¶ 24.
All of my answers share two common premises, however.¶ 25.
First, an absolute right of examination applies to Wisconsin circuit court records required to be kept in the office of the clerk of circuit court. Wis. Stat. § 59.20(3); State ex rel. Bilder v. Delavan Tp., 112 Wis. 2d 539, 551-54, 334 N.W.2d 252 (1983). The clerk must file and keep all papers properly deposited with him or her in every action or proceeding. Wis. Stat. § 59.40(2)(a); Bilder, 112 Wis. 2d at 554.¶ 26.
There are three exceptions to the “absolute right of examination” rule. First, documents may be closed to public inspection when a statute authorizes the sealing of otherwise public records. Second, documents may be closed to public inspection if disclosure would infringe on a constitutional right. Third, when required by the administration of justice, a circuit court may order documents or cases sealed pursuant to the court’s inherent authority to preserve and protect the exercise of its judicial function. Bilder, 112 Wis. 2d at 554-56; Madison v. Madison Human Serv. Comm’n, 122 Wis. 2d 488, 491-92, 361 N.W.2d 734 (Ct. App. 1984) (statutory exception prohibiting disclosure of general relief applicants and recipients for purposes not connected with administration of relief programs). Your various questions implicate the first and third exceptions.¶ 27.
Second, the WIJIS Workflow Engine is just a conduit for electronic data messages passing through the warrant or protection order interfaces. Unless a transmission problem occurs at the WIJIS Workflow Engine, WIJIS staff have no need or reason to open any electronic data message, view the contents of any individual message, or generally browse the contents of messages passing through the interfaces. The troubleshooting role of WIJIS staff with respect to the interfaces therefore is the same as any other technician or contractor who might be called upon to deal with a problem in existing transmission mechanisms—such as fixing a malfunctioning FAX machine.¶ 28.
In an analogous situation, a particular non-confidential employee’s technical ability to access sensitive collective bargaining documents stored on a public employer’s computer was determined not to compromise the employer’s proper expectation of confidence in collective bargaining matters. Mineral Point Unified Sch. Dist. v. WERC, 2002 WI App 48, ¶ 27, 251 Wis. 2d 325, 641 N.W.2d 701. Underlying that determination was the rationale that de minimus exposure to confidential information by a designated assistant in the proper course of official duties did not compromise confidentiality of the sensitive information. Lack of need, reason, or opportunity for support personnel to “browse” at will through confidential substantive information similarly characterizes the limited technical support role of WIJIS staff with respect to electronic data messages passing through the interfaces.¶ 29.
For any record-keeping system to function properly, information handlers such as technical consultants or clerical assistants must be able to see enough of the system to operate it properly. Information technology staff and contractors now function in logistical support roles previously occupied by secretaries and file clerks. Assuming other appropriate security measures, that limited technical access in the course of supporting official business is materially and permissibly different from impermissible, unrestrained access to confidential substantive information stored in restricted sections of CCAP’s databases or other confidential court records.1. May electronic data messages about arrest warrants issued in juvenile cases that are confidential pursuant to Wis. Stat. § 938.396(2) be transmitted through the warrant interface? ¶ 30.
As your letter indicates, the Wisconsin Children’s Code and Juvenile Code restrict access to court records of children and juveniles who are the subject of Wis. Stat. chs. 48 and 938 proceedings. Wis. Stat. §§ 48.396(2) and 938.396(2). Court records of Wis. Stat. ch. 938 proceedings “shall not be open to inspection or their contents disclosed except by order of the court assigned” or as allowed by designated exceptions. Wis. Stat. § 938.396(2). “Confidentiality is essential to the goal of rehabilitation, which is in turn the major purpose of the separate juvenile justice system.” State ex rel. Herget v. Circuit Court, 84 Wis. 2d 435, 451, 267 N.W.2d 309 (1978). See also Wis. Stat. § 938.01(2).¶ 31.
CCAP therefore provides electronic information about these cases in restricted areas accessible only by authorized persons. Attorneys and others who would qualify under statutory exceptions to access information about some of these cases, but not others, cannot be allowed access to these restricted areas under existing provisions of Wis. Stat. §§ 48.396(2) and 938.396(2). The problem is that allowing such access would not prevent browsing—even inadvertently—through comprehensible information about confidential cases that a particular CCAP user was not entitled to access.¶ 32.
Conversely, authorized WIJIS technical personnel would not have unfettered substantive access to data moving through the warrant and protection order interfaces. Any such access, as described above, would occur only when required to troubleshoot electronic data transmissions necessary to effectuate court orders and facilitate court operations. WIJIS personnel who might incidentally see juvenile case information while troubleshooting a related electronic data message would not be browsing for substantive information. They instead would be functioning in a limited contractor-like technical capacity, essentially as court personnel, no different from a file clerk who makes photocopies of confidential court orders for mailing to counsel. Any incidental contact with confidential case information while serving the court is far different from opening a juvenile case file to the general public, and would further—by bringing the warrant subject into juvenile court—rather than undermine the rehabilitative purposes of the juvenile justice system.¶ 33.
Substantive content limitations cannot be applied to prevent necessary personnel from executing court functions. Juvenile case confidentiality restrictions, for example, must give way to other statutory provisions authorizing counsel to access court records of his or her clients. State ex rel. S.M.O. v. Resheske, 110 Wis. 2d 447, 329 N.W.2d 275 (Ct. App. 1982) (despite limited access provisions of Wis. Stat. § 48.396(2), it cannot be seriously argued that an attorney should not have access to a client’s record in fashion not inconsistent with juvenile case confidentiality provisions).¶ 34.
Similarly, Wis. Stat. § 751.02 authorizes the supreme court to authorize employees it deems necessary for executing court system functions. See also In re Janitor of Supreme Court, 35 Wis. 410, 419 (1874) (“It is a power inherent in every court of record . . . to appoint such assistants; and the court itself is to judge of the necessity.”); SCR 70.01(2)(a) and (d), 70.04 (responsibility and authority of the Director of State Courts for personnel and court information systems). Necessary personnel sometimes will be vendors or independent contractors, analogous to WIJIS’ role with respect to the warrant and protection order interfaces. There is a difference between disclosing sealed or confidential records to the world at large, and disclosing them in an incidental, limited fashion to a professionally-interested and necessary person. Cf. State v. Gilmore, 201 Wis. 2d 820, 833, 549 N.W.2d 401 (1996). WIJIS technical personnel who might need to troubleshoot data transmissions along the warrant interface are professionally-interested persons necessary to sharing juvenile warrant information that effectuates operation of the juvenile courts.¶ 35.
The nature of any access by WIJIS technical personnel to juvenile warrant data transmissions travelling through the warrant interface therefore is qualitatively different from other impermissible access to confidential court records or information, such as allowing attorneys unrestricted access to CCAP areas containing confidential juvenile case information. In my opinion, this very limited access by WIJIS technical personnel would not violate Wis. Stat. § 938.396 confidentiality requirements.2. May electronic data messages about adult arrest warrants be transmitted through the warrant interface if either the warrant or the case in which it was issued has been ordered sealed by the court?
¶ 36.
The purpose of sealing an arrest warrant or a criminal case is to preserve secrecy and prevent disclosure to the public. Cf. State v. Doe, 2005 WI App 68, ¶ 11, 280 Wis. 2d 731, 697 N.W.2d 101. “[T]he more common meaning of disclosure involves making known or public that which has previously been held close or secret.” Gilmore, 201 Wis. 2d at 833; see also State v. Polashek, 2002 WI 74, ¶ 19, 253 Wis. 2d 527, 646 N.W.2d 330. An arrest warrant might be sealed, for example, to prevent flight by the named person or to avoid alerting confederates of the named person.¶ 37.
In my opinion, sending transient electronic data messages about an adult arrest warrant through the warrant interface does not constitute making known or public the content of those data messages. The vast majority of messages will pass through the WIJIS Workflow Engine unopened and unviewed. To the extent that a specific transmission problem might require WIJIS’ information technology personnel to examine a particular message in order to facilitate transmission of the message to its intended recipient, those information technology personnel are functioning only as professionally interested strangers with a very specific and limited role unrelated to substantive content of the message. Any incidental viewing of substantive content by WIJIS technical staff does not constitute making public the content of the electronic data message. The underlying purpose of sealing a particular warrant or case—to prevent disclosure to the public for an identifiable and significant reason—is not compromised by permitting WIJIS technical staff to troubleshoot transmission of the message. Access and disclosure restrictions imposed on WIJIS technical staff through a confidentiality agreement, as discussed in response to Question No. 7 below, would help insure that any WIJIS technical staff authorized to access messages flowing through the warrant interface understand and follow appropriate procedural parameters for opening and reading messages moving through the interface.3. May electronic data messages about an arrest warrant be transmitted through the warrant interface if the warrant was issued in John Doe proceedings that have been sealed pursuant to Wis. Stat. § 968.26? ¶ 38.
Yes, for the same reasons explained above in answer to Question Nos. 1 and 2.¶ 39.
I also note that secrecy may be an important aspect of a John Doe proceeding, of assistance to the fact-finding process, because:[i]t keeps information from a target who might consider fleeing; prevents a suspect from collecting perjured testimony for the trial; prevents those interested in thwarting the inquiry from tampering with testimony or secreting evidence; and renders witnesses more free in their disclosures.
State ex rel. Individual Subpoenaed v. Davis, 2005 WI 70, ¶ 20, 281 Wis. 2d 431, 697 N.W.2d 803 (footnote omitted). If a John Doe proceeding is secret, Wis. Stat. § 968.26 provides that “the record of the proceeding and the testimony taken shall not be open to inspection by anyone except the district attorney” unless and to the extent that it is used by the prosecution at preliminary examination or trial of the accused person. A proper secrecy order consequently covers questions asked, witnesses’ answers, transcripts, exhibits, and other matters observed or heard at a secret John Doe proceeding. Individual Subpoenaed, 281 Wis. 2d 431, ¶ 21. ¶ 40.
In my opinion, the reasons for keeping John Doe proceedings secret would not be compromised by allowing electronic data messages regarding sealed arrest warrants or sealed John Doe cases to travel through the warrant interface. Access to confidential substantive content would be strictly limited, as discussed above, and could be reinforced through an appropriate confidentiality agreement. Any such access would not amount to opening the matter for public inspection and would not threaten creating the premature disclosure problems that a John Doe proceeding is sealed to prevent. Moreover, electronic data messages travelling through the warrant interface would not include the types of information properly covered by a secrecy order: questions asked, witnesses’ answers, transcripts, exhibits, and other matters observed or heard at a secret John Doe proceeding. The electronic data message instead would consist of a simple directive to arrest and produce a particular individual.4. May electronic data messages be transmitted through the protection order interface regarding a child abuse protection order in an action in which the court has ordered, pursuant to Wis. Stat. § 813.122(3)(b)3., that access to any record of the action be available only to the parties, their attorneys, any guardian ad litem, court personnel and any applicable appellate court? Similarly, may electronic data messages be transmitted through the protection order interface regarding an individual at risk protection order in an action in which the court has ordered, pursuant to Wis. Stat. § 813.123(3)(c)2., that access to any record of the case be available only to the individual at risk, parties, their attorneys, any guardian or guardian ad litem, court personnel and any applicable appellate court? ¶ 41.
Yes, for the same reasons explained above in answer to Question Nos. 1 and 2. In this context, WIJIS technology staff function as an extension of the court personnel effectuating orders rendered by the court.5. May electronic data messages be transmitted through the protection order interface regarding a domestic abuse protection order issued pursuant to Wis. Stat. § 813.12 in an action which the court has ordered sealed? May electronic data messages be transmitted through the protection order interface regarding a harassment protection order issued pursuant to Wis. Stat. § 813.125 in an action which the court has ordered sealed? ¶ 42.
Yes, for the same reasons explained above in answer to Question Nos. 1, 2, and 4.¶ 43.
In addition, the domestic abuse protection order statute and the harassment protection order statute lack express provisions like Wis. Stat. §§ 813.122(3)(b)3. and 813.123(3)(c)2. that authorize a court to limit access to any record of the case. Both the domestic abuse protection order statute, in Wis. Stat. § 813.12(5m), and the harassment protection order statute, in Wis. Stat. § 813.125(5m) do provide that any petition or court order shall not disclose the address of the victim. Limiting the information contained in two specific documents does not amount to general sealing of the underlying action.6. For criminal, John Doe, or protection order cases that are sealed or expunged after issuance of a warrant or protection order about which an electronic data message has been transmitted through the warrant interface, should the court system require that WIJIS seal or expunge the case on the WIJIS Workflow Engine?
¶ 44.
Based on the technical information provided by Ms. Bousquet, Ms. Olson, and Mr. Sartin, it is my understanding that WIJIS will not retain any copy of a transient electronic data message passing through the warrant interface via the WIJIS Workflow Engine once delivery of the electronic data message has been verified. Therefore, nothing will remain at WIJIS to be sealed or expunged if a case is sealed or expunged after an arrest warrant is issued.¶ 45.
Furthermore, based on the same technical information, it is my understanding that correction of a previous electronic data message will be accomplished by sending another electronic data message to update the receiving agency’s database—not by replacing or erasing the first message. Lack of any retained information at WIJIS accordingly distinguishes transfer of transient electronic information through the WIJIS Workflow Engine from CCAP’s other data-sharing arrangements with justice partners who retain case information received from CCAP in the partners’ own databases to be updated or expunged as subsequent events might dictate.7. Should CCAP enter into written agreements with WIJIS governing access by WIJIS personnel to case information contained in electronic data messages transmitted through the warrant and protection order interfaces. If so, what kind of provisions should these agreements include?
¶ 46.
Although not legally required, it would be a good business practice to execute written agreements with WIJIS clarifying and memorializing the limited purposes for which WIJIS personnel would be permitted to access case information in the electronic data messages transmitted through the warrant and protection order interfaces. Although the information that has been the primary subject of this opinion is confidential by law or court order, many other warrants and protection orders also implicate serious confidentiality concerns. Moreover, it is my understanding that the electronic data messages themselves would not indicate whether they involved a sealed warrant, sealed case, or other sealed matter. While a written agreement between CCAP and WIJIS regarding legally confidential or sealed information travelling through each interface would be beneficial, therefore, I also recommend that the access, use, and, disclosure provisions of those agreements apply to all case information moving through the interfaces regardless of whether it derives from a sealed or otherwise legally confidential matter.¶ 47.
Provisions similar to the CCAP Data Access Policy dated April 23, 2008, tailored to the nature of the information to which WIJIS personnel will have access and the reasons why WIJIS personnel may need to open electronic data messages for troubleshooting purposes, would be appropriate. Any confidentiality agreement also should specify the WIJIS personnel, by job classification or similar identification, who will be permitted to open and examine electronic data messages moving through the interface; how supervisory oversight of those personnel will be accomplished; and the availability of sanctions or discipline for violation of applicable confidentiality policies.¶ 48.
I hope you find this information helpful as these beneficial new criminal justice interfaces are finalized. Sincerely,
J.B. VAN HOLLEN
Attorney General
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