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Police Records No Longer Open in Many Communities

Fear over multimillion dollar lawsuits has prompted many departments to strictly follow requirements in the federal Driver's Privacy Protection Act that may or may not apply. And in doing so, they're violating the state's open records law

A legal battle in Illinois over a $20 parking ticket could potentially cost a Chicago suburb tens of millions of dollars — and fear that the case could have implications here is prompting many Milwaukee-area police departments to drastically clamp down on how much information they’re releasing to the public.

In a matter of months, police departments from Caledonia to Port Washington have stopped providing names of people their officers are arresting, ticketing or contacting, and, in some cases, won’t even release details on where a crime occurred because of the pending litigation in Illinois.

We could see a closing off of Wisconsin’s open records laws — laws that are considered among the strongest in the country.

“There’s the real possibility that we are getting to the point in Wisconsin, because of this overzealous interpretation, where people may be subject to secret arrests,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “That’s absolutely intolerable. That should shock and appall every resident of the state.”

Changes at area police departments have come swiftly.

  • The Brookfield Police Department’s new policy is to redact all personal information taken from DMV records before release.
  • Port Washington police redact most personal information and have stopped civilian ride-alongs with officers.
  • Police in Greenfield, Wauwatosa, Fox Point, Shorewood, Muskego, Whitefish Bay and Greendale redact individuals’ names, dates of birth and addresses from reports.
  • Mount Pleasant police redact addresses and dates of birth, but not names, and Sturtevant police redact only personal information they know comes from state Department of Transportation records.
  • Menomonee Falls police provide binders of released reports for the public to view, one containing unredacted criminal reports and the other with redacted accident reports.
  • Police in Caledonia and Waukesha have not yet begun redacting reports, but said policy changes could be coming.
  • The Oak Creek and Bayside police departments are not redacting information at this time, and have not said a change is coming.

In those departments and others, the sweeping changes could make it tougher for someone involved in a traffic accident, for example, to go the the local police department and get a complete copy of the accident report.

In Wauwatosa, for instance, getting an accident report will take longer and you’ll get less information — probably minus the very info you want — unless you’re willing to jump through more hoops.

“There will be a delay,” said Wauwatosa Police Capt. Tim Sharpee, “because of the time we’ll spend redacting. And because we’re redacting, if you want that other person’s information, you won’t get it.”

To get that information, people need to either bring in a signed release allowing the department to release the other person’s information or let the insurance company handle it. Sharpee said departments that aren’t redacting accident reports now likely will be soon.

The policy changes also make it more difficult for local media organizations, which routinely inspect police reports, to provide the public with complete details on criminal activity taking place in their neighborhoods.

Privacy lawsuit sets off chain reaction

It all started with a parking ticket that police in Palatine, IL, left on Jason Senne’s windshield back in 2010. Senne found the ticket in the morning, and saw it included a lot of personal information — including his name, date of birth, address and driver’s license number.

Senne filed a federal class action suit claiming that Palatine police violated federal privacy protection laws by putting that information on the ticket. A federal judge ruled against Senne and a three-court appeals panel agreed.  But the case went before the full 7th Circuit Court of Appeals, and in August 2012, he unexpectedly won.

Palatine officials have asked the U.S. Supreme Court to take case, but the high court only accepts 2 percent of the cases it receives each year, so there’s a good chance the appeals court ruling could stand.

And that’s what has Wisconsin officials worried.

“They’re calling (Senne’s ticket) the $78 million parking ticket because (Senne’s) attorney believes the city should pay $2,500 for every ticket they’ve issued,” Greenfield Police Chief Brad Wentlandt said.

That’s $2,500 for each of the 32,000 parking tickets Palatine issued in four years.

Most area municipal officials are well aware that the state’s open records law requires departments to release their reports — including the names and other information about the people they arrest and speak to during an investigation — to the public.

But the state’s open records law has no financial penalty, and departments found to have violated the law must simply release the record and pay attorney’s fees. Faced with the possibility of a lawsuit that could cost millions, many cash-strapped municipalities are opting to stop releasing what is clearly public information.

“We’re exposed to a far greater penalty if we release (the information) over not release,” Wentlandt said. “Until the Supreme Court rules on this issue, we’re going to err on the side of caution, to protect our stakeholders, which is our taxpayers and the municipality, from a large dollar amount.”

Wauwatosa’s Sharpee said until it becomes clearer what must and must not be disclosed, his department will walk on the safer side of the line – that is, away from violating federal law.

“We’re going to try to be true to both the federal (law) and state open records laws as much as we can,” Sharpee said. “But until we get some more guidance on this, we’re going to be playing it sort of safe in meeting the federal standard.”

Federal law was ignored for years

While Milwaukee-area departments have been making changes swiftly, the law at the center of the Palatine case — the Driver’s Privacy Protection Act — has been around for 20 years.

For well over a decade, Wisconsin law enforcement agencies largely ignored the law, which puts in place steep penalties for anyone who improperly releases personal information obtained from Department of Motor Vehicle records. But the law provides several exceptions for law enforcement agencies and states the it doesn’t trump state laws, like Wisconsin’s open records law.

Fear over those penalties — which some have said could be steep enough to bankrupt a municipality — intensified after an attorney from the Wisconsin League of Municipalities published a memo in November that sounded the alarm over the Palatine lawsuit. Attorney Claire Silverman encouraged departments to redact all information that could be traced back to the DMV. Because that information is inextricably linked with police records, departments following the recommendation are redacting nearly all personal information.

The centralized databases of drivers’ information let officers look up drivers, car registrants and open warrants, but under this interpretation of the federal privacy act, also means that as soon as an officer plugs a person’s information into that system, they can no longer release it as part of a report.

“There’s so much drawn from drivers’ information,” said Quin M. Sorenson, an attorney for the International Municipal Lawyers Association, which has filed a brief with the Supreme Court siding with Palatine. “The requirement for municipalities to withhold all that information is in direct conflict with so many local requirements, specifically open records laws.”

Open records laws determine what governments must disclose to the public, and Sorenson said the Driver’s Privacy Protection Act requires them to self-censor.

The potential for hugely damaging lawsuits filed by anyone who believes their personal information has been improperly disclosed in the course of regular government business, Sorenson said, is “the definition of a chilling effect.”

“That’s going to color every decision a municipality makes, at every level, about what they can disclose, which up to now has been their duty to disclose,” he said. “The one thing that we can be sure of is that it will lead to less disclosure, not more.”

Newspaper sues over police records

While the federal case in Palatine is still pending, a local newspaper in northwestern Wisconsin has gone to state court after a department there stopped releasing some information to the press.

The New Richmond News sued the New Richmond Police Department after that department started redacting police reports, citing the Palatine case as its reason for doing so.

The newspaper’s attorney, Bob Dreps, argues the department violated the state’s open records law, and said the federal law was not intended to require departments remove that information from records or alter their responsibilities to release records under state law.

Lueders, the president of Wisconsin’s Freedom of Information Council, believes everyone wants clarification, including municipalities.

“I think they feel suddenly a whole array of things are supposed to be secret, and they’ll get in trouble and sued and have to pay a lot of money and fines if they continue to provide the information they provided for decades,” he said.

Bailers April 27, 2013 at 12:22 PM
Law enforcement would have such a much easier job of it wasn't for that pesky public and their laws.
AWD April 27, 2013 at 01:23 PM
CCAP shines a bright light on the slimy underbelly within our communities.
oak creek resident April 27, 2013 at 10:36 PM
@Keith Worst...you're mean!
Keith Worst April 27, 2013 at 10:55 PM
Mean to Schmitz? Yeah, he's a really nice guy......
lozo May 02, 2013 at 08:45 PM
Interesting that today's NOW did not include the Oak Creek Police Blotter.

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