Review of a published court of appeals decision; case activity (including briefs)
Issues (from petition for review):
Does Wis. Stat. §19.356 preclude petitioners from seeking a declaratory judgment that the DOJ’s alias name policy violates Wisconsin’s public records law?
Don’t be misled by the bland statement of the first issue. Teague has asked SCOW to decide whether the DOJ should be allowed to hand out false criminal history records about innocent people in response to open records requests.
Does Wis. Stat. § 19.70 require DOJ to correct or supplement the criminal history reports it produces in response to name-based requests about innocent subjects once those subjects demonstrate to DOJ they have no criminal history?
Does the DOJ’s alias name policy violate equal protection by discriminating irrationally against one class of “innocent” person?
Does the DOJ’s alias name policy violate substantive due process by knowingly identifying innocent people with criminal records that are not their own?
Is the DOJ’s criminal history database sufficiently like other government databases that courts must apply the constitutional principles developed in those cases?
The punchy intro to Teague’s petition for review highlights why this case is so important.
The plaintiffs are innocent. They have no criminal records. The Wisconsin Department of Justice (DOJ) knows they are innocent. Yet, when a member of the public requests a name-based criminal background check on the plaintiffs, the DOJ does not send the one page report DOJ sends for other innocents. Instead, the DOJ sends lengthy rap sheets containing some other person’s criminal history. DOJ could, with minimal effort, send out true, clean, criminal history reports, or seek further information to determine whose record the requestor is actually seeking, but DOJ claims they have no duty to do so. The Court of Appeals concluded that plaintiffs cannot challenge DOJ’s policy on open records grounds and have no constitutional right to expect better of the government.
SCOW’s resolution of this issue is going to be very interesting. As noted in our prior post, which gets into the finer of points of law, the real problem is one that Judge Sherman identified in his concurrence:
Just because one can do something does not mean that one ought to. Irrespective of this court’s ability to resolve the problem, why does the authority not resolve the problem itself? The authority has suggested no governmental reason not to do so. A citizen of this state is being harmed by a practice of the government that has no apparent governmental purpose and that would be easy and inexpensive to correct, yet the only response of the authority is that it will continue to do so because there is no law that compels it to do otherwise. In essence, we are doing this to you because we can. That is the response of a bully and not an appropriate response of the government of a democracy. ¶80.
