UW-Milwaukee Out of Step With Agreement on Open Records

UW-Milwaukee is shielding information from the public in a manner that is out of step with a sweeping new agreement hashed out this summer by the state’s top newspaper association and the organization that represents Wisconsin municipalities.

Furthermore, UWM’s open records custodian has cited federal privacy laws as one reason for blacking out information in police reports, even though national and state open government advocates say that is a misapplication of what is called FERPA. UWM’s new open records custodian attempted to apply FERPA to information about motorists who are not students, even though that privacy law generally applies to education records – of students.

Part of UWM’s rationale for denying key pieces of information to student journalists stems from another state court decision into drivers’ records and privacy. However, although Wisconsin governmental entities did start redacting information based on that decision for some time, the Wisconsin Newspaper Association and Wisconsin League of Municipalities this June reached an agreement to allow release of the information to the news media.

And a Wisconsin judge has ruled the law doesn’t apply to Wisconsin public records.

The Media Milwaukee journalist had sought police reports relating to traffic accidents near campus handled by the campus police (such as student pedestrians or bicyclists struck by motorists). The journalist received reports but with key information redacted.

The rationale of the WNA and League of Municipalities’ agreement, according to the WNA, is that public affairs reporting has a correlation to public safety, and thus falls under an exemption in the Federal Driver’s Privacy and Protection Act.  Thus, they say, the information in traffic accident and police reports should be provided to the news media.

Although UWM does not fall under the jurisdiction of the League of Municipalities, its denials now mean that the university is taking a stance to shield information in public records that Wisconsin municipalities are being advised to not black out.

“Public records are the cornerstone of the citizenry’s ability to monitor the functions of government,” said Jessica McBride, a senior journalism lecturer at UW-Milwaukee, who is the co-editor of Media Milwaukee, the award-winning student news site that filed the open records request.  “We are concerned that UWM is preventing our student journalists from learning information that top organizations have already decided should be open to the public.”

What originally started as a story about pedestrian and bicycle versus automobile accidents ended up revealing much more about the way open records requests are handled at UW-Milwaukee.

Media Milwaukee filed an open records request to UW-Milwaukee police on Nov. 6, 2014 to inspect police reports on a bicycle versus automobile accident that occurred on Nov. 4, “as well as any other police reports that involve pedestrians being struck by a vehicle that have occurred within the past five years in the jurisdiction of the UWM campus police.” In addition, we also requested, “aggregate number of car vs. pedestrian or bicycle incidents that UWM police have handled form 2009 to present.”

The new UWM Public Records Custodian, Julie Kipp, fulfilled the first part of the request with the aggregate numbers on Nov. 14. Media Milwaukee later narrowed down the police report request to six incident reports, with three coming from 2013 and 2014. Kipp redacted information, of both motorists and pedestrians/bicyclists, such as names, addresses, phone numbers, injuries, and other information, even in cases that had the statuses of, “inactive,” “cleared,” or “closed.”

According to the letter sent from Kipp to Media Milwaukee on Nov. 25, the reasons for the redaction were a required balancing test under the open records law, the Federal Driver’s Privacy and Protection Act, the “rights of privacy and dignity for crime victims and their families,” under the state constitution and state statutes, and the Federal Education Rights and Privacy Act.

According to Frank LoMonte, the executive director of the Student Press Law Center in Virginia, FERPA does not apply to police records.

In addition, according to the Family Educational Rights and Privacy Act Regulations on the U.S. Dept. of Education website, “The Act neither requires or prohibits the disclosure by any educational agency or institution of its law enforcement records.”  LoMonte also explained that the balancing test is a “very limited test” regarding information that, when released, could damage a person or reveal something embarrassing that would hurt the person involved. In addition, LoMonte said that the balancing test as applied here doesn’t apply to personal privacy when you engage with the police.

In addition, according to LoMonte, the Driver’s Privacy and Protection Act applies to, “a very limited set of records” in the fact that it “applies to people who issue driver’s licenses records,” for example, the Wisconsin Department of Motor Vehicles.

Media Milwaukee issued a letter on Dec. 1 to contest that FERPA was being given as a reason to redact names, addresses, phone numbers, injuries, licenses, and other information, especially of motorists who aren’t even students. According to UWMPD records, for example, an offense report from Dec. 6, 2013 listed the patient as “No UWM Affiliation,” and an incident report from Nov. 21, 2013 listed both the patient and the victim as “no affiliation” to campus.

Kipp issued a response the same day still citing the “balancing test with regard to the personal information in the police reports,” the Wisconsin Constitution and state statues with regard to “the rights of privacy and dignity for crime victims,” and the Driver’s Privacy and Protection Act.  She said FERPA was not the only thing she had couched her redactions on.

Media Milwaukee also spoke with Julie Hunter, the members’ services director at the Wisconsin Newspaper Association, who sent the news site a variety of information concerning public records and disputes over public records. According to Hunter, the Wisconsin Newspaper Association reached an agreement with Wisconsin municipalities and insurers to start releasing redacted information. There was a lot of news coverage on the agreement at the time.  According to the news coverage, the new agreement provides exemptions under DPPA when records are desired for public safety. As long as media requestors note they are using this exception, local governments are supposed to release unredacted records.

According to the July 2014 WNA newsletter, “The Bulletin,” on June 3, local media representative and local governments attended a summit on June 3, hosted by the WNA to discuss law enforcement records redactions. “As a result of the June talks, local government representatives and issuers have agreed to recommend that their members/clients will release unredacted records containing, ‘personal information’ derived from the Department of Motor Vehicles database.”

Media Milwaukee  sent Kipp another letter on Dec. 5, to contest the balancing test, the Driver’s Privacy and Protection Act, citing the information from LoMonte and Hunter.

The news site also included a copy of the Limited Vehicle/Driver Record Information Request Form and cited, “For use under the Open Records law in relation to motor vehicle or public safety or for use in news gathering and/or reporting as authorized under the open records law in relation to motor vehicles or public safety.”

As of Dec. 5. Public Records has not issued a response to Media Milwaukee’s second contest of the law. The news organization also filed a request for random theft reports handled by UWM police to see if those would also be redacted. As of press time, Kipp said those reports will be made available to the student journalist, but they had not yet been received.