Supreme court may decide whether newspaper can get conditional release records

By Joe Forward, Legal Writer, State Bar of Wisconsin

Oct. 21, 2011 – A Wisconsin appeals court has asked the Wisconsin Supreme Court to decide whether a conditional release plan concerning an institutionalized person is confidential and thereby exempt from Wisconsin’s open records law.

The La Crosse Tribune tried to obtain the conditional release records regarding Bryan Stanley, who was institutionalized for killing three people in an Onalaska church in 1985, but found appropriate for conditional release in 2005. He was found not guilty by reason of mental disease or defect.

The circuit court sealed Stanley’s conditional release plan as a confidential treatment record under Wis. Stat. section 51.30(1)(b) and (4), which provides that all “treatment records” must remain confidential without a person’s consent. It defines treatment records to include records created while providing mental health services.

A circuit court clerk denied the La Crosse Tribunes’ initial request that Stanley’s conditional release plan be unsealed and released. After a hearing in circuit court, the judge also denied the request, concluding that a conditional release plan is a “treatment record” protected by section 51.30.

The newspaper appealed, arguing the conditional release plans are not protected treatment records, and seeks costs, fees, and damages for the circuit court judge’s alleged violation of the open records law under section 19.37(2), which requires an “authority” to timely respond to a request for records.

The state argues that a request to unseal records is not an open records action.

The District IV Wisconsin Court of Appeals has now certified the case – La Crosse Tribune v. Circuit Court for La Crosse County, 2010AP3120 (Oct. 20, 2011) – to the supreme court.

“The outcome of the disputes in this case will affect defendants subject to institutional care following a finding of not guilty by reason of mental disease or defect, members of the media and the public seeking documents under the Open Records Law, and circuit courts faced with these issues,” the court wrote.

The supreme court is asked to clarify the proper mechanism for an open records requestor when seeking documents under seal by a circuit court, and whether conditional release plans are exempt from the open records law as confidential treatment records. “In sum, the issues in this case require a balancing of the public’s interests of ensuring the openness and transparency of government and maintaining the confidentiality of mental health records,” the appeals court wrote.