AB621: Bill Text

In Woznicki v. Erickson, 202 Wis.2d 178, 192-193 (1996), the Wisconsin supreme court held that a district attorney must notify any individual who is the subject of a record which the district attorney proposes to release to a requester prior to release, and that the individual may appeal a decision to release a record to circuit court, which must determine whether permitting access would result in harm to the privacy or reputational interests of the subject individual that outweigh the public interest in allowing access. In Milwaukee Teachers Education Assn. v. Milwaukee Bd. of School Directors, 227 Wis. 2d 779, 799 (1999), the supreme court expanded this decision to apply to all public records. There is no statutory basis for these decisions. The decisions also depart from the supreme court's previous decisions, which held that, unless otherwise provided, custodians have no obligation to withhold public records from access and no person may require them to do so. See Newspapers, Inc. v. Brier, 89 Wis.2d 417, 431-32 (1979) and State ex rel. Bilder v. Twp. of Delavan, 112 Wis.2d 539, 558 (1983).

This bill affirms current statutory law by providing that, unless otherwise specifically provided by statute, no custodian of a public record is required to notify an individual who is the subject of a record prior to providing to a requester access to a record containing information pertaining to that individual and that, unless otherwise provided by statute, no person is entitled to judicial review of the decision of a custodian to provide a requester with access to a public record.

However, the bill also creates a statutory procedure under which, with certain exceptions, individuals who are the subjects of public records relating to certain specific personnel matters may seek a court order to restrain state or local government officers or agencies from providing access to those records to third parties if the subject individuals can demonstrate that the harm to their privacy or reputational interests resulting from disclosure of the information contained in those records outweighs the public interest in providing access to those records. Under the bill, if the officer or agency having custody of a public record receives a request to provide access to a record containing information relating to any of the personnel matters specified in the bill, the officer or agency must, before providing access, provide written notice to each subject individual of the officer's or agency's intent to provide access to the record. If a subject individual notifies the officer or agency, within 5 days, of his or her intent to seek a court order restraining release of the record and files an action seeking such an order within 10 days, the record may not be released unless the court so permits.

Autopsy records

Under current law, the public has a right to inspect or copy public records unless otherwise provided by law or unless the custodian of the record demonstrates that the public interest in withholding access to the record outweighs the strong public interest in providing access. Autopsy reports, including pictures taken during autopsies, are public records, if maintained by a government official or entity, including a coroner, medical examiner, or district attorney.

This bill creates an exception to the public right to inspect or copy public records specifically for autopsy reports. The bill also prohibits the custodian of an autopsy record or any person involved in conducting an autopsy from releasing to the public any information learned during an autopsy concerning the deceased or the cause of his or her death without permission from the deceased's next of kin, except information necessary to complete the medical certification on a certificate of death.

Privacy impact statements

This bill provides that whenever a bill is introduced in either house of the legislature that would have an impact upon personal privacy, any standing committee to which the bill is referred must not hold a public hearing on the bill or report the bill until a privacy impact statement is prepared and received. The statement is prepared by one or more state agencies or authorities, as determined by the department of administration. The statement describes the impact upon personal privacy that would result from enactment of the bill and analyzes the desirability of that impact from the standpoint of public policy. The bill also permits either house of the legislature, under rules of that house or joint rules, to request the department of administration to order the preparation of a privacy impact statement with respect to any bill before that house, either in its original form or as affected by one or more amendments.

Under the bill, a bill has an impact on personal privacy if the bill would:

1. Provide for the creation of additional personally identifiable information that is not readily available to the public at the time the bill is introduced;

2. Create an activity that would constitute an intrusion upon the privacy of an individual, or alter an activity in such a way as to create such an intrusion;

3. Use the name, picture, or likeness of an individual without the consent of the individual, or the consent of the individual's parent or guardian if the individual is a minor; or

4. Permit or cause publicity to be given to the private life of an individual.

Policies on entering locker rooms

This bill requires each school board, private school, technical college district board, institution and two-year collegiate campus of the University of Wisconsin System, private institution of higher education, and professional athletic team that has its home field or arena in this state to adopt a written policy on who may enter and remain in a locker room used by the school or team to interview or seek information from any person. The policy must reflect the privacy interests of the members of the teams representing the school or the professional athletic team.

Telephone solicitations

The bill prohibits a telephone solicitor or employee or contractor of a telephone solicitor from using a blocking service that defeats caller identification when making a telephone solicitation. A person who violates this prohibition may be subject to a forfeiture of $100, which is the same forfeiture that applies to violations of other telephone solicitation requirements under current law. As with other telephone solicitation requirements under current law, the department of agriculture, trade and consumer protection (DATCP) has enforcement authority regarding the prohibition.

Photographs of residential property

This bill prohibits a taxation district from posting photographs of residential property located in the taxation district on the Internet.

Privacy and security information officers

Under current law, the department of electronic government (DEG) has general responsibility, with certain exceptions, for management of the state's information technology and telecommunications systems, applications, infrastructure, and information resources, and human resources devoted to developing and maintaining information technology systems. DEG is headed by the state chief information officer.

This bill directs the chief information officer to appoint employees of DEG to serve as a privacy information officer and a security information officer. The privacy information officer is directed to provide information to employees of DEG and other persons who are or may be the subject of any information maintained or processed by DEG concerning applicable laws, rules, and regulations governing the protection of privacy. The security information officer is directed to ensure the security of information maintained or processed by DEG. Under the bill, the functions of the privacy information officer and security information officer may not be supervised by a division administrator whose position is included in the unclassified service.

Disclosure of juvenile records

Under current law, subject to certain exceptions, law enforcement agency records of a juvenile, the records of the court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court), and the records of a municipal court exercising jurisdiction in a proceeding against a juvenile for a local ordinance violation are confidential and may not be opened to inspection or their contents disclosed except by order of the juvenile court. Currently, those exceptions include an exception that permits the confidential exchange of information between law enforcement agencies; an exception that requires a juvenile court, on the request of a law enforcement agency to review the juvenile court's records for the purpose of investigating alleged criminal gang activity, to open for inspection by the law enforcement agency the records of the juvenile court relating to any juvenile who has committed a felony at the request of or for the benefit of a criminal gang; and an exception that requires a juvenile court, on the request of any other juvenile court, a district attorney, or a corporation counsel to review the juvenile court's records for the purpose of any proceeding in that other juvenile court, to open for inspection by the requester the records of the juvenile court relating to any juvenile who has been the subject of a proceeding under the Children's Code or the Juvenile Justice Code.

This bill permits a law enforcement agency to disclose information in its records relating to a juvenile as follows:

1. To another law enforcement agency as necessary for the other law enforcement agency to pursue an investigation of any alleged criminal or delinquent activity.

2. To a juvenile court, a municipal court, or a district attorney, corporation counsel, municipal attorney, or other person representing the interests of the public in a proceeding under the Children's Code or the Juvenile Justice Code as necessary for the court to conduct, or for the person representing the interests of the public to prepare for, a proceeding in that court.

3. To a juvenile court intake worker as necessary for the intake worker to provide intake services.

Similarly, the bill requires a juvenile court or a municipal court to disclose its records relating to a juvenile as follows:

1. To a law enforcement agency as necessary for the law enforcement agency to pursue an investigation of any alleged criminal or delinquent activity.

2. To another juvenile court, another municipal court, or a district attorney, corporation counsel, municipal attorney, or other person representing the interests of the public in a proceeding under the Children's Code or the Juvenile Justice Code as necessary for the other court to conduct, or for the person representing the interests of the public to prepare for, a proceeding in that court.

3. To a juvenile court intake worker as necessary for the intake worker to provide intake services.

The bill requires a person who obtains information under the bill to keep the information confidential and permits the person to disclose the information only for the purpose for which the information was obtained or as otherwise permitted under current law, as affected by the bill.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB621, s. 1 Section 1. 13.0991 of the statutes is created to read:

AB621,7,2 13.0991 Privacy impact statements. (1) In this section:

AB621,7,3 (a) "Authority" means a body created under ch. 231, 232, 233, 234, or 235.

AB621,7,5 (b) "Impact upon personal privacy" means that a bill would do one or more of the following:

AB621,7,7 1. Provide for the creation of additional personally identifiable information that is not readily available to the public at the time the bill is introduced.

AB621,7,9 2. Create an activity that would constitute an intrusion upon the privacy of an individual, or alter an activity in such a way as to create such an intrusion.

AB621,8,3 3. Use the name, picture, or likeness of an individual without the consent of the individual, or the consent of the individual's parent or guardian if the individual is a minor.

AB621,8,4 4. Permit or cause publicity to be given to the private life of an individual.

AB621,8,6 (c) "Personally identifiable information" has the meaning given under s. 19.62 (5).

AB621,8,11 (d) "State agency" means an office, department, independent agency, institution of higher education, association, society, or other body in state government created or authorized to be created by the constitution or any law, which is entitled to expend moneys appropriated by law, including the legislature and the courts, but not including an authority.

AB621,8,14 (2) (a) Whenever a bill is introduced in either house of the legislature that would have an impact upon personal privacy, the legislative reference bureau shall promptly transmit a copy of the bill to the department of administration.

AB621,8,20 (b) Either house of the legislature may, under rules of that house or joint rules of the legislature, request the department of administration to order the preparation of a privacy impact statement with respect to any bill before that house, either in its original form or as affected by one or more amendments. If a house so requests, the chief clerk of that house shall thereupon transmit a copy of that bill and any affected amendments to the department of administration.

AB621,8,25 (3) Upon receipt of a bill under sub. (2), the department of administration shall direct one or more state agencies or authorities to prepare a privacy impact statement with respect to that bill. Each privacy impact statement shall describe the impact upon personal privacy that would result from enactment of the bill and analyze the desirability of that impact from the standpoint of public policy.

AB621,9,3 (4) Each state agency or authority receiving a bill under sub. (3) shall provide the statement required under sub. (3) to the department of administration within 15 days after the department's directive.

AB621,9,8 (5) Upon receiving a privacy impact statement under sub. (4), the department of administration shall provide one copy to the legislative reference bureau, one copy to the principal author of the bill, and one copy to the chief clerk of the house of the legislature in which the bill originated. The chief clerk shall thereupon distribute the statement in the same manner as amendments to the bill are distributed.

AB621,9,13 (6) Whenever a bill requires preparation of a privacy impact statement under this section, the legislative reference bureau shall include a notation to that effect on the jacket of the bill when the jacket is prepared. If the preparation of a privacy impact statement is requested by a house of the legislature, the chief clerk of that house shall include a notation to that effect on the jacket of the bill.

AB621,9,17 (7) Whenever a privacy impact statement is required or requested for any bill under this section, a standing committee to which the bill is referred may not hold a public hearing on the bill or report the bill until the statement is received by the chief clerk of the house in which the bill originated.

AB621, s. 2 Section 2. 19.32 (1bg), (1dm), (2g) and (4) of the statutes are created to read:

AB621,9,21 19.32 (1bg) "Employee" means an individual who is employed by an authority, other than an individual holding a local public office or a state public office, or any individual who is employed by an employer other than an authority.

AB621,9,22 (1dm) "Local public office" has the meaning given in s. 19.42 (7w).

AB621,9,24 (2g) "Record subject" means an individual about whom personally identifiable information is contained in a record.

AB621,10,2 (4) "State public office" has the meaning given in s. 19.42 (13), but does not include a position identified in s. 20.923 (6) (em) to (gm).

AB621, s. 3 Section 3. 19.356 of the statutes is created to read:

AB621,10,8 19.356 Notice to record subject; right of action. (1) Except as authorized in this section or as otherwise provided by statute, no authority is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject, and no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record.

AB621,10,14 (2) (a) Except as provided in pars. (b) and (c) and except as otherwise required by law, an authority shall, before permitting access and within 72 hours after making a decision to permit access to a record, notify any record subject to whom the record pertains, either by certified mail with return receipt signed by the addressee or by personally serving the notice on the record subject, if the record contains any of the following:

AB621,10,18 1. Information concerning the authority's investigation into a disciplinary matter relating to an employee or a possible violation by an employee of a policy of the employee's employer, or of a statute, rule, regulation, or ordinance in connection with the employee's employment.

AB621,10,21 2. Information prepared or provided by an employer concerning the home address or telephone number of an employee of that employer, if the employee has not consented for the authority to provide access to that information.

AB621,11,2 3. Information relating to one or more employees that is used by the authority or by the employer of the employees for staff management planning or employee evaluation, including employee performance evaluations, judgments or recommendations concerning future salary adjustments or other employee wage treatments, management employee bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to individual employees.

AB621,11,7 4. Information pertaining to an employee's employment examination, except an examination score if access to that score is not otherwise prohibited. This subdivision does not apply to information relating to the hiring or recruitment process that is exchanged between the department of employment relations and an authority that is a unit of state government.

AB621,11,12 (b) Paragraph (a) does not apply to an authority who provides access to a record pertaining to an employee to the employee who is the subject of the record or to his or her representative to the extent required under s. 103.13 or to a collective bargaining representative to the extent required to fulfill a duty to bargain or pursuant to a collective bargaining agreement under ch. 111.

AB621,11,15 (c) Paragraph (a) does not apply to access to a record produced in relation to a function specified in s. 106.54 or 230.45 or subch. II of ch. 111 if the record is provided by an authority having responsibility for that function.

AB621,11,17 (3) The notice under sub. (2) (a) shall briefly describe the requested record and include a description of the rights of the record subject under this section.

AB621,11,20 (4) Within 5 days after receipt of a notice under sub. (2) (a), any record subject may provide written notification to the authority of his or her intent to seek a court order restraining the authority from providing access to the requested record.

AB621,11,25 (5) Within 10 days after receipt of a notice under sub. (2) (a), any record subject may commence an action seeking a court order to restrain the authority from providing access to the requested record. If a record subject commences such an action, the record subject shall name the authority as a defendant. The record subject shall also join the requester as a party to the action under s. 803.03.

AB621,12,10 (6) An authority shall not provide access to a requested record within 12 days of sending a notice pertaining to that record under sub. (2) (a). In addition, if the record subject commences an action under sub. (5), the authority shall not provide access to the requested record during pendency of the action. If the record subject appeals or petitions for review of a decision of the court or the time for appeal or petition for review of a decision adverse to the record subject has not expired, the authority shall not provide access to the requested record until any appeal is decided, until the period for appealing or petitioning for review expires, until a petition for review is denied, or until the authority receives written notice from the record subject that an appeal or petition for review will not be filed, whichever occurs first.

AB621,12,15 (7) If the record subject demonstrates that the harm to his or her privacy or reputational interests caused by disclosure of the information contained in the requested record outweighs the public interest in disclosure of that information, the court shall restrain the authority from providing access to that record under s. 19.35 (1).

AB621,12,21 (8) The court shall not grant any request by a requester to delay the proceedings. The court shall issue a decision within 10 days after the filing of the summons and complaint and proof of service of the summons and complaint upon the defendant and the requester, unless a party demonstrates cause for extension of this period. In any event, the court shall issue a decision within 30 days after those filings are complete.

AB621,12,24 (9) If a party appeals a decision of the court under sub. (8), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by law.

AB621, s. 4 Section 4. 19.37 (2) (c) of the statutes is created to read:

AB621,13,2 19.37 (2) (c) This subsection does not apply to any action filed by a record subject against an authority under s. 19.356.

AB621, s. 5 Section 5. 22.21 of the statutes is created to read:

AB621,13,9 22.21 Privacy and security information officers. (1) The chief information officer shall appoint an employee of the department to serve as a privacy information officer. The privacy information officer shall provide information to employees of the department and other persons who are or may be the subject of any information maintained or processed by the department concerning applicable laws, rules, and regulations governing the protection of privacy.

AB621,13,12 (2) The chief information officer shall appoint an employee of the department to serve as a security information officer. The security information officer shall ensure the security of information maintained or processed by the department.

AB621, s. 6 Section 6. 36.11 (35) (title) of the statutes is renumbered 36.32 (title).

AB621, s. 7 Section 7. 36.11 (35) of the statutes is renumbered 36.32 (2) and amended to read:

AB621,13,24 36.32 (2) The board An institution of higher education may assign to each student enrolled in the system institution a unique identification number. The board An institution of higher education shall not assign to any student an identification number that is identical to or incorporates the student's social security number. This subsection does not prohibit the board an institution of higher education from requiring a student to disclose his or her social security number, nor from using a student's social security number if such use is required by a federal or state agency or private organization in order for the system or the student to participate in a particular program.

AB621, s. 8 Section 8. 36.32 (1) of the statutes is created to read:

AB621,14,4 36.32 (1) In this section, "institution of higher education" means an institution within the system, or a private educational institution located in this state that awards a bachelor's or higher degree or provides a program that is acceptable toward such a degree.

AB621, s. 9 Section 9. 36.38 of the statutes is created to read:

AB621,14,11 36.38 Policy on privacy in athletic locker rooms. Each institution and college campus shall adopt a written policy on who may enter and remain, to interview or seek information from any person, in a locker room being used by an athletic team representing the institution or college campus. The policy shall reflect the privacy interests of members of athletic teams representing the institution or college campus.

AB621, s. 10 Section 10. 38.12 (12) of the statutes is created to read:

AB621,14,17 38.12 (12) Policy on privacy in athletic locker rooms. The district board shall adopt a written policy on who may enter and remain, to interview or seek information from any person, in a locker room being used by an athletic team representing the district. The policy shall reflect the privacy interests of members of athletic teams representing the district.