oag2-10

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            February 16, 2010       OAG-02-10

Mr. A. John Voelker

Director of State Courts
16 East, State Capitol
Madison, WI 53702

Dear Mr. Voelker:

¶ 1.

You have requested my opinion regarding electronic transmission of certain confidential case information among clerks of circuit court, county sheriff’s offices, and the Department of Justice (“DOJ”) TIME System[1] through two new electronic interfaces involving the Wisconsin Department of Administration’s Office of Justice Assistance (“OJA”) Wisconsin Justice Information Sharing Program (“WIJIS”) as a secondary transport system. In my opinion, applicable law permits these electronic transmissions through the new interfaces.

¶ 2.

I understand that one of the new interfaces will transmit arrest warrant information to the county sheriff’s office as an arrest warrant is issued by a circuit court using the Consolidated Court Automation Programs system (“CCAP”). The sheriff’s office will add certain information, then transmit the warrant to the TIME System for purposes of notifying law enforcement statewide. When the warrant is executed, the sheriff’s office will use the same interface to transmit service information back to the circuit court. In this opinion, I will refer to this as the “warrant interface.”

¶ 3.

The other new interface will perform the same functions for temporary restraining orders and injunctions issued pursuant to Wis. Stat. ch. 813. In this opinion, I will refer to this as the “protection order interface.”

¶ 4.

You indicate that the court system transmits other confidential case information through various electronic interfaces with other agencies, but that the warrant interface and the protection order interface differ in one critical aspect from those other interfaces. In addition to transmitting information through CCAP, the warrant interface and the protection order interface also utilize the secondary data transport system operated by WIJIS. Your questions arise because WIJIS does not have express statutory authority to independently obtain certain confidential data that would be transmitted through the warrant interface and the protection order interface.

FACTUAL BACKGROUND

¶ 5.

Understanding how the warrant and protection order interfaces work is necessary to frame my answers to your questions. CCAP Chief Information Officer Jean Bousquet (“Ms. Bousquet”), CCAP Customer Services Manager Andrea Olson (“Ms. Olson”), and WIJIS Program Manager Jeff Sartin (“Mr. Sartin”) provided the following technical information, upon which my answers are based.

¶ 6.

CCAP Electronic Interfaces Generally. According to Ms. Bousquet and Ms. Olson, CCAP’s typical data exchanges with a justice system partner through an electronic interface start by establishing the data elements to be shared in incoming and outgoing messages: what information the courts will share electronically with the justice system partner, and what information the justice system partner will share with the courts. CCAP and the justice system partner then create a “schema” describing the structure of the electronic messages that will be used to exchange data. The schema is an organizational plan defining the data elements and attributes that can be included in an electronic message and providing for data verification. A data element is a particular category of information, like a person’s surname. The attributes of a data element describe how the data element will be expressed in an electronic message, such as whether letters or numbers will be used. Extensible Markup Language (“XML”) is used to structure the data elements and attributes in a specific electronic message, consistent with the plan established by the schema.

¶ 7.

An electronic interface generally operates by transmitting XML electronic messages through CCAP’s Simple Transport Exchange Protocol (“STEP”) Server,[2] which is part of the court’s secure wide area network. The STEP Server is an automated delivery service for electronic data exchanges; it accommodates the messaging services for all electronic data exchanges between the court system and its justice partners. A useful way to conceptualize the STEP Server is as a post office for electronic data messages.

¶ 8.

An electronic data message transmitted through the STEP Server starts with preparation of the message at a sending agency by a computer program called a Publishing Client. The Publishing Client prepares the electronic data message in XML and then sends the message to the STEP Server. The Publishing Client creates and sends electronic data messages automatically when a triggering event occurs in the sending agency’s database, such as issuance of a warrant by a judge. Message queues on the STEP Server hold and route messages for the various receiving agencies.

¶ 9.

A receiving agency uses another computer program called a Subscribing Client to acquire the electronic data message from the STEP Server. After acquiring the message from the STEP Server, the Subscribing Client then updates the receiving agency’s database with the information contained in the electronic data message.

¶ 10.

CCAP staff support and maintain the STEP Server hardware and its custom software. CCAP staff also troubleshoot transmission problems that arise as electronic data messages move through the data transport system. All CCAP staff and contractors are required to sign CCAP’s Data Access Policy which, among other things, prohibits: (1) viewing any confidential or restricted information stored on any court system database for non-work purposes, or (2) discussing or disclosing any confidential or restricted information except as required for work.

¶ 11.

Electronic Interfaces for Arrest Warrants and Protection Orders. The new warrant and protection order interfaces add another component to the typical information flow described above. In addition to routing the electronic data message through CCAP’s STEP Server, it also is routed through WIJIS’ workflow engine (the “WIJIS Workflow Engine”). One way to think of the WIJIS Workflow Engine is as an initial collection point for mail from law enforcement headed to the post office.

¶ 12.

According to Mr. Sartin, the WIJIS Workflow Engine is a computer application housed on a dedicated server. The server is physically housed in DOJ’s secure server area. Only a small number of WIJIS computer programmers are authorized to access the server that houses the WIJIS Workflow Engine, Mr. Sartin indicates, and must log in with passwords. These WIJIS personnel must pass the same stringent DOJ background checks as DOJ’s computer services personnel.

¶ 13.

Mr. Sartin indicates that the WIJIS Workflow Engine provides a uniform interface for the diverse records management systems used at various law enforcement agencies, and ensures that electronic data messages are sent securely. In the warrant and protection order interfaces, according to Ms. Bousquet, the electronic data message created by a law enforcement agency when a triggering event occurs is routed to the WIJIS Workflow Engine. The WIJIS Workflow Engine forwards the electronic data message to the message queue on CCAP’s STEP Server for delivery to the court. Conversely, an electronic data message from a court to a law enforcement agency is transmitted to the STEP Server message queue. The WIJIS Workflow Engine retrieves the electronic data message from the STEP Server queue and then queues the message for pick up by the receiving law enforcement agency.

¶ 14.

Ms. Olson advises that transmission of the actual warrant or protection order that triggered the electronic data message moving through an interface will vary by county. Some counties will scan the warrant or protection order and attach a scanned copy to the electronic data message moving through the interface. Other counties will continue to use existing physical transmission practices such as hand-carrying or faxing copies, which the receiving agency then will match up with the companion electronic data messages received through the interface.

¶ 15.

As currently programmed, according to Ms. Olson, the XML electronic data messages that will travel through the warrant and protection order interfaces do not include an indicator that a particular document or the underlying action has been sealed. If the court orders the underlying action to be sealed after an electronic data message about a warrant or a protection order has been transmitted, she advises, a second XML electronic data message would be sent to update the information transmitted in the first message; that second message would correct information in the receiving agency’s database, not replace or erase the initial message.

¶ 16.

The WIJIS Workflow Engine therefore operates like a mailbox, according to Mr. Sartin. A message is received, temporarily stored while queued on the secure system, then delivered to the authorized partner to which it is addressed. Because WIJIS processes data only for purposes of transmission, not for search or analysis, electronic data will be retained only temporarily on the WIJIS server for purposes of troubleshooting and delivery verification.

¶ 17.

Troubleshooting WIJIS Work Engine Problems. Troubleshooting transmission problems that occur as electronic data messages move through the WIJIS Work Engine will be handled by WIJIS staff. In some cases, according to Mr. Sartin, that may involve opening and reviewing portions of a message to determine if the message has been corrupted or has other technical problems. Samples of the electronic data messages that will be transmitted through the warrant and protection order interfaces, provided by Ms. Olson, indicate that the messages are sufficiently comprehensible to be generally understood by a reader unfamiliar with the underlying legal action but knowledgeable about the applicable schema. WIJIS troubleshooting should not require opening the scanned warrant or protection order that might be attached to a particular XML electronic data message, according to Ms. Bousquet.

¶ 18.

Confidentiality Issues. Your letter indicates that the vast majority of electronic data messages travelling through the warrant and protection order interfaces will not involve confidential information. Your inquiry instead is prompted by the relatively small number of warrants and protection orders involving legally confidential information.

¶ 19.

Regarding the warrant interface, arrest warrants issued in juvenile cases are subject to the Wis. Stat. § 938.396(2) general rule of confidentiality for juvenile cases. Arrest warrants issued in criminal cases sometimes are ordered sealed; although rare, a criminal case itself may be ordered sealed. John Doe cases also may be sealed by court order pursuant to Wis. Stat. § 968.26. Between 2005 and 2008, your letter indicates, arrest warrants were issued in four criminal cases before those cases were sealed; no arrest warrants were issued in criminal cases after the underlying cases were sealed; and no arrest warrants were issued in John Doe cases that had been ordered sealed. With respect to some of your questions about the warrant interface, I also note that a small number of criminal cases are formally expunged from court records each year. Cf. Wis. Stat. § 973.015(2).

¶ 20.

Regarding the protection order interface, you again indicate that orders to seal are not common. For the period 2005-2008, there was 1 order to seal domestic abuse protection order proceedings pursuant to Wis. Stat. § 813.12; 1 order to seal harassment protection order proceedings pursuant to Wis. Stat. § 813.125; and no orders to seal individual at risk protection order proceedings pursuant to Wis. Stat. § 813.123(3)(c). You note that orders to seal child abuse protection order proceedings pursuant to Wis. Stat. § 813.122(3)(b) occur somewhat more frequently; during 2005‑2008, orders to seal were issued in 30 of the 2,741 cases filed.

¶ 21.

According to Ms. Olson, transmitting warrant and protection order information through the new interfaces is expected to be faster and more efficient than existing paper exchanges. Resulting database entries at the sending and receiving agencies also are expected to be more accurate because information no longer will need to be re-entered manually.

¶ 22.

If the confidential information cannot be transmitted through the warrant and protection order interfaces, your letter indicates, that information will continue to be transmitted via paper copies. According to Ms. Olson, delivery mechanisms for paper copies currently vary by county but include facsimile transmission and personal delivery. Ms. Olson indicates that those existing mechanisms would continue to be used for confidential information if routing through the warrant and protection order interfaces is not legally permissible. Ms. Bousquet indicates that CCAP could connect directly to a small number of larger counties, but that incorporation of the WIJIS Workflow Engine also offers the benefits of electronic data transmission capacity to other smaller counties and provides a standardized law enforcement interface.

ANALYSIS

¶ 23.

You ask a number of specific questions about transmission of information through the warrant and protection order interfaces. I have reorganized and restated your questions, as set forth below with my responsive answers.

¶ 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);[3] State ex rel. Bilder v. Delavan Tp., 112 Wis. 2d 539, 551-54, 334 N.W.2d 252 (1983).[4] 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).[5] “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?