The following statement written by James Friedman, legal counsel for the Wisconsin Newspaper Association, was originally published on Nov. 9, 2020. It outlines the association’s position on the impact of Marsy’s Law on public records. In light of recent citations of the constitutional amendment by police agencies in effort to protect officers who use force, we are resharing it.
In April of this year, the Wisconsin electorate approved Marsy’s Law, which had passed the Wisconsin Legislature in two consecutive sessions. Marsy’s Law, which amends Article I, section 9m of the Wisconsin Constitution, provides various rights to crime victims.
Recently, at least one public record custodian has indicated that he believes Marsy’s Law restricts access to certain information about crime victims contained in public records.
The Wisconsin Newspaper Association strongly disagrees. Based on the plain language of Marsy’s Law, the legislative history in Wisconsin, and court interpretations of privacy rights and public records, it is quite clear that Marsy’s Law has no impact on the public’s right of access to government records.
Law doesn’t include any reference to records
The version of Marsy’s Law approved in Wisconsin, which lists 17 rights for crime victims, does not contain a single reference to a restriction or limitation on access to information in public records. A record custodian need look no further to confirm the Legislature and the voters did not change access to government records when they amended the Wisconsin Constitution in April.
The legislative history of Marsy’s Law in Wisconsin supports this conclusion. The original draft of Marsy’s Law submitted to the Legislature for review, which was based on a version passed in a few other states, included a separate provision concerning records with crime victim information. Pursuant to section 9m(2)(c) of the proposal, crime victims would have had the right to “have information or records protected that could be used to locate or harass the victim or that could disclose confidential or privileged information of the victim.”
Based on concerns expressed by the news media, including the WNA, however, the legislature removed that provision from the bill before the Legislature voted on it. Hence, the version approved by the Legislature and Wisconsin’s voters, as noted above, contains no reference to limiting access to information in public records. That is a clear indication of the will of the people.
With no specific reference in Marsy’s Law to restrictions on access to public records, the custodian referenced above has indicated he believes the general right to privacy in Marsy’s Law requires custodians to redact references to victims in records before providing the records to the public. But a crime victim’s right to privacy already was protected by the Wisconsin Constitution before Marsy’s Law was approved. Pursuant to Article I, section 9m (before Marsy’s Law): “This state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy.” In other words, Marsy’s Law did not add or expand privacy rights for crime victims.
Statutory and constitutional privacy rights don’t trump the public’s right to know
Furthermore, the Wisconsin Legislature and courts here and elsewhere consistently have concluded that statutory and constitutional privacy rights do not trump the public’s right of access to government records.
“It is not an invasion of privacy to communicate any information available to the public as a matter of public record.” Wis. Stat. § 995.50. The Wisconsin Supreme confirmed that “the legislature has determined that individuals have no right of privacy in materials contained in public records that are open to the public generally.” Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 432, 279 N.W.2d 179 (1979).
As to constitutional privacy rights, a Wisconsin federal court held, “no court has found that an individual has a fundamental privacy right in information that is a matter of the public record.” Taylor v. Miller, 853 F. Supp. 305, 307 (W.D. Wis. 1994). Similarly, the U.S. Supreme Court held, “thus even the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record. The conclusion is compelling when viewed in terms of the First and Fourteenth Amendments and in light of the public interest in a vigorous press.” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494–95 (1975).
Finally, contrary to the position of the record custodian noted above, privacy rights simply do not apply to corporations. The U.S. Supreme Court reached that conclusion when reviewing a privacy defense to a request under FOIA, the federal equivalent of the Wisconsin Public Records Law. “The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT & T will not take it personally.” FCC v. AT & T Inc., 562 U.S. 397, 409–10 (2011).
Marsy’s Law simply has no impact on the public’s right to access government records in Wisconsin.
