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La Crosse Tribune v. Circuit Court for La Crosse County, 2010AP3120, District 4, 10/20/11

court of appeals certification; for Bryan Stanley: Kristin M. Kerschensteiner; case activity

Open Records – Sealed Court File – NGI Condition Release Plan 

The appeal raises two significant issues at the intersection of Wisconsin’s Open Records Law and Mental Health Act, one procedural and one substantive. The procedural issue involves the proper mechanism to pursue an open records request for documents that have been placed under seal by the circuit court.  The procedural issue also involves whether an open records requester can recover costs, fees, and damages when it is alleged that a circuit court judge has not timely responded to requests for documents the court has placed under seal.  The substantive issue is whether a conditional release plan for treatment and services under Wis. Stat. § 971.17(4)(e) is a confidential treatment record under Wis. Stat. § 51.30(1)(b) and (4) and thus exempt from disclosure under Wisconsin’s Open Records Law.

It appears unclear how an open records requester is to proceed when seeking documents under seal by order of the circuit court.  It is also unclear, under the statutes and current case law, whether the court of appeals has authority to award costs and fees against a circuit court judge for violation of the Open Records Law, either under Wis. Stat. § 19.37(2)(a) or under our supervisory authority over the circuit courts. …  Because the application of the Open Records Law to requests to clerks of court and circuit court judges to release documents under seal will impact clerks, courts, litigants, and the public, we certify this issue to the supreme court.

The next issue we certify is whether a conditional release plan under Wis. Stat. § 971.17(4)(e) is a confidential treatment record under Wis. Stat.§ 51.30(1)(b) and (4).  Under the Mental Health Act, “treatment records” are confidential and privileged to the subject individual.  …

It appears unclear whether a conditional release plan under Wis. Stat. ch. 971 is a confidential treatment record under the Mental Health Act.  Moreover, it appears unclear whether, even if the conditional release plan is a confidential treatment record, the conditional release plan is subject to the evidentiary exclusion underWis. Stat. § 905.04 after a court determines that an individual is appropriate for conditional release.  A determination of this issue will have a significant impact on individuals subject to commitment under ch. 971, as well as medical professionals, courts, litigants, and the public.  It is therefore best addressed to the supreme court.

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