During Sunshine Week, we celebrate Wisconsin's proud tradition of open government, including public and media access to government records. It's fitting that the League comes into Sunshine Week with an effort to resolve a conflict between state open records laws and federal privacy laws as it relates to the Drivers Privacy Protection Act. The League of Wisconsin Municipalities has asked to participate in a lawsuit between a New Richmond newspaper and the City of New Richmond. The League believes that the lawsuit creates an opportunity for the Wisconsin Supreme Court to clarify matters.
Wisconsin has a long and proud tradition of open government. That includes a presumption that government records, including traffic accident and violation reports, are available for public viewing. The news media are staunch protectors of this tradition, to their credit. But safeguarding personal privacy is just as important. In 1994 Congress responded to a tragic stalking and murder case by prohibiting state motor vehicle departments, local police departments and others from disclosing personal information obtained from license and vehicle records. There were numerous exceptions to this law, but there was no exception for media disclosure. In spite of this, most law enforcement offices assumed the public's “right to know” about accidents and criminal activities still ruled and life went on as before. In 2007 a federal lawsuit in Illinois forced a second look at that assumption. In the case of Senne vs. Palatine a village in Illinois was cited for violating the privacy rights of a citizen because his name and address were visible on the face of a $20 parking ticket stuck under his car's windshield wiper.
Following Senne the League cautioned its members to evaluate the state and federal laws (which we argued at the time were confusing and contradictory), and to make a decision whether or not to redact, or remove, personal information from police records before handing them over to the media. Most Wisconsin communities chose to redact the personal information. This has met with significant media concern. It sparked a lawsuit in New Richmond that is the subject of the League's request to the Court.
Our advice wasn't very popular. The media were frustrated that they no longer had free access to important information. And local police departments were unhappy with the added workload of redaction. The League's opinion was questioned on both legal and PR grounds.
The controversy sparked a high-level meeting between media organizations and the League last year, at which two things were agreed to: first, we would devise a form that could be filled out by a journalist, advising the local government the reporter needed the private information in order to fulfill what is arguably a public function: the people's right to know. With the form, communities would have a tool to decide whether to disclose the personal information. It was an imperfect solution, but it would help work around the issue until the Court could clarify. Second, and most important, both media interests and the League agreed that the two conflicting laws need to be reconciled, and the only place that can be done is via the Court system. The League of Wisconsin Municipal Mutual Insurance agreed to take on New Richmond's cost of appealing the lower court decision, and on March 6, both sides asked the Wisconsin Supreme Court to assume jurisdiction. The League has petitioned to be allowed to submit a brief in the case.
What is the League's position? Which side are we on; privacy or disclosure? The League has one goal: to advise our members on the state of the law so they can serve their citizens. And when the state of law is, as it in this case, confusing, our job is to pursue clarity. Do we want personal privacy to be protected? Of course. Do we want the media to be able to do its job of informing the public? Without question. In this case, it matters less which side “wins” or “loses,” than that the Court comes out with a clear statement of how these two laws interact. Because it's a whole lot easier to see the sunshine when the sky is clear.
Jerry Deschane is executive director of the League of Wisconsin Municipalities.