Judicial privacy law

Wisconsin should pause implementation of a law that dictates how government and private businesses keep, use and share identifying information for “judicial officers” until there is more legal clarity and direction on its implementation and potential enforcement, particularly in regard to business records.

Last year, Wisconsin was one of a number of states to approve the so-called Judicial Privacy Act also called Daniel’s Law. The law was a knee jerk reaction to the July 2020 fatal shooting of 20-year-old Daniel Anderl, the son of U.S. District Court Judge Esther Salas. The shooter in that tragedy posed as a delivery person and had compiled a dossier on the judge including information from real estate records to locate the judge’s residence.

The Wisconsin version of the law was signed into law last March and it is set to go into effect on April 1.

Like many well-intentioned efforts, the Wisconsin Act 235, offers a seemingly simple solution to a problem. The law allows “judicial officers” and their family members to file a formal request and have their personal identifying information redacted from online records.

The protected information includes: the home address; home or personal mobile telephone number; personal email address; Social Security number, driver’s license number, federal tax identification number, or state tax identification number; bank account or credit or debit card information (except as required under Wis. Stat. Ch. 11); License plate number or other unique identifiers of a vehicle owned, leased or regularly used by a judicial officer or an immediate family member; the identification of children under the age of 18 of a judicial officer or an immediate family member; full date of birth and marital status.

The privacy protections created by Act 235 apply to “judicial officers,” which are defined as current and former Supreme Court justices; court of appeals, circuit court, municipal and tribal judges; reserve judges; and circuit, supplemental and municipal court commissioners.

At the local level, there are still more questions than answers in regard to how the law could impact how land records are stored and accessed by members of the public. No matter how noble or altruistic the purpose, establishing a privileged class of individuals not subject to public records laws is inherently problematic given Wisconsin’s constitutional obligation for openness and disclosure in public records.

In a December 12 article for the State Cartographer’s Office, Howard Veregin (State Cartographer’s Office) & Jaime Martindale (Robinson Map Library) wrote: “Providing property record information to the public and other stakeholders is an important governmental function, both to ensure the public’s right to know and as an essential service to citizens. A potential negative consequence of the new legislation is the incremental erosion over time of the public’s access to such information. While it is important to comply with the terms of the new law, loss of the ability to determine and trace property ownership in Wisconsin would have negative implications for the preservation of an accurate historical record of land transfers, management practices, legal issues, and local or family histories. It could hinder the public’s ability to obtain information needed for research or other purposes.”

Even more problematic and potentially costly will be the law’s unknown impacts on private businesses. There are many legitimate business reasons for the protected information to be retained and even shared between one business and another such as a contractor doing warranty work on someone’s residence or an insurance claims inspector needing the make and license plate of a vehicle to assess the damage of a fender bender.

There is also the additionally problematic concern about things such as online databases of published newspapers which may contain any of this information. Will online newspaper archives be subject to forced redaction under the law because of a decade-old birthday greeting ad or crash report?

It is not hard to imagine, over-aggressive enforcement as a punitive political tool, especially when there is the inevitable expansion of the law that has been seen in other states where it serves as a shield to all manner of public officials.

The intent of the well-meaning law is clear. No one wants a repeat of the tragic death of Daniel Anderl or place anyone in harm’s way. However, the law as written is flawed and it would be better to delay its implementation to codify protections to public records access and to protect businesses including news media from facing costly litigation for normal and legitimate business practices.

The Central Wisconsin Publications Editorial Board consists of publisher Kris O’Leary and editor Brian Wilson.