Northwoods police differ on disclosure

Posted in Public records law by foiguy on September 21, 2013


I write today about how the DPPA debacle is affecting the Northwoods. In short: Two out of six law enforcement agencies in Oneida and Vilas counties — Rhinelander and Eagle River police departments — have adopted more restrictive disclosure policies since the 7th U.S. Circuit Court of Appeals en banc decision in Village of Palatine v. Senne.

Chiefs of both police departments didn’t mince words about what they think of the new policies:

Rhinelander Police Chief Michael Steffes said his department changed its public records policy on the recommendation of the city’s insurance company. He said he is just complying with that advice, though he doesn’t agree with it.

“Personally the frustration is that I want to be as transparent as possible with the public,” Steffes said. “Once we have an accident, I want to be able to share that with everyone. If the DPPA is going to prohibit people to see what we’re doing in the city, that bothers me that it seems to limit our full ability to be transparent to the public.”

Rhinelander’s police department has created a partial workaround: Officers are giving drivers involved in accidents a consent form that allows the department to release personal information to other drivers in the accident.

No such workaround exists in Eagle River, where the police department there has also restricted release of personal information in police reports. Police Chief Mark VanderBloomen said he too is upset with the change.

“This entire mess with the DPPA and the Wisconsin open records law has been extremely frustrating,” VanderBloomen said. “In a nutshell, yes, we have changed the way we release open records regarding information garnered through DOT records on advice from legal counsel.”

Four agencies, however, including both sheriffs, have not altered their policies. That kind of mishmash is common around Wisconsin, according to Beth Bennett, executive director of the Wisconsin Newspaper Association.

“It really is very schizophrenic,” Bennett said. “It’s just different from one city to the next.”

In an interview, Bennett told me she has met with the Wisconsin Broadcasters Association, associations for units of local government and the insurance industry to discuss the redaction problem. There was a consensus, she said, that something needed to be done.

“There is a general agreement that even the organization that represents local governments would like this clarified,” Bennett said.

The full article, “Northwoods police differ on disclosure,” appeared in the Northwoods River News on Sept. 21, 2013, and in The Lakeland Times on Sept. 27, 2013.


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Milwaukee Journal Sentinel v. WisDHS voluntarily dismissed

Posted in Public records law by foiguy on July 15, 2013

That was quick. One month after the Milwaukee Journal Sentinel sued the Wisconsin Department of Health Services under the public records law, online court records indicate the case has been voluntarily dismissed. I suspect a settlement, though I can’t immediately confirm that.

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Milwaukee Journal Sentinel sues state agency over sex-offender housing documents

Posted in Public records law by foiguy on June 19, 2013

The Milwaukee Journal Sentinel is suing the state Department of Health Services over access to information about housing for sex offenders.

The lawsuit, filed June 11 in Dane County Circuit Court, challenges the department’s basis for redacting from lease agreements the addresses of rental properties where sex offenders on supervised release are living, as well as the names and addresses of the landlords.

The court action comes amid an audit of the state’s supervised release program for sex offenders. That audit was spurred, in part, by news reports of problems with the cost and processes of the release program. (See here, here and here.)

According to the complaint:

On March 7, Journal Sentinel reporter Patrick Marley requested from DHS “copies of all current contracts to house people on supervised release in the Chapter 980 program.”

Chapter 980 is a state law governing commitment and supervised release of sexually violent persons.

On May 9, DHS communications director Stephanie Smiley responded by email to Marley’s request. Smiley released some records, but claimed – without reference to any law, court case or the public record law’s balancing test – that “personal information” could not be disclosed.

“Personal information has been redacted as necessary,” Smiley wrote.

Smiley did not explain what “personal information” meant or why redacting such information was “necessary,” according to the complaint.

Under Wisconsin’s public records law, a record custodian must articulate a specific and sufficient public-policy basis for withholding a record.

That didn’t happen, the Journal Sentinel says.

“The representation that ‘[p]ersonal information has been redacted as necessary’ is a legal conclusion, not a public policy reason claimed to outweigh the presumption that the information DHS redacted must be disclosed, upon request, under the Open Records Law,” the complaint reads.

The newspaper also says withholding the redacted information prevents the public “from evaluating whether or not DHS is paying fair-market rent under the lease contracts at issue” and “from evaluating whether or not bias or favoritism is involved in awarding the lease contracts at issue.”

The complaint includes a redacted residential lease from Green Bay. The landlord name and address, street address of the leased premises and name of the tenant appear to be redacted.

The Journal Sentinel is asking a court to order DHS to release unredacted leases and to pay for attorney’s fees, court costs and damages.

Robert Dreps of Godfrey & Kahn’s Madison office is representing the newspaper.

Read the complaint

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New Richmond News wants public-records case back in state court

Posted in Public records law by foiguy on May 28, 2013

The New Richmond News wants its public-records lawsuit against the City of New Richmond returned to state court.

Attorneys for the newspaper filed a motion on May 17 to remand the case from federal court to St. Croix County Circuit Court, where the newspaper initiated the suit in March.

The city moved the proceedings to federal court in April.

At the heart of the case is a dispute about the interpretation and application of the Drivers Privacy Protection Act, or DPPA, a federal law regulating disclosure of information of motor vehicle records maintained by states.

In essence, the city contends that it is required under DPPA to redact personal information from public records, such as names of people identified in police reports, under certain conditions. The city says it is just following a 2012 ruling by the 7th U.S. Circuit Court of Appeals.

But the New Richmond News asserts the city is misinterpreting DPPA and the 7th Circuit’s ruling. The newspaper cites a 2008 informal opinion from the Wisconsin attorney general, which found that DPPA “does not require redaction of the personal information from law enforcement records provided in response to [a] public records request.”

Newspapers across the state have reported similar problems.

As to the dispute over venue, a federal judge is likely to decide whether the case belongs in state or federal court. The city’s response brief is due by June 7, and the newspaper’s reply brief is due by June 17.

You can read the newspaper’s motion to remand and supporting brief below. It’s fairly technical, but there’s an interesting nugget. The brief cites a 7th Circuit ruling on a public-records lawsuit in Illinois. In that case, the Chicago Tribune sued the University of Illinois over the university’s interpretation of a different federal law, the Family Education Rights and Privacy Act. The newspaper filed the suit in federal court, but the 7th Circuit held that the case should have been adjudicated in Illinois state court.

Newspaper’s motion to remand and supporting brief

View this document on Scribd

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SCOTUSblog co-founder on C-SPAN “Q&A”

Posted in Journalism, New media by foiguy on May 27, 2013

Journalism and law nerds, take note: Sunday night’s “Q&A” on C-SPAN featured SCOTUSblog co-founder Tom Goldstein.

In a wide-ranging interview, Goldstein talked about how he became interested in the Supreme Court (an internship with Nina Totenberg), why he and his wife started SCOTUSblog (a failed marketing ploy) and his appearances before the court as a litigator (he’s argued 28 cases).

“We have objectively the biggest effort to cover the Supreme Court – ever.”

Tom Goldstein
SCOTUSblog co-founder

Before the site launched, in 2002, Goldstein said there was no online space devoted exclusively to covering the Supreme Court. SCOTUSblog, he said, was intended to fix that.

“The Supreme Court is a really important institution,” Goldstein told interviewer Brian Lamb. “Everybody’s got to agree with that. From Bush versus Gore to the health care decision to affirmative action to same-sex marriage. And yet with all of the coverage of Congress and the president, there was no place that was paying complete attention to what the justices were doing. It was just a gap. It was just an opportunity.”

A really interesting bit of the interview is when Goldstein talked about SCOTUSblog’s relationships with legacy media. Goldstein was responding to a prompt from Lamb comparing how news organizations reference the site.

“You say that cable television people don’t have any problem talking about what you do, but the print press won’t promote you,” Lamb said.

Goldstein responded: “Well, I think that the print press has a harder time knowing what to do with us as we get more prominent. There are some parts of the print press, say The New York Times, that’s incredibly confident in its own position, doesn’t mind citing us at all. And there are other places that I think are worried about, in citing us, are they actually promoting a competitor. You know, The Washington Post doesn’t go out of its way to say ‘Oh The New York Times says,’ and we’re not of the stature of The New York Times, but I think we’re a puzzle on a lot of different levels. On the other hand, we try very hard to promote all of the traditional press. We have a round-up of everything they’re doing. On Twitter, which we’re involved with, we try hard. So everybody’s feeling their way forward.”

The discussion turned to cameras in the court toward the end of the interview (around 40 minutes in). Goldstein offered some interesting insight: He supports televising oral arguments, but said he understands why justices do not.

Said Goldstein:

  • “I think people would understand and appreciate and admire the Supreme Court more. And even if they didn’t, it’s the country’s right. Those are public proceedings in my opinion. The American public deserves to get to see the institution in operation.”
  • “I think it’s just going to take another generation. And it will change, and they will eventually televise it. I think it’s regrettable that they haven’t done it yet.”
  • “It’s an irony that the court so treasures the media, and the press, and the First Amendment, but when it comes to what happens to them, they are more suspicious.”

Watch the full program here.

Update (6-2-13): The program is now on YouTube.

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Wisconsin judge denies request to subpoena TV station

Posted in Reporter's privilege by foiguy on May 21, 2013

In one of the first court decisions on Wisconsin’s statutory shield law, a judge has denied a prosecutor’s request to subpoena a television station.

Dane County Circuit Judge Rebecca St. John ruled Monday that the district attorney there, Ismael Ozanne, could not force Madison’s WISC-TV to release unaired portions of an interview with a sexual assault victim.

St. John based her decision on Wisconsin’s statutory shield law, Wis. Stat. § 885.14. The law says a subpoena directed at a journalist seeking unpublished information must be issued by a court, and only under the following criteria:

  1. The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.
  2. The news, information, or identity of the source is necessary to the maintenance of a party’s claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.
  3. The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.
  4. There is an overriding public interest in the disclosure of the news, information, or identity of the source.

St. John held that the DA met the first requirement – that the unpublished material was highly relevant to the sexual assault investigation. But the DA failed to meet the three remaining requirements.

In her ruling, St. John recognized why the DA sought the subpoena and wrote that she “lauds the State in its effort to thoroughly investigate before bringing sexual assault charges.”

“Prosecutors have an incredibly weighty job,” St. John wrote. “They must decide whether and when to bring criminal charges against someone in the course of a dynamic investigation that could go on indefinitely and that may turn up incomplete, inconsistent, or inaccurate information.”

Monday’s ruling is at least the second time a circuit court judge has applied the state’s statutory shield law, which was enacted in 2010. A Sauk County judge in November rejected a request from the state Department of Justice to subpoena three reporters.

WISC-TV was represented by Ian Pitz of Michael Best & Friedrich’s Madison office.

Additional coverage from WISC-TV and the Wisconsin State Journal.

Read St. John’s ruling

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Citizens group alleges City of Lake Geneva violated open meetings law

Posted in Open meetings law by foiguy on May 14, 2013

A citizens group sued the City of Lake Geneva Monday alleging it violated Wisconsin’s open meetings law.

The group, Care for Lake Geneva, claims that the Lake Geneva City Council illegally took action at a June 2011 meeting behind closed doors and without giving enough public notice. The complaint, filed in Walworth County Circuit Court, targets a memorandum of understanding the council approved at the meeting, which laid the groundwork for a legal settlement with a developer that had sued the city in 2009.


The lawsuit asks a judge to declare that the city violated the open meetings law, void the memorandum of understanding and reimburse the group for court costs and attorney’s fees.


Care for Lake Geneva’s lawsuit alleges the city council violated the open meetings law when it approved the memorandum in closed session. That vote, the group says, should have happened in public.

The suit also claims that the agenda for the June 2011 meeting did not sufficiently describe what would occur at the meeting. The notice in the agenda said the council intended to enter closed session to discuss the developer’s lawsuit and confer with the city’s lawyers.

The notice read, in relevant part: “Motion to go into Closed Session . . . to confer with legal counsel who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation which it is or is likely to become involved in re: Geneva Ridge Joint Venture and Peller Investments, LLC.”

According to the minutes of the meeting, the council returned to open session and voted unanimously “to continue negotiations . . . in accordance with the terms discussed in closed session.”

But Care for Lake Geneva argues the city council did more. The group contends that the memorandum of understanding the council approved at the meeting also altered the city’s comprehensive master plan, an effect that should have been included in the public notice, the group says.

“The City Council violated Wis. Stat. § 19.84 by failing to provide public notice that it intended to convene a meeting during which it would vote to bind the City to amend the Comprehensive Master Plan,” the complaint reads.

On March 14, the group asked Walworth County District Attorney Daniel Necci to sue the city, but Necci declined, according to the complaint.

The lawsuit asks a judge to declare that the city violated the open meetings law, void the memorandum of understanding and reimburse the group for court costs and attorney’s fees.

The case stems from a botched development proposal and subsequent litigation that has lingered for years. An Illinois company had proposed developing more than 700 acres of rural land in Lake Geneva. But city officials thwarted the plan, and in 2009, the company filed a federal lawsuit against the city seeking more than $100 million. That lawsuit led city officials to approve the memorandum of understanding , which essentially identified the steps the city and developer would have to take to resolve the case. The suit was officially settled in September 2011.

This is not the first time Care for Lake Geneva has gone to court. The group sued the city in 2012 to obtain a copy of the memorandum of understanding, which the city eventually agreed to release in a settlement.

News organizations have also taken legal action to shed light on how the city handled the development proposal. The Lake Geneva Regional News sued an alderwoman in 2010 to obtain emails about the proposal. (A settlement was reached.) That same year, the Janesville Gazette sought an opinion from the state attorney general about access to similar records.

Care for Lake Geneva is represented by Foley & Lardner of Milwaukee.

Read the complaint

View this document on Scribd

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Evening links / May 13, 2013

Posted in Evening links by foiguy on May 13, 2013


  • Rock County’s district attorney has stopped referring defendants to the veterans court there. The Janesville Gazette broke the story. I followed up today for the Wisconsin Law Journal.
  • Johnson Controls is being sued for patent infringement. Here’s the complaint, filed in U.S. District Court in Madison.


  • Supreme Court justices apparently can’t decide whether to take up Elmbrook School District v. Doe. The court today did not announce a decision on the fate of the Wisconsin case, which is on appeal from the Seventh Circuit Court of Appeals. The court will again consider the case at its May 16 conference, according to SCOTUSblog. (David Savage wrote about the case on Saturday for the Chicago Tribune.)
  • Other major SCOTUS news: Monsanto prevailed today in its seed-patent case. Justice Elena Kagan wrote the opinion for a unanimous court. NYT, WaPo, LATNPR. Two University of Wisconsin Law School professors – Shubha Ghosh and Peter Carstensen – co-authored an amicus brief in support of the farmer at the center of the case. Also, the Wisconsin Alumni Research Foundation lead an amicus brief, which was joined by universities from around the United States.
  • USDOJ seized two months of AP phone records, the NYT reports this evening. The case is likely tied to a leak investigation. In a letter to AG Eric Holder, AP President Gary Pruitt said DOJ may have violated federal rules. “We regard this action by the Department of Justice as a serious interference with AP’s constitutional rights to gather and report the news,” Pruitt wrote.