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Subject: FYI - Some police departments keep names of those arrested secret
Some police departments keep names of those arrested secret
| Written by Shereen Skola
WAUSAU — Some police agencies in the state are withholding the names and other information about people they arrest, looking to a little-known Illinois court case with potentially far-reachingimplications for Wisconsin residents.
The change in policy stems from a privacy case in which a federal court ruled that police violated a man’s privacy when they wrote information obtained through the state’s Department of Motor Vehicles on a parking ticket left on the man’s vehicle. The case, Senne v. Village of Palatine (Ill.), is the root of what Bill Lueders, president of the Wisconsin Freedom of Information Council, calls an “emerging crisis” in Wisconsin.
“This overzealous interpretation of a federal court ruling creates a huge problem with the ideal of an open society,” Lueders said. “We now find ourselves with the potential for secret arrests. The police could now deprive you of your liberty, and not even say who it is they’ve arrested. The court couldn’t possibly have intended this.”
So far, the Marathon County Sheriff’s Department and Wausau Police Department are among 16 municipalities statewide that are redacting personal information on police reports; the Rothschild Police Department and Everest Metro Police Department have not yet followed suit.
The new rules, which went into effect earlier thismonth in Wausau and Marathon County, prohibit the release of any personal information obtained from a driver’s license, but not from a state-issued identification card. “Personal information” includes names, addresses, phone numbers, photographs, and medical or disability information.
“So, if two people are arrested and one has a driver’s license and one has a state ID card, police can give you the arrest information for one person but not the other,” Lueders said. “That’s crazy.”
So far, Wisconsin appears to be the only state using the Illinois ruling as a reason to keep arrest information secret. Under the new rules, if you’re involved in a crash, you can’t even find out who hit you. And the lawsuits are just beginning.
Erring on the side of secrecy
Marathon County Corporation Counsel Scott Corbett said municipalities are acting on the recommendation of insurance companies thathave advised them to “err on the side of caution” and comply with the Driver’s Privacy Protection Act, or DPPA. The 1994 legislation, passed largely to prevent stalkers and would-be murderers from accessing public driving records, prohibits the disclosure of personal information without the express written permission of the driver.
Corbett said the new redaction policy is derived from the idea that the DPPA supersedes Wisconsin’s open records law, which requires all governmental agencies in the state to conduct their business with transparency.
“I am very much aware of the policy and tradition in this state with regard to open records, but insurers are indicating that this is the nature of the law,” Corbett said. “Of course, it doesn’t help that the case this is based on came out of Illinois, where they don’t have the same privacy laws we do in Wisconsin.”
Where does that leave the public? In the dark, Lueders said.
For example, the city of Wausau on April 13 arrested a man accused of playing bumper-cars down North Third Street in a pickup truck, bouncing off at least three vehicles parked on the side of the road. The driver, who was suspected of being drunk, was detained by witnesses until police arrived and took him away.
His name still has not been released to the public, prompting speculation that police are covering up the name of a prominent local official caught driving drunk — though police say that is not the case.
Lueders, who is sharply critical of the new rules,called such policies a “dangerous position to take” in light of the state’s open records law.
“Insurers advising departments to err on the side of secrecy? In a judgment call, you err on the side of openness,” Corbett said.
A not-so-simple parking ticket
The court case that spawned the policy changes wasfiled in August 2010 after a police officer in Palatine, a suburb of Chicago, wrote a simple parking ticket and left it on Jason Senne’s windshield. Senne sued the village for about $80 million. The lawsuit alleged that by leaving the ticket, which included Senne’s name and other personal information, the village violated Senne’s rights under the DPPA.
Originally, Senne’s case was dismissed in federal court; that decision was reversed by the U.S. Court of Appeals for the 7th District in a 7-4 decision. Jurisdiction for the appeals court extends to Illinois, Indiana and Wisconsin. The village has petitioned the case to theU.S. Supreme Court, but it’s unclear whether the justices will review the case.
Despite Wisconsin’s strong history of transparency in government, it appears to be the only state using the case to restrict information, Lueders said.
“It appears Wisconsin is alone in this,” Lueders said. “Even in Illinois, where the case originated, they aren’t redacting.”
The legal debate
A 2008 opinion by Wisconsin Attorney General J.B Van Hollen is the basis for at least one lawsuit that challenges the redacting;that case is making its way through the Wisconsin court system. Van Hollen’s nine-page opinion cites dozens of cases to support its opinion that the DPPA was not intended to restrict public access to information under the state’s open records law.
“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,” Van Hollen wrote.
Robert Dreps, an attorney with Madison-based law firm Godfrey and Kahn, represents a newspaper at the center of the legal battle. In a lawsuit filed March 13 in St. Croix County, the New Richmond News allegesthat the city of New Richmond violated open records laws when the city’s police department began redacting personal information earlier this year.
“Under the Open Records Law ... it is the declared policy of this state that every citizen is entitled to the greatest possible information regarding the affairs of government,” the complaint reads.
Van Hollen has declined to weigh in further on theissue, Corbett said, until additional court cases are decided.
Next steps
One thing is clear — the fight isn’t over yet. Corbett said he and other attendees at a May 2 statewide corporation counsel meeting will discuss the matter with insurance representatives.
“This issue is not settled,” Corbett said. “For now, we’re balancing the best we can.”
A call Friday to Wausau City Attorney Anne Jacobson seeking comment was not returned.
The changes affect more than media requests for information. Drivers involved in crashes, for example, will no longer be able to obtain information on other drivers involved when they request police reports after a crash, Wausau Police Capt. Bryan Hilts said.
“It’s a major administrative problem for us, too,” Hilts said. “Every time someone comes in and asks for a police report or an accident report, someone has to spend the time blacking out all that information. The time adds up pretty quickly.”
Lueders said members of his organization are hopeful the courts will rule soon and “put an end to this nonsense.”
“We’re hoping the New Richmond case will bring sanity back to Wisconsin,” Lueders said. “We hope the courts act promptly.”
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