Police report redaction policies spreading statewide

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Neil Johnson
Saturday, August 31, 2013

JANESVILLE—A news reporter can't get the age or full identity of victims in a fatal industrial accident.

A neighborhood watch leader can't learn the address of someone arrested for dealing drugs on his block.

A victim advocate at a nonprofit agency can't get a home address or phone number for the family of a drunken-driving victim.

Those are a few potential effects of a new set of policies sweeping through police agencies in southern Wisconsin and the rest of the state.

A growing number of police departments in Rock and Walworth counties say a ruling last year by a Chicago federal appeals court requires them to redact from official police reports personal identifying information that came from state Department of Motor Vehicles records, such as phone numbers, addresses and ages of people, as well as other details before the reports are made available to the public.

Some police departments in Wisconsin—64 of them, as of Aug. 21—have enacted policies that to one degree or another require police records clerks to make such redactions and withhold information, according to a Wisconsin Newspaper Association database.

The policies are spreading statewide despite legal action by one Wisconsin newspaper and despite requirements in Wisconsin open records laws that require release of information in police reports unless there are specific exemptions under state law—such as protections for juveniles and sex crime victims.

While some local police departments say they refuse to enact new redaction policies, others say they're under pressure from their municipal insurance companies. The insurers contend that releasing personal identifying information in police reports could make departments liable for large lawsuits over privacy violation.

Janesville Deputy Police Chief Dan Davis said the city's general liability insurance provider, Cities and Villages Municipal Insurance, recently advised the police department to withhold details of people's identity from reports released to the public.

That, Davis said, is the company's recommendation on how to adhere to an August 2012 ruling in the 7th Circuit U.S. Court of Appeals.

“I'm paraphrasing, but they (the insurance company) are saying, 'Here's the DPPA (Driver's Privacy Protection Act), and to limit liability, we suggest you strongly adhere to it,” Davis said.

In the federal ruling last year, the court found village of Palatine, Ill. police had violated the privacy rights of Jason Senne by leaving a parking ticket with Senne's personal identifying information on his vehicle overnight.

The federal ruling rests on the court's read of the Driver's Privacy Protection Act, a set of federal rules enacted in 1994, originally to prevent celebrities in California from being stalked. The law prohibits public disclosure of state Department of Motor Vehicle records except under a list of 14 narrow exceptions.

Senne's lawsuit originally sued for $80 million, arguing that it represented other people whose rights had been violated through unlawful disclosure under the Driver's Privacy Protection Act.

Interim Janesville City Manager Jay Winzenz said Cities and Villages Municipal Insurance has issued no ultimatums to the city, but the company's guidelines and interpretation for compliance with the Driver Privacy Protection Act are “pretty strict.”

“They're saying if any information came from (state) Department of Transportation or DMV records, they can't be released,” Winzenz said.

Milton Police Chief Dan Layber said his department's read on advice from Cities and Villages Municipal Insurance, which also handles Milton's liability coverage, is a bit different.

Layber said Cities and Villages Municipal Insurance has indicated police are allowed to release full reports to the news media as long as reporters don't reprint personal identifying details or use them to contact people.

That advice is based on one of the exemptions of the Driver's Privacy Protection Act, which allows media access to records, Layber said, and it jibes with reporting policies Milton has had for years, Layber said.

The Whitewater, Edgerton and Elkhorn police departments have moved forward with policies to redact people's ages, addresses and birthdates from reports based on the Driver's Privacy Protection Act and its insurers' advice on the Senne ruling, police officials said.

Elkhorn Chief Joel Christensen said people in car crashes can fill out requests at the police department for full reports to giver their own insurers. Christensen added that during an emergency such as an Amber alert, the department can suspend the Driver's Privacy Protection Act and disclose personal information under an exemption that allows police to carry out “legitimate law enforcement functions.”

Some local media outlets argue the public should have routine access to full police reports under Wisconsin Open Records Law.

The New Richmond News newspaper is suing the Wisconsin city of New Richmond over its interpretation of the Driver's Privacy Protection Act based on redactions police made on reports of serious drunken driving accidents, according to court papers.

The newspaper argues that federal driver's privacy rules don't require redaction of reports, and that the public's right to know under the state open records law is being violated. It's pushing the case through the state's court system to try to get a ruling that clarifies the law, the paper's attorney, Bob Dreps, a state open records expert, has said.

Meanwhile the Wisconsin Newspaper Association, is calling for the Wisconsin Attorney General's Office to issue an opinion on whether police should be redacting personal information from reports.

The AG's Office, however, is awaiting the results of the New Richmond case, which is now pending in federal court, before it issues an opinion, officials said.

The lack of specific legal guidance puts departments in a tough spot to follow state open records laws and the implied rules from insurers' interpretations of the Driver's Privacy Protection Act, police officials said. It takes extra work and extra time for staff, and it's still not clear if the departments are following rules insurance companies believe are required by the federal ruling.

The Delavan Police Department only redacts information that police pull directly from state DMV databases, Chief Tim O'Neill said. If people hand officers their driver's license or state ID or otherwise give police their personal information during a reportable incident, the department releases the details as public record.

Yet, now, O'Neill said, that policy is under review by the city attorney to see if it meets guidelines under the insurance company's interpretation of the Driver's Privacy Protection Act.

"It could change," he said.

The Beloit Police Department makes all details on arrest reports available, but it now redacts personal information from open cases and from closed cases that aren't going to court. Jillian Peterson, director of support services for the department, says it's not clear if the department is too little or too much or the right amount of redaction.

“It puts us in a sticky situation because we obviously want to follow all the laws and regulations, (but the) open records and DPPA law don't really coincide,” she said.

Wisconsin Newspaper Association Director Beth Bennett said her group and a group of city attorneys are meeting soon for roundtable discussions about the redaction policies. She said all parties just want legal clarity.

“We (the WNA) just want the green light from somebody legally to dispel their fears regarding some initial advisory that came out of an insurance company,” she said.

Bennett said she's baffled over why the issue has only sprung up in Wisconsin.

In lllinois, where the federal Senne ruling was issued, and Indiana, which is in the same federal court district as Wisconsin, police departments haven't made any new rules on report redacting, Bennett said.

Officials from police departments such as the Rock County Sheriff's Office, the Clinton Police Department and town of Beloit say they won't immediately go along with insurance company advice to redact reports because of the Senne ruling.

Dale Burke, interim Clinton police director, said he believes police departments who are going to great lengths to redact reports because of the ruling are “way, way overreacting.”

“They're more likely to get sued for redacting too much information than for letting something out they supposedly shouldn't,” Burke said.

Rock County Sheriff's Office is not changing the way it writes reports because the county's corporate council has advised it to wait for a conclusion to the New Richmond case before making changes.

“We want to continue to be as open and transparent with the public as we can,” Rock County Sheriff's Capt. Jude Maurer said.

Gazette reporters Gina Duwe and Samantha Jacquest contributed to this report.

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