By Steve Dzubay
New Richmond News
NEW RICHMOND, Wis. – In an action handed down March 20 a St. Croix County judge granted judgment to the New Richmond News over the City of New Richmond in an open records case involving the Drivers Privacy Protection Act.
At issue is public access to the most basic information about matters handled by the local police department — names, addresses, ages and circumstances surrounding traffic accidents, burglaries, acts of vandalism and the like.
“The DPPA 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,” Cameron wrote in his decision.
“Just as our attorney general (J.B. VanHollen) concluded in 2008, Judge Cameron has ruled that the DPPA does not require the redaction of personal information from accident reports, incident reports or other law enforcement records before disclosure under the open records law,” said Bob Dreps, an attorney with the Madison office of Godfrey & Kahn, who represented the New Richmond News.
The City of New Richmond hasn’t yet indicated whether it will appeal Cameron’s decision.
On Monday morning, when a reporter requested unredacted access to recent reports, New Richmond Police Chief Mark Samelstad said the department would not change its current practice of redacting information at least until after he was able to discuss the ruling with an attorney.
If the City of New Richmond and its insurance provider decide to appeal the case to Wisconsin’s Sixth District Court of Appeals, it is possible Judge Cameron might permit the city to remain in noncompliance with his ruling until an appeal is heard.
The Wisconsin Newspaper Association is encouraging journalists who cover municipalities that are currently redacting records based on the DPPA to share last week’s ruling with law enforcement agencies and their counsel, and urge them to reconsider their analysis and comply with the open records law.
The ruling comes just over a year after the News first filed a lawsuit against the City of New Richmond, alleging the city’s police department was unreasonably restricting access to timely information on accident and incident reports, on the basis of a misinterpretation of a recent U.S. Court of Appeals Seventh Circuit ruling.
The lawsuit named the city as a defendant because it is responsible for the actions of the police department. It asked that the department reverse its policies and pay attorney fees and damages in the case.
Within a few days of NRPD’s refusal to release accident reports and documents pertaining to other police action, police departments in Hudson and Kenosha also began limiting the release of information. At the same time, open records policies at nearby Somerset, River Falls and several other police departments remained unchanged.
WNA staff informally tracked the spread of the records closures statewide as various other departments jumped on board, limiting release of information out of fear they might be sued for violation of federal privacy law. Among those around northwestern Wisconsin that shut down records are Barron, Burnett, Washburn and Sawyer County sheriff’s departments; Rice Lake, La Crosse and Medford police departments as well as the Milwaukee Police Department and a number of smaller departments in southeastern Wisconsin.
At last count, the list numbered at least 70 jurisdictions, according to Mary Callen, WNA’s communications director.
The newspaper and the department disagree on the interpretation and application of the DPPA to requests for access to law enforcement records under the Open Records Law. The News contended that DPPA doesn’t require removal of personal information before public disclosure under the Open Records Law. The newspaper cited a 2008 Wisconsin Attorney General’s ruling in its filing.
The police department claimed that DPPA requires redaction or blacking out of identifying information — names, address, dates of birth and driver’s license numbers — before records are released if that information came from motor vehicle records maintained by the Department of Transportation.
In early January 2013, the News requested multiple accident and incident reports from New Richmond Police Department. Police Chief Mark Samelstad released the reports about 10 days later with names, addresses and dates of birth blacked out.
Previous to mid-December, such information was routinely made available to the newspaper immediately or once a police investigation had been completed.
Media in several other parts of Wisconsin began experiencing similar black-outs following the release of a memo by the Wisconsin League of Municipalities warning that cities could be at risk for lawsuits and paying damages if they didn’t limit public access to certain data.
Under Wisconsin’s Open Record Law, it is the declared public policy that every citizen is entitled to the greatest possible information regarding the affairs of government, wrote Dreps, in his action. The statute affirms the presumption of complete public access to governmental records, consistent with government business, and provides that the “denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied” Dreps wrote, quoting the statute, then adding — “This is not an exceptional case.”
How it all started
In the federal case — Senne v. Village of Palatine — a man who received a $20 parking ticket in the Illinois city, filed a class action lawsuit against the village in federal court, claiming violation of privacy in that his name, address, date of birth, height, weight and driver’s license number was placed in plain view on his windshield. A court panel ruled against him in the filing but upon appeal to the entire court, a panel whose jurisdiction extends to Illinois, Wisconsin and Indiana, his claim was upheld and the court awarded damages of $80 million.
Some attorneys suggested that municipalities, community colleges and other governmental entities that issue parking tickets should immediately review their practices to ensure that they comply with the court’s decision.
The court first found that placing the parking ticket on Senne’s windshield constituted a “disclosure” under the act because any passerby could have viewed the ticket, even though there were no facts to suggest that anyone had actually done so during the five hours before it was removed from the windshield.
Coincidently, the St. Croix County Circuit Court ruling arrived in the midst of Sunshine Week, March 16-22, a national effort by news organizations and open-government advocates to spotlight laws that keep government’s workings transparent. Sunshine Week is held in mid-March every year, coinciding with the March 16 birthday of James Madison, who is known as “the father of the Constitution.”
The commemoration started with Sunshine Sunday in 2002 in Florida. Under the then-American Society of Newspaper Editors, it expanded to Sunshine Week and went national in 2005.
The New Richmond News is owned by Forum Communications Co., a multimedia information company based in Fargo, that owns dozens of newspapers, websites, television and radio stations and commercial printing plants in North Dakota, South Dakota, Minnesota and Wisconsin.