Amendment ASA2-AB621

LRBs0272/1

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2001 - 2002 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 2, TO 2001 ASSEMBLY BILL 621

January 8, 2002 - Offered by Committee on Personal Privacy.

AB621-ASA2,2,13 An Act to renumber 36.11 (35) (title) and 230.13 (3); to renumber and amend 36.11 (35) and 48.396 (2) (g); to amend 40.07 (1) (intro.) and (3), 48.236 (4) (a), 48.396 (1), 48.396 (5) (a) (intro.), 48.78 (2) (b), 146.81 (1) (fm), 146.81 (4), 230.13 (1) (intro.), 233.13 (intro.), 301.029 (2) (a), 938.396 (1), 938.396 (2) (c), 938.396 (2) (gm), 938.396 (5) (a) (intro.) and 938.78 (2) (b) 1.; and to create 13.0991, 19.32 (1bg), (1de), (1dm), (2g) and (4), 19.345, 19.356, 19.36 (10) and (11), 22.21, 36.32 (1), 36.38, 38.12 (12), 39.49, 48.396 (1h), 48.396 (1j), 48.396 (1k), 48.396 (2) (c), 48.396 (2) (gr), 100.52 (1) (bg) and (br), 100.52 (4) (a) 4., 118.39, 146.82 (2) (bm), 146.84 (1) (d), 146.84 (5), 175.22, 230.08 (4) (b) 5., 230.13 (3) (b), 938.396 (1h), 938.396 (1j), 938.396 (1k), 938.396 (2) (gr) and 979.028 of the statutes; relating to: the use of a person's social security number in his or her student identification number at private institutions of higher education; department of corrections contracts involving prisoner access to an individual's date of birth; confidentiality of patient health care records; access to public records; access to autopsy records; preparation of privacy impact statements for bills that would impact personal privacy; written policies on entering locker rooms being used by athletic teams representing certain schools or by professional athletic teams; prohibiting certain telephone solicitations; appointment of certain officers in the department of electronic government; and disclosure of the records of a law enforcement agency or of a juvenile or municipal court to other law enforcement agencies, to other juvenile or municipal courts, to juvenile court intake workers, to dispositional staff of the department of health and family services, the department of corrections, a county department of human services or social services, or a child welfare agency, and to district attorneys, corporation counsels, and other representatives of the public interest.

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

AB621-ASA2, s. 1 Section 1. 13.0991 of the statutes is created to read:

AB621-ASA2,2,15 13.0991 Privacy impact statements. (1) In this section:

AB621-ASA2,2,16 (a) "Authority" means a body created under ch. 231, 232, 233, 234, or 235.

AB621-ASA2,2,18 (b) "Impact upon personal privacy" means that a bill would do one or more of the following:

AB621-ASA2,2,20 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-ASA2,2,22 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-ASA2,3,3 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-ASA2,3,4 4. Permit or cause publicity to be given to the private life of an individual.

AB621-ASA2,3,6 (c) "Personally identifiable information" has the meaning given under s. 19.62 (5).

AB621-ASA2,3,11 (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-ASA2,3,14 (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-ASA2,3,20 (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-ASA2,3,25 (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-ASA2,4,3 (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-ASA2,4,8 (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-ASA2,4,13 (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-ASA2,4,17 (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-ASA2, s. 2 Section 2. 19.32 (1bg), (1de), (1dm), (2g) and (4) of the statutes are created to read:

AB621-ASA2,4,22 19.32 (1bg) "Employee" means an individual who is engaged in employment in this state, other than an individual holding a state public office or a local public office.

AB621-ASA2,4,23 (1de) "Local governmental unit" has the meaning given in s. 19.42 (7u).

AB621-ASA2,5,2 (1dm) "Local public office" has the meaning given in s. 19.42 (7w), and also includes any appointive office or position of a local governmental unit in which an individual serves as the head of a department, agency, or division of the local governmental unit.

AB621-ASA2,5,4 (2g) "Record subject" means an individual about whom personally identifiable information is contained in a record.

AB621-ASA2,5,6 (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-ASA2, s. 3 Section 3. 19.345 of the statutes is created to read:

AB621-ASA2,5,11 19.345 Time computation. In ss. 19.33 to 19.39, when a time period is provided for performing an act, whether the period is expressed in hours or days, the whole of Saturday, Sunday, and any legal holiday, from midnight to midnight, shall be excluded in computing the period.

AB621-ASA2, s. 4 Section 4. 19.356 of the statutes is created to read:

AB621-ASA2,5,17 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-ASA2,6,4 (2) (a) Except as provided in pars. (b) to (d) and as otherwise authorized or required by statute, if an authority decides to permit access to a record containing information relating to an employee that is created or kept by the authority as a result of the authority's investigation into a disciplinary matter involving the employee or possible violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer, or any record obtained by the authority through a subpoena or search warrant, the authority shall, before permitting access and within 72 hours after making the decision to permit access, serve written notice of that decision on any record subject to whom that record pertains, either by certified mail or by personally serving the notice on the subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under subs. (3) and (4).

AB621-ASA2,6,9 (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-ASA2,6,15 (c) Paragraph (a) does not apply to an investigation by an authority who or which is charged with the responsibility to enforce a law, ordinance, rule, or regulation that is applicable to individuals other than officers or employees of the authority or persons under contract with the authority unless the investigation involves an officer or employee of the authority or a person under contract with the authority.

AB621-ASA2,6,18 (d) 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-ASA2,6,21 (3) Within 5 days after receipt of a notice under sub. (2), 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-ASA2,7,2 (4) Within 10 days after receipt of a notice under sub. (2), 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. Notwithstanding s. 803.09, the requester may intervene in the action as a matter of right.

AB621-ASA2,7,12 (5) An authority shall not provide access to a requested record within 12 days of sending a notice pertaining to that record under sub. (2). In addition, if the record subject commences an action under sub. (4), 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-ASA2,7,15 (6) The court may restrain the authority from providing access to the requested record. The court shall apply substantive common law principles construing the right to inspect, copy, or receive copies of records in making its decision.

AB621-ASA2,7,21 (7) 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-ASA2,7,24 (8) If a party appeals a decision of the court under sub. (7), the court of appeals shall grant precedence to the appeal over all other matters not accorded similar precedence by law.

AB621-ASA2, s. 5 Section 5. 19.36 (10) and (11) of the statutes are created to read:

AB621-ASA2,8,6 19.36 (10) Employee personnel records. Unless access is specifically authorized or required by statute, an authority shall not provide access to records containing the following information under s. 19.35 (1), except to an employee or the employee's 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 under ch. 111 or pursuant to a collective bargaining agreement under ch. 111:

AB621-ASA2,8,9 (a) Information prepared or provided by an employer concerning the home address or telephone number of an employee, unless the employee authorizes the authority to provide access to such information.

AB621-ASA2,8,12 (b) Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.

AB621-ASA2,8,14 (c) Information pertaining to an employee's employment examination, except an examination score if access to that score is not otherwise prohibited.

AB621-ASA2,8,20 (d) Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees.

AB621-ASA2,8,25 (11) Information relating to certain employees. Except as otherwise authorized or required by statute, no authority may permit access to a record prepared or provided by an employer, other than an authority, that contains personally identifiable information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information.