Wisconsin – Police work that has traditionally been conducted in public view is increasingly being shielded, as insurance companies and municipal attorneys throughout Wisconsin push departments to withhold names from reports due to liability concerns.
A long-ignored federal privacy law is driving the redactions, interpreted by some municipal leaders to overrule a state public records law that says the full reports should be released.
(Federal privacy law allows police to conduct secret arrests in AMERIKA! Is this the future of policing?)
With a growing number of departments redacting crash reports — and, in some cases, all incident reports — drivers injured in crashes may have no right to the identity of the other motorist, and communities can be kept in the dark about who police are arresting.
“It’s apparently gone to the point in Wisconsin that there is now such a thing as a secret arrest, which I think is just astonishing, and I think should concern every citizen deeply,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “If just checking information against driver’s records renders it secret, then you can keep just about anything secret by taking that additional step.”
“Without access to people’s names on police reports, there is no accountability for how law enforcement is performing their jobs,” Robert Dreps an attorney said.
At least 30 municipalities now redact personal information from reports — citing the Palatine ruling and the 1994 federal Driver Privacy Protection Act it interpreted, according to media reports and agency websites. Officials in most of those municipalities say names are among the personal information barred from release.
Among the departments making changes, many are redacting names from only crash reports, but some are withholding names from all reports. Police typically run all people they contact through the DMV database to confirm identifying information, and some attorneys interpret the Palatine ruling to mean data that touches the DMV database — even if it doesn’t originate there — is barred from release.
“The danger and the damage and the cost of violating the federal law is substantially more than violating the public records law,” Thompson said. “If you release a record that you’re not supposed to release, you’ve now violated somebody’s civil rights, and you’re now in federal court where you have no cap for damages.”
Dreps, an attorney representing the New Richmond News in a lawsuit alleging the redactions are improper, said the decision to redact when in doubt flies in the face of Wisconsin’s public records law, which instructs officials to err on the side of openness. He said Congress did not intend the driver privacy act to shield police reports from the public.
“It’s hard to imagine how congressional intent like that could go unnoticed for almost 20 years — if that were the intent — and then to be discovered in only one of the 50 states,” he said.
An informal opinion Wisconsin Attorney General J.B. Van Hollen issued in 2008 said names and other personal information should not be redacted from police reports based on the driver privacy act because releasing public records to requesters is a statutory duty and part of law enforcement’s official duties.
“Reading (the privacy act) so restrictively that law enforcement agencies would be precluded from carrying out public records functions … would subvert the important governmental objective of facilitating public oversight of police investigations; impair public confidence in law enforcement activities; and do exactly what Congress intended to avoid — impede execution by law enforcement officers of their legitimate public duties and responsibilities,” Van Hollen’s opinion said.
Despite recent requests from numerous municipal attorneys, Van Hollen has declined to issue follow-up guidance in the wake of the Palatine case. A November letter to a group of city attorneys said the Attorney General’s Office was waiting to see if the U.S. Supreme Court takes the case.
If the Supreme Court agrees to hear the Palatine case, it would likely take more than a year and wouldn’t necessarily address the public records issue, since the case focuses on how information is included on parking tickets.
The change could also come through Congress. U.S. Rep. Tom Petri, R-Fond du Lac, said he would consider taking action if the high court upholds the Palatine ruling.
“At some point it becomes important for the public to know about certain things, specifically accident reports which are used by insurance companies and others,” Petri said in a statement. “If the ruling in the 7th Circuit Court is upheld, then we may have to look at the law again to ensure that its original intent is clear.”
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