the public, there is a way around the restrictions.

Roxane Stillman, the rural Madison woman who witnessed the destruction of the political signs and pursued the suspect until law enforcement officials arrived, checked a box on her open records request form, which finally allowed the release of the suspect’s name.

As Wisconsin Reporter reported Monday, the suspect is identified as April Kay Smith, 38, a kindergarten teacher in the Germantown School District. The incident report, obtained by Wisconsin Reporter, said Smith confessed to damaging the signs because, as a public school teacher, she is “just so angry” with Gov. Scott Walker.

Ward said the personal information in the citation is generally restricted, but there are several exceptions that allow for redacted reports to be opened.

Bennett said the records check-off is an intermediate solution to a long-term settlement.

“We’ve been working on this for over a year,” she said, pointing to the case in New Richmond. “We have been told that there would be no conversation ending redaction until we have a definitive court case,” with the matter settled at a higher court.

In the meantime, agencies that have implemented the more stringent policies will be redacting everything.

But government entities, like Jefferson County, have agreed to release identifying information if records seekers check off the appropriate exemptions on the forms.

“We are asking the court to expedite this,” Bennett said. “Something is better than nothing right now. I think we will have this check-off for another couple months.”