Dennis A. Teague has no criminal record. But somebody who once used his name, and a date of birth similar to his, does. The ironic result is that Teague, a likely victim of identity theft, is now suggested to be a criminal by the Department of Justice’s criminal history database. Teague, understandably, objects, but the court of appeals concludes it has no power to fix the problem.
The database associates each criminal record with a set of fingerprints, but when a member of the public requests a record, he or she need only provide a name and a date of birth. (¶¶6-8). So a requester–say a potential landlord or employer–who submits Teague’s name and birth date will receive a response indicating that a person who has used Teague’s name as an alias has a criminal record. (¶15). The obvious problem for Teague is that the landlord or employer may well suspect that he, the real Teague, is just that same impostor striking again. For this reason, those in Teague’s position may obtain “innocence letters” from the department, which they can show to whomever they wish to prove they are not the person with the record. (¶¶12-14). But though the department keeps track of the innocence letters it issues, it does not incorporate or refer to them in the database, so a requester could still easily be misled about Teague’s past, particularly if the requester neglected to consult with Teague and took the record at face value. (¶¶14-15).
Teague challenges the Department’s practices citing five bodies of law: the public records law; the statutory procedure for correcting or supplementing records; equal protection; and substantive and procedural due process. The court rejects each in turn.
The problem with the public records claim is Wis. Stat. § 19.356(1), which, the court holds, denies “judicial review” of any agency decision to release (as opposed to withhold) public records with certain exceptions not pertinent. (¶¶24-42). As to the Wis. Stat. § 19.70 procedure for correction or supplementation, the lead opinion–more on that later–holds these remedies available only where a record is claimed to be inaccurate, not merely ambiguous and potentially misleading. (¶¶43-53). Teague’s equal protection claim is that the database scheme irrationally discriminates between innocent persons whose identifying information is not associated with criminal records and those, like him, who are subject to such associations. (¶55). The court responds that DOJ’s providing alias information has a rational basis because it could lead to the detection of future frauds by those who have used false names in the past. (¶60). As to both substantive and procedural due process, the court faults Teague for failing to cite authority showing a protected constitutional interest. (¶¶63-69).
And then, thirty-five pages in, things get interesting. A concurrence by Judge Higginbotham faults the lead opinion for addressing Teague’s Wis. Stat. § 19.70 claim at all, given what it says was its insufficient development. (¶¶71-77). In fact this point is joined by the second concurrence, by Judge Sherman, rendering the lead opinion’s involved analysis of § 19.70 a non-binding minority position. (¶79).
But that’s not really what Judge Sherman came here to say. Though he agrees there’s no court remedy for what’s happening to Teague, he can’t help but think maybe it still shouldn’t be happening:
While this court may not be in a position to provide these citizens with a remedy under this fact situation, two things are clear: 1. The government does not deny that it is in a position to remedy this situation with very little difficulty or expense; and 2. The government provides no governmental reason why it chooses not to do so.
(¶80). After positing that it would be quite easy for the Department to provide the content of innocence letters to requesters, he continues:
What is most troubling to me about this case is that it is here at all. Just because one can do something does not mean that one ought to. Irrespective of this court’s ability to resolve the problem, why does the authority not resolve the problem itself? The authority has suggested no governmental reason not to do so. A citizen of this state is being harmed by a practice of the government that has no apparent governmental purpose and that would be easy and inexpensive to correct, yet the only response of the authority is that it will continue to do so because there is no law that compels it to do otherwise. In essence, we are doing this to you because we can. That is the response of a bully and not an appropriate response of the government of a democracy.