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The balancing test: Advocate asks Door County to restore access to public information

Mar. 30, 2013
 
Door County officials now black out addresses and birth dates of drivers and vehicle owners on accident reports, citing a federal appeals court ruling.
Door County officials now black out addresses and birth dates of drivers and vehicle owners on accident reports, citing a federal appeals court ruling. / Warren Bluhm/Door County Advocate
A sign in the foyer of the Sturgeon Bay Police Department spells out the new policy regarding redaction of accident and incident reports. / Warren Bluhm/Door County Advocate

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It’s not unusual for new laws and court decisions to have unintended consequences. That seems to be the case for two recent decisions by Door County officials to restrict the flow of public records to local news media and other interested parties.

In one case, an interpretation of a federal law, originally passed after a deranged fan used driver’s license information to track down and murder a Hollywood actress, has led local police agencies to redact the ages and addresses of people involved in accident and incident reports.

In the other, the language of a law designed to prevent future incidents like a district attorney’s sexting to crime victims led the county to restrict access to the emergency call center’s dispatch log.

The result is that information previously available to reporters, insurance attorneys and others on a routine basis is now being withheld, which law enforcement and municipal attorneys acknowledge was not the original intention of the laws.

The Door County Advocate on Thursday submitted an open records request for the 911 logs and asked the county to reconsider its decision regarding redaction of basic information.

The parking ticket

The U.S. Congress passed the Drivers Privacy Protection Act of 1994 after the murder of 21-year-old actress Rebecca Schaeffer in 1989. An obsessed fan, angered that the former little sister in the TV show “My Sister Sam” had appeared in a bedroom scene in a movie, hired a detective agency that tracked down her home address using California Department of Motor Vehicles records. The stalker went to her home and shot her to death when she answered the door.

The 1994 law made it a federal crime to release personal information obtained from a state DMV, with about a dozen exceptions. For 18 years the law was not considered to affect police agencies who continued to share accident reports and incident reports with the news media and other interested members of the public.

But then in November, the League of Wisconsin Municipalities’ monthly newsletter, The Municipality, published an analysis by League legal counsel Claire Silverman titled “Enforcement agencies should evaluate how DMV information is used.”

Silverman cited an appeals court ruling that began with a parking ticket issued by Palatine, Ill., police. Jason Senne’s attorneys argued that by printing Senne’s personal information from the DMV on the ticket — including his full name, address, driver’s license number, birth date, sex, height and weight — and then slipping it under his windshield wiper in full public view, the village of Palatine had violated the Drivers Privacy Protection Act and put Senne in danger of identity theft or worse.

The lower court dismissed the argument, but the Seventh Circuit Court of Appeals, which also covers Wisconsin cases, reversed that decision last August and determined that the Palatine police officer had violated the Act. The village appealed to the U.S. Supreme Court in January.

Silverman’s article concluded that “… the Seventh Circuit’s statements and obvious concern regarding the ‘very real safety and security concerns’ raised by the disclosure of personal information like someone’s home address, suggests that some or all of the personal information needs to be redacted.”

Since then the Door County Sheriff’s Department, Sturgeon Bay Police Department, and other agencies around the state have blacked out home addresses and birth dates from all reports released to the public. Reporters can only discern that “John Doe” from ZIP code 54235 (Sturgeon Bay, Sevastopol, Nasewaupee, Jacksonport) was injured in an auto accident or that “Jane Doe” from ZIP code 54211 (Ellison Bay, Gills Rock, Liberty Grove) reported her garden shed burglarized.

The Door County Advocate and other agencies must take extra steps to get further details, such as comparing the names to court records if a traffic citation was issued. But when their record is clean, the resulting news story may be vague, such as a recent story in which an injured driver was identified as “living in the Algoma ZIP code,” which covers a wide area of southern Door County and northern Kewaunee County. The department also blacked out the address of a recent fire.

Public protection

Door County Corporation Counsel Grant Thomas said the state open records law requires a balancing test between the need for open government and the need for public safety.

“On balance, we have determined that the public interest in non-disclosure, given the significant dangers and threats to personal safety of our citizens … outweighs the public interest in disclosure,” Thomas said.

The New Richmond News filed suit against the city of New Richmond on March 18, alleging the city’s police department is unreasonably restricting access to timely information on accident and incident reports based on what the News called a misinterpretation of the Seventh Circuit decision.

Robert Dreps, an attorney representing the News who often advises the Advocate in his role as consultant for the Wisconsin Newspaper Association, said the open records statute says “denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.”

“This is not an exceptional case,” Dreps said.

Thomas said unless and until the Supreme Court rules, county officials are bound by the appeals court decision.

Sexting and public records

Former Calumet County district attorney Ken Kratz was punished by state legal authorities but never criminally charged for sending racy text messages to a sexual assault victim he was supposed to be helping.

After officials decided Kratz acted inappropriately but committed no crime, the Legislature passed a law (Act 283) prohibiting public officials from using crime victims’ personal information in a manner that is unrelated to their official responsibilities.

Door County Sheriff Terry Vogel previously provided reporters with access to the daily 911 log. The Advocate used the information as a foundation for asking about fires, crashes, unusual crimes or other incidents around the county.

When Act 283 took effect last April, Vogel stopped the routine release of the log on Thomas’ advice. After the two officials met with local media representatives in December, Vogel agreed to resume the practice if reporters would sign a release stating they would not use the information in a manner inconsistent with Act 283.

Dreps noted the state open records law does not require requesters to identify themselves or state the reason they want public records. The law also already requires requesters to use the information in accordance with all laws, he said.

On Dreps’ advice the Advocate refused to have its reporters sign the release and on Thursday filed a formal written request for access to the logs.

Unlike the DPPA decision where numerous counties have begun to redact routine reports, Door County is apparently alone in using Act 283 as a basis to withhold public records.

“I know of no other county that has used the law in this way,” Dreps said.

Who pays for redaction

State Rep. Garey Bies, R-Sister Bay, said Thursday it’s not clear how his bill to allow agencies to charge for the costs of redaction is affected by the disagreement over whether redaction is required.

Bies introduced the bill after a unanimous Wisconsin Supreme Court ruled that Milwaukee officials did not have the right, under the open records law, to charge the Milwaukee Journal Sentinel $642 for redacting documents in an investigation.

Since a Feb. 27 public hearing on the bill (Assembly Bill 26), Bies said he has been working on ways to amend the measure for the benefit of people who make simple requests for public records, including provisions that the first hour of redaction cannot be charged and that the costs of more complicated redactions be split 50-50.

“We’re trying to come up with a reasonable compromise without sticking taxpayers with the bill,” Bies said.

Warren Bluhm is the associate editor of the Door County Advocate. Contact him at (920) 743-3321, Ext. 122, or wbluhm@doorcountyadvocate.com
wbluhm@doorcountyadvocate.com.

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