AB621: Bill Text

LRB-3774/5

JTK/DK/PK/ML/PG/PD/RC/MK/GM/JK/RR:wlj&cjs:jf

2001 - 2002 LEGISLATURE

2001 Assembly BILL 621

November 8, 2001 - Introduced by Personal Privacy. Referred to Committee on Personal Privacy.

AB621,2,11 An Act to renumber 36.11 (35) (title); to renumber and amend 36.11 (35) and 48.396 (2) (g); to amend 40.51 (8), 40.51 (8m), 48.396 (1), 48.396 (5) (a) (intro.), 66.0137 (4), 111.91 (2) (kc), 120.13 (2) (g), 146.81 (1) (fm), 146.81 (4), 185.981 (4t), 185.983 (1) (intro.), 301.029 (2) (a), 938.396 (1), 938.396 (2) (c), 938.396 (2) (gm) and 938.396 (5) (a) (intro.); and to create 13.0991, 19.32 (1bg), (1dm), (2g) and (4), 19.356, 19.37 (2) (c), 22.21, 36.32 (1), 36.38, 38.12 (12), 39.49, 40.07 (4), 48.396 (1h), 48.396 (1j), 48.396 (1k), 48.396 (2) (c), 48.396 (2) (gr), 74.80, 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., 609.837, 610.65, 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; prohibiting showing social security numbers on insurance identification cards; department of corrections contracts involving prisoner access to an individual's date of birth; confidentiality of patient health care records; access to certain public records containing personally identifiable information; 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; prohibiting posting photographs of residential property on the Internet; 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, and to district attorneys, corporation counsels, and other representatives of the public interest.

Analysis by the Legislative Reference Bureau

This bill creates various prohibitions, restrictions, and requirements, and makes changes in existing laws with respect to protection of personal privacy and security of personal information, and changes the place of trial for certain existing crimes. The changes include:

Identification numbers for private college students

Under current law, the University of Wisconsin System, a technical college district board, a school board, and the governing body of a private school are prohibited from assigning to any student an identification number that is identical to or incorporates the student's social security number.

Beginning January 1, 2007, this bill extends this prohibition to private institutions of higher education located in this state.

Prohibiting social security numbers on insurance cards

This bill prohibits an identification card, or other similar identification device, that is issued to an insured or enrollee from showing the insured's or enrollee's social security number as an identification number or in any other manner. The prohibition applies to an insurer; a risk-sharing plan, including the state health insurance risk-sharing plan; the private employer health care coverage program established by the department of employee trust funds; and any self-insured plan of the state or a county, city, village, town, or school district. Current law does not address information shown on insurance identification cards or prohibit using a person's social security number as, or in, the person's insurance identification number.

Prohibiting prisoners who perform data entry from having access to an individual's date of birth

Under current law, the department of corrections (DOC) is prohibited from entering into any contract that would result in a prisoner performing data entry or telemarketing services and having access to an individual's financial transaction card numbers, checking or savings account numbers, or social security number. This bill adds an individual's date of birth to the list of information that a prisoner may not have access to while doing data entry or telemarketing services under a contract entered into by DOC.

Confidentiality of patient health care records

Under current law, all records related to the health of a patient that are prepared by or under the supervision of a health care provider (patient health care records) are confidential and may be released only to persons with the informed consent of the patient or of a person authorized by the patient. There are numerous exceptions to this prohibition that require patient health care records to be released upon request, without informed consent, including release to another health care provider who is rendering assistance to the patient. A person who obtains a patient health care record under one of these exceptions must keep the information confidential and may not disclose identifying information about the patient.

This bill prohibits a person who is a recipient of a patient health care record that is required to be released without informed consent from using identifying information in the record to market a service or product to a patient or health care provider. The bill expands the definitions of "health care provider" and "patient health care record," for the purposes of confidentiality of patient health care records, to include a pharmacy that is licensed by the pharmacy examining board. The bill also establishes civil liability for a person who obtains a patient health care record from a pharmacy or pharmacist under circumstances that constitute a violation of the patient health care record confidentiality laws. Lastly, the bill authorizes the department of justice or a district attorney to bring an action to enforce the laws relating to confidentiality of patient health care records or to restrain a violation of the laws by temporary or permanent injunction.

Access to public records containing personally identifiable information

Under current law, any requester has a right to inspect or copy any public record unless otherwise provided under statutory or common law or unless, under a "balancing test" derived from common law, the custodian demonstrates that the public interest in withholding access to the record outweighs the strong public interest in providing that access. See s. 19.35 (1), stats., and State ex rel. Youmans v. Owens, 28 Wis.2d 672, 682-83 (1965) and Hathaway v. Green Bay School District, 116 Wis. 2d 388, 395-96 (1984). If a custodian fails to provide prompt access to a requested record or to make this demonstration, a requester may obtain a court order requiring a custodian to provide access to a record. See s. 19.37 (1), stats.

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.