Brenda O'Malley figured she'd get the police accident report and
file an insurance claim after her teenage daughter got into a car
accident in Sheboygan Falls this past spring.
But the report
turned out to be so redacted — or blacked-out — it was
useless. She called the mayor, the city attorney and the federal
Department of Transportation before the state Department of
Transportation finally handed over a complete report two weeks
after the crash.
"It was a
mess," O'Malley said.
Wisconsin who find themselves in car accidents, arrested or the
victim of a crime are having an increasingly tougher time
obtaining police reports, key documents that offer an official
narrative of events that can prove crucial for making insurance
claims and learning who has been arrested and for what.
Police say a
federal appeals court ruling in an Illinois case last year
concluded law enforcement agencies cannot release information
gleaned through motor vehicle records, including names, addresses,
gender and other personal details. More Wisconsin agencies are
pulling out their redacting pens before they hand out anything in
hopes of avoiding lawsuits.
exactly how many police departments across the state have adopted
a redaction policy, but Sheboygan Falls Police Chief Steven Riffel
said more agencies are doing it than not.
another department tells me they're going to the redaction
policy," Riffel, president of the Wisconsin Chiefs of Police
Association, said. "The chiefs I talk to, I don't necessarily
know they really agree with not releasing the records. It's a lot
more work, more professional aggravation (to redact information
from the reports). But we're really between a rock and a hard
Not only has the
approach left people like the O'Malleys throwing up their hands,
it's got open government advocates fuming. They say the legal
interpretation flies in the face of the state's open records law
and denies the public oversight of law enforcement operations.
they're doing is basically turning our state's tradition of open
government on its head," said Bill Lueders, president of the
Wisconsin Freedom of Information Council.
The 1994 Driver's
Privacy Protection Act requires states to obtain consent before
they release a driver's personal information. The federal law was
passed after an actress was killed in 1989 by a stalker who found
her address through Department of Motor Vehicle records.
Three years ago,
a man named Jason Senne sued the village of Palatine, Ill., for
leaving a parking ticket on his car that listed his name, address,
driver's license number, birthdate, gender, height and weight. He
claimed the disclosure violated the DPPA. A district court tossed
the case and a 7th Circuit Court panel agreed. The full 7th
Circuit Court heard the case and reversed the decision last year.
Palatine has asked the U.S. Supreme Court to weigh in.
Attorney General J.B. Van Hollen released an informal opinion in
2008 saying the DPPA doesn't restrict how state agencies use state
DOT data, adding that Wisconsin's open records law states the
public is entitled to the greatest possible information about
government. Van Hollen has declined to issue any further guidance
in the wake of the Senne ruling, though, saying his office wants
to see whether the Supreme Court takes action.
around the state have been advising police to haul out their
redacting pens to make sure they're not sued. And they've been
following that advice.
have stopped posting traffic accident reports on their website. In
northwestern Wisconsin, the New Richmond News has sued the city of
New Richmond alleging police were redacting too much information,
a violation of the state's open records law.
Police Chief Mark Samelstad wrote in a letter to the newspaper the
redaction policy will stand because it complies with the law.
"While I may
not agree with the Federal Courts decision on this issue,
nonetheless I have an obligation to follow the court's
ruling," he said.
possible to obtain complete crash reports directly from the state
Department of Transportation, like Brenda O'Malley did. It
generally takes 10 days for police to submit the paperwork to DOT,
however, creating delays for those who request it.
also are redacting personal identifying details from incident
reports, documents that offer narratives of crimes and the roles
of those involved. The agencies argue that much of the blacked-out
information is drawn from DOT records, triggering the federal
driver's privacy law, Riffel said.
City Attorney Tara Alfonso said prosecutors can still include
names, addresses and birthdates in criminal complaints and online
court records. Police just have to operate by a different
U.S. Rep. Tom
Petri, R-Fond du Lac, said he has received complaints from his
constituents and would be willing to look at the issue.
point it becomes important for the public to know about certain
things, specifically accident reports which are used by insurance
companies and others," he said in a statement.
who finally used the accident report to secure an insurance payout
for the damage to her daughter's car, called the police
understand protecting people. I really do understand that in the
world we live in. But in an accident you really need to know that
information," she said. "It just doesn't seem