WisBar News: Police department cannot invoke Schuster exception to privacy rule, appeals court holds:

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  • Police department cannot invoke Schuster exception to privacy rule, appeals court holds

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    Police dept cannot invoke SchusterBy Joe org jforward wisbar Forward, Legal Writer, State Bar of Wisconsin

    June 18, 2010 – The Wauwatosa Police Department violated statutory privacy law when it released a “statement of emergency detention” concerning a deputy who worked for the sheriff’s office in Milwaukee County, a Wisconsin appeals court recently held.

    In Kuhtz v. City of Wauwatosa, 2009AP1924 (June 15, 2010), the appeals court reversed a circuit court order granting summary judgment to the City of Wauwatosa, which was sued after Wauwatosa police detained Scott Kuhtz, a deputy sheriff in Milwaukee County.

    In 2005, Kuhtz’s therapist phoned Wauwatosa police to report that Kuhtz stated having thoughts of suicide and killing co-workers in a treatment session. Police officers transported Kuhtz to a mental health facility for emergency detention.

    Wauwatosa police later faxed Kuhtz’s employer – the Milwaukee County sheriff’s office – an emergency detention statement and a police incident report. Both the incident report and the emergency detention statement contained the same information.

    Kuhtz was later suspended. He and the Milwaukee Deputy Sheriff’s Association filed suit.

    Exception to treatment-record rule?

    Wis. Stat. section 51.30(4) prohibits the release of “treatment records” without written consent. Emergency detention statements are considered privileged treatment records.

    The city argued that under Schuster v. Altenberg, 144 Wis. 2d 223, 424 N.W.2d 159 (1988), “the police department had a duty to warn the persons threatened and that duty created an exception to the statute.” Schuster dealt with disclosure by a psychiatrist.

    The appeals court disagreed. Schuster does not impose a duty to warn on a police department, the court explained. The court also noted that an appeals court is not a policy-making court and cannot “add exceptions to a statutory privilege under the aegis of public policy.”

    In addition, a police department cannot circumvent the privacy statute by releasing a police incident report that contains the same information as an emergency detention statement, the court concluded.