Open government advocates say police departments across the state are increasingly brandishing a dangerous weapon. It's not a gun or a Taser, a baton or pepper spray.
It's a black permanent marker.
Wauwatosa police, along with several other law enforcement departments throughout Wisconsin, are overhauling how they release reports to the public, blackening personal information obtained from Department of Motor Vehicles registration.
On a typical Wauwatosa police report now, once released to the public, the names of people arrested, witnesses and others — along with their address, date of birth and other information — is covered by a deep stain of black ink.
The redaction reaction stems from a little known privacy case, Senne v. Village of Palatine (Ill.). A federal appeals court ruled that police there violated a man's privacy by writing information obtained through DMV records on a parking ticket.
Fearing major lawsuits, some municipal attorneys and insurers are advising law enforcement agencies to continue the unprecedented redacting, said Bill Lueders, president of the Wisconsin Freedom of Information Council.
"That means we're close to having secret arrests, and that's intolerable," he said. "Government should never be able to take a citizen's liberty away by not saying who it was that was arrested."
"While we are waiting for the Supreme Court to decide if it's going to look at (the Senne case), we had to develop our own set of policies," Wauwatosa City Attorney Alan Kesner said.
Kesner worked with a number of city attorneys from around the state.
"Everybody's just trying to be careful, that's the way to describe it," Kesner said. "Protect our taxpayers."
Wauwatosa Police Capt. Tim Sharpee oversees two records clerks and a warrant clerk, and the department is hiring a third record clerk. He said the redacting duties fall to the records clerks.
"Right now it doesn't look like we have anything in place that's gonna enable us to do that electronically, so a clerk has to print out that report (and) redact all that information," he said.
When the redaction policy began in the beginning of May, Sharpee said the department was commited to doing its best to turn police report requests around within a day. That hasn't happened, as the process of redacting a report is time-consuming.
Until this point, the Police Department had maintained a relatively open policy with regard to records, withholding only those cases under investigation.
Suit being brought
Bob Dreps, an attorney with Godfrey and Kahn, is pushing a case through the Wisconsin court system to help bring clarity to the issue, hoping to reinforce Wisconsin's open record laws.
Dreps represents Steven Dzubay, the publisher of the New Richmond News, who does not agree with the city of New Richmond's DPPA interpretation and redacting policies.
The newspaper asserts that the DPPA does not require the removal of personal information and that the department's redacting has caused injury to the plaintiff and the public, violating their rights under the open records law.
According to the complaint filed in St Croix County Court, New Richmond Police Chief Mark Samelstad said he agrees with the public's right to know certain information, and although he may not agree with the Senne case, he has an obligation to follow the court's ruling.
"I will not put the city of New Richmond at risk by releasing certain information to the public that has been restricted by state or federal courts," he stated in court filings.
Dreps is supporting his position by a 2008 opinion from Wisconsin's Attorney General that states: "We are not aware of any court, state or federal, including Senne, that has held the DPPA was intended to restrict the public's right of access to law enforcement records under any state's laws."
It goes on to state: "From at least the time of the Magna Carta and the formalization of the writ of habeas corpus, the concealment of the reason for arrest has been as odious as the concealment of the arrest itself. It is fundamental to a free society that the fact of arrest and the reason for arrest be available to the public."
Since that 2008 opinion, which cites dozens of court cases that are interpreted against redacting and spans nine pages, the Attorney General's Office has backed off its strong stance.
On Aug. 24, 2012, Milwaukee City Attorney Grant Langley requested legal opinion from the state Attorney General regarding the impact of the court case on the Wisconsin Public Records Law.
In a responding letter, Assistant Attorney General Kevin Potter refrained from issuing guidance until after the petition is either denied or decided by the U.S. Supreme Court.
"Although we understand that Senne has created a degree of uncertainty, and the law enforcement and others would benefit from some clear guidance, I hope you can understand our reasons for waiting until the case is fully resolved before addressing the issues in an Attorney General's Opinion," Potter stated in the letter.
Parking ticket dispute
The facts in the underlying Senne v. Palatine case are fairly mundane. Man gets a parking ticket. Man fights parking ticket.
In August, 2010, a police officer in Palatine — a village of roughly 69,000 people just outside Chicago — issued Jason Senne a parking citation and left the ticket on the windshield of his car.
Senne's lawsuit sought roughly $80 million by representing other individuals whose purported DPPA rights were violated within the four-year statute of limitations. The fine per violation is up to $2,500, under the DPPA.
The lawsuit alleges that by leaving the ticket on his car containing his personal information, the village violated the Drivers Privacy Protection Act.
Passed in 1994, the federal statute governing disclosure of personal information derived from DMV records was introduced by Rep. Jim Moran (D-Va.), largely to protect celebrities from stalkers and murderers who were using public driving license databases.
The Senne case was originally dismissed by a federal judge before eventually being reversed by a full circuit court of appeals in a 7-4 decision. The village has petitioned the case to the U.S. Supreme Court, however it's unclear whether the justices will review the case.
The jurisdiction of the U.S. Court of Appeals for the Seventh District extends to Illinois, Indiana and Wisconsin. But over-reaching redacting seems to be uniquely a Wisconsin problem, said Beth Bennett, executive director at the Wisconsin Newspaper Association.
Bennett said she called a former colleague in Illinois to hear how he was dealing with all the redacting.
"I said what are you guys doing about the Palatine case, and he said, 'What case?'" Bennett said. "For whatever reason, the authorities here in Wisconsin are seeing dangers in this case when other states aren't. It all seems to have started through local associations that represent municipal governments by sending out advisories, letting them aware the ramifications of this. That's how things start, and it's not uncommon."
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