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News’ suit against city headed to circuit court

A lawsuit against the New Richmond Police, which challenges its current practice of withholding information about traffic accidents, break-ins and other police activity, is on its way back to St. Croix County Circuit Court — the result of a decision by federal Magistrate Judge Stephen L. Crocker in Madison.

The New Richmond News filed the lawsuit against the City of New Richmond last March, alleging the city’s police department was unreasonably restricting access to timely information on accident and incident reports, on the basis of a misinterpretation of a recent U.S. Court of Appeals Seventh Circuit ruling.

The ruling issued Thursday by Crocker came after the City of New Richmond had removed the case to federal court, on the assertion the Driver’s Privacy Protection Act was sufficient to establish federal jurisdiction. The attorney for the News, Robert Dreps of Godfrey & Kahn’s Madison office, disagreed on the belief the City was raising the DPPA as a defense to the News’ state law public records enforcement action, and a federal defense is not sufficient to establish federal jurisdiction.

By challenging the federal jurisdiction issue, the News avoided the possibility of the case wending its way through the federal court process only to be eventually turned back to a state court to decide the issue.

The lawsuit names the city as the defendant because it is responsible for the actions of the police department. It asks that the department reverse its policies and pay attorneys fees.

The newspaper and the department disagree on the interpretation and application of the Driver’s Privacy Protection Act to request access to law enforcement records under the Open Records Law.

The police department claims that the DPPA requires redaction or blacking out of identifying information — names, addresses, dates of birth and driver licence numbers — before records are released if that information came from motor vehicle records maintained by the Department of Transportation. The News disagrees, citing a 2008 Wisconsin Attorney General’s ruling in its filing.

In early January 2013, the News requested several accident and incident reports from the New Richmond Police Department. Police Chief Mark Samelstad released the reports about 10 days later with names, addresses and dates of birth blacked out. Previous to mid-December 2012, such information was routinely made available to the newspaper immediately or once a police investigation had been completed.

Media in several other parts of Wisconsin also began to receive blacked-out reports following release of a memo by the Wisconsin League of Municipalities warning that cities could be at risk for lawsuits and paying damages if they didn’t limit public access to certain data.

At last count, at least 70 police and sheriff’s departments statewide were limiting the release of information, pending clarification of the Illinois ruling. Meanwhile, many other departments have not restricted the public’s access to records.

Under Wisconsin’s Open Records Law, it is the declared public policy that every citizen is entitled to the greatest possible information regarding the affairs of government, wrote Dreps, the attorney representing the News. The statute affirms the presumption of complete public access to governmental records, consistent with government business, and provides that the “denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied” Dreps wrote, quoting the statute, then adding “This is not an exceptional case.”

Crocker’s decision came after a four-month wait.

Records in the case are now being returned to St. Croix County Circuit Court where it will be reviewed and decided by Judge Howard Cameron.

Dreps said he’s hopeful briefings will be completed and the issue ready for decision by early next year.

The Wisconsin records impasse stems from a federal case — Senne v. Village of Palatine — in which a man who received a $20 parking ticket in the Illinois city, filed a class action lawsuit against the village in federal court, claiming violation of privacy in that his name, address, date of birth, height, weight and driver’s license number was placed in plain view on his windshield.

A court panel ruled against him in the filing but upon appeal to the entire court, a panel whose jurisdiction extends to Illinois, Wisconsin and Indiana, his claim was upheld and the court awarded damages of $80 million.

Some attorneys soon suggested that municipalities, community colleges, and other governmental entities that issue parking tickets should immediately review their practices to ensure that they comply with the court’s decision.

The court first found that placing the parking ticket on Senne’s windshield constituted a “disclosure” under the act because any passerby could have viewed the ticket, even though there were no facts to suggest that anyone had actually done so during the five hours before it was removed from the windshield.

An appeal for review by the U.S. Supreme Court is in-process but is still wending its way through the legal process.

Steve Dzubay

Steve Dzubay has been publisher at the River Falls Journal and Hudson Star Observer from 1995-2016. He holds a bachelors degree in journalism from the University of Minnesota. He previously worked as a reporter-photographer at small daily newspapers in Minnesota and is past editor of the Pierce County Herald and River Falls Journal.