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Open Records / Public Access to Court Records: Treatment Records, Generally – NGI Conditional Release Plan; Appellate Procedure: “Aggrieved Party” Right to Appeal

In the matter of State of Wisconsin v. Bryan J. Stanley: La Crosse Tribune v. Circuit Court for La Crosse County, 2012 WI App 42 (recommended for publication); case activity

Open Records / Public Access to Court Records – Treatment Records, Generally 

(Discussion with respect to newspaper’s Open Records request for information contained in NGI conditional release plan:)

¶25      While this is a criminal commitment case following an NGI finding under Wis. Stat. ch. 971, and not a Wis. Stat. ch. 51 civil commitment case, Wis. Stat. § 51.30, by its terms, applies to proceedings such as this one.  Specifically, under the broad terms of § 51.30(7), the confidentiality requirements created under § 51.30 generally apply to “treatment records” in NGI cases.[5]

¶26      Turning now to the confidentiality provision, stated broadly, Wis. Stat. § 51.30 assigns confidential status to records involving, as relevant here, treatment for mental illness.  “Treatment records” are defined as all records “created in the course of providing services to individuals for mental illness” maintained by DHS, its county branches or its staff, or by treatment facilities.[6]  § 51.30(1)(b).  These “treatment records” “shall remain confidential.”[7]  § 51.30(4)(a).

¶27      The meaning of “shall” in Wis. Stat. § 51.30(4)(a) is established.  If the confidentiality provision applies, a court must treat the records as confidential, unless an enumerated exception contained in § 51.30(4)(b) applies, or there is a “circumstance” (the term used in the statute for exceptions) that is comparable to an enumerated exception.  See § 51.30(4); see also Watton v. Hegerty, 2008 WI 74, ¶19 n.13, 311 Wis. 2d 52, 751 N.W.2d 369 (“‘shall’ has a mandatory meaning within § 51.30(4)(a)”); Billy Jo W. v. Metro, 182 Wis. 2d 616, 635-42, 514 N.W.2d 707 (1994) (explaining that courts may “release ch. 51 court records when the requested access fits within one of the statutory exceptions in sec. 51.30(4)(b) or when the requested access is comparable to” an exception).[8]

Records used in court proceedings are presumptively open for inspection, subject to 3 exceptions: statutorily authorized confidentiality; impairment of a constitutional right; administration of justice to safeguard the judicial function, ¶29, citing State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539, 554-57, 334 N.W.2d 252 (1983); this case deals with confidentiality of “treatment records” under § 51.30(1)(b) and (4)(a).

N.B. The newspaper sought release pursuant to ch. 19 “public records” procedure, but the court proceeds under the doctrine of public access to court records under § 59.20(3) and Bilder, ¶31. The newspaper “is entitled to no greater access to records under the” former than the latter.

Open Records / Public Access to Court Records – NGI Conditional Release Plan Confidentiality

Because information contained in Stanley’s NGI conditional release plan (§ 971.17(4)(e)1.) is confidential, it is not subject to release, even though the plan was used during court proceedings.

¶34      For the following reasons, we agree with Stanley that conditional release plans are confidential records under these statutes, and therefore the court correctly applied the law in ordering the plan in this case sealed and in denying the request to unseal it.  However, applying the same statutory provisions, we also conclude that an order of placement is not a treatment record, and therefore the order in this case should not have been sealed, except the portion of the order reflecting Stanley’s placement address and phone number.[13]  The address and phone number reflect information about “residential services” taken from the conditional release plan, and therefore this portion of the order should remain confidential.  We first analyze the conditional release plan, then turn to the placement order.

¶37      Based on these statutory terms, the context, and closely related statutes, it is plain that all such plans are, by statutory definition, “treatment records.”  They are “created in the course of providing services to individuals for mental illness,” and thus should be deemed confidential.  See Wis. Stat. § 51.30(1)(b) (emphasis added).  The term “services” in § 51.30(1)(b) ties directly to use of that term in Wis. Stat. § 971.17(4)(e)1. (“shall prepare a plan that identifies the treatment and services, if any, that the person will receive in the community”) (emphasis added).  We discern no legislative intent to limit the scope of records intended to be protected as confidential under § 51.30(1)(b) through the use of the word “services” instead of the longer phrase “treatment and services,” particularly since the focus of § 51.30(1)(b) is on “treatment records.”  (Emphasis added.)  Conditional release plans are a forward-looking version of the ongoing, day-to-day provision of treatment and services that occurs while the person is still in institutional care.  A plan charts a course for the continuation of treatment and services when there is a shift from the institutional to the community setting.

The court rejects claims that a conditional release plan isn’t a “treatment record” (¶¶39-47), and that the “litigation exception,” § 905.04(4)(c), applies (¶¶48-53); State v. Taylor, 142 Wis. 2d 36, 417 N.W.2d 192 (Ct. App. 1987), discussed.

¶55      As the Tribune’s arguments highlight, the legislature has drawn arguably fine lines in this area.  On the one hand, it has given the circuit court the obligation of making a determination, which includes consideration of dangerousness, in an open, evidentiary hearing, on a petition for conditional release. … On the other hand, when these same topics are addressed in a “treatment record” created for purposes of an ordered conditional release, as here, such records are to be kept confidential, at least with respect to the general public.  However, it is for the legislature to draw such lines and in any case, the concept of maintaining confidentiality of records that are referenced publicly at a court hearing is not unique to this context.  See, e.g., Wis. Stat. § 972.15(1) and (4) (authorizing circuit courts to order presentence investigation reports after a criminal conviction and establishing that such reports are confidential, even though they are created in part so that courts may refer to aspects of their contents in open court at the time of sentencing).

However, the order of placement is subject to disclosure:

¶57      In contrast, we conclude that the order of placement is not a “treatment record” under the plain language of Wis. Stat. § 51.30(1)(b), except for the inclusion of the proposed new residential address for Stanley and a phone number for that address on the order.  As discussed above, treatment records are “created in the course of providing services to individuals for mental illness.”  The circuit court was not in any sense tasked with providing Stanley with a service that could be deemed treatment.  If Stanley means to argue that the order of placement was created in the course of providing services, he would be mistaken.

¶59      As explained above, the conditional release plan is a “treatment record.”  The address and phone number constitute a unit of information taken from the plan that relates to one form of treatment and services that Stanley is to receive, namely “residential services.”   A court attempting to comply with the general rule of transparency for court records required under Bilder, as well as to comply with its exceptions, has authority to redact court records to release all information not excluded from release. … For these reasons, we direct that, on remand, the circuit court shall cause the release to the Tribune of a copy of the original order of placement, but redacting the placement address information, including the phone number.

Appellate Procedure – “Aggrieved Party” – Right to Appeal 

¶13 n. 3:

As reflected in the facts recited in the text of this opinion, the procedural posture of this appeal is unusual.  The Tribune was ultimately not a party to the criminal commitment case, and the only proceeding pending in this court is this appeal from an order entered in the criminal commitment case.  However, even a person or entity not named as a party in an action may be considered “aggrieved,” and therefore entitled to appeal from a judgment, if the person or entity has a substantial interest adverse to the judgment.  See Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217, 418 N.W.2d 14 (Ct. App. 1987).  Neither Stanley, nor the circuit court, which filed a brief in this appeal, take the position that the Tribune may not bring this appeal as the entity that sought specific records and pursued this litigation to the point of a final order, and was denied its request.  Cf. State v. Zien, 2008 WI App 153, ¶¶34-37, 314 Wis. 2d 340, 761 N.W.2d 15 (former attorney general, as private party, not an “aggrieved party” with standing to appeal because she “is not happy with the outcome of the attorney general’s or district attorney’s litigation,” in a mandamus enforcement action brought by the state under Wis. Stat. § 19.37(1)(b)).  As explained below, however, the procedural history of this case precludes the possibility of the Tribune being awarded costs and fees under § 19.37(2), because the Tribune never filed an original mandamus action under § 19.37(1).

The newspaper’s claim to release of records arose within the criminal case, but became its own case in effect. The newspaper is adversely affected by the order denying its claim, therefore has a right to appeal this final order. Thus, the case title is styled, “In the matter of State of Wisconsin v. Bryan J. Stanley: La Crosse Tribune v. Circuit Court,” etc. At a somewhat higher level of generality, this isn’t terribly distinct, if at all, from a sanction order against counsel, see, e.g., In the Matter of Sanctions in: State v. Gregory K. Nielsen, 2011 WI 94. Key points are, the order (assuming it to be a final one) – whatever it happens to be, whether sanction against counsel or refusal to disclose records or something else – is appealable separate and apart from the underlying case within civil (not criminal) rules of appellate procedure.

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