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 activityOpen 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.

And we acknowledge that the City here was operating with the best of intentions—trying to protect the safety of the threatened individuals. But we conclude that our decision in Schuster does not create an exception to WIS. STAT. § 51.30(4) and accordingly, we reverse the trial court’s contrary rulingDid the police have a duty to warn? That issue wasn’t briefed and the court doesn’t reach it, ¶26.

It also claims release of the information might violate either Wisconsin or federal law regarding patient privacy. Taking all the bait the state threw at it, the court lists the issues presented as follows:Did the Court of Appeals erroneously exercise its discretion in denying the State’s petition for leave to appeal because the order subjects DOC and the researchers to substantial and irreparable injury and raises substantial issues of general importance in the administration of justice, because the circuit court had no authority – pursuant to Wis. Stat. § 980.036(2)(h), § 980.036(2)(j), § 980.036(5), or Brady v. Maryland – to order DOC to disclose this data to the defense for use in Jendusa’s sexually-violent person commitment trial?Does release of the information in the database sought by the respondent violate either Wisconsin or federal law, see e.g., Wis. Stat. § 51.30; Wis. Stat. §§ 146.81–83; Wis. Admin. Code ch. DHS 92; 42 C.F.R. ch. 1(A)2, 2a; 42 C.F.R. Part 2; 45 C.F.R. Subt. A, Subch. A., pt. 46 (protection of human subjects); 45 C.F.R. Subt. A, Subch. C, pt. 164 (HIPPA)?Does an entity like the Department of Corrections fall under the umbrella of “the state” for the purposes of the Wis. Stat. Ch. 980 discovery statutes?Does the circuit court have authority to order a non-investigative agency to provide a defendant with data that does not meet any of the discovery provisions in Wis. Stat. Ch. 980?Does Brady v. Maryland, 373 U.S. 83 (1963), impose any duty on a prosecutor in sexually violent person commitment trials?While most obviously relevant to the ch. 980 litigation, the decision in this case will be of interest to criminal law practitioners generally because release (or suppression, as the state seeks) of this data could also affect assessments of risk at sentencing in sex offense cases.

32. As a general matter, and for purposes of illustrating the triage that is required, let’s assume that in many situations, the Wisconsin law is more restrictive or protective of confidentiality than HIPAA.In addition to Wisconsin’s confidentiality restrictions that apply to patient health information, special requirements pertain to mental health treatment records under Wisconsin Statutes 51.30 and applicable administrative rules at DHS 92. The protections applicable to mental health treatment records are much more restrictive than HIPAA or state law covering general patient records.

A similarly worded provision, § 51.30(3), was deemed informed and therefore limited by enumerated exceptions in another subsection, In re Mental Condition of Billy Jo W., 182 Wis. 2d 616, 635, 514 N.W.2d 707 (1994). However, the “method of analysis of Wis. Stat. § 51.30 in Billy Jo W. is not applicable to Wis. Stat. § 146.82,” Crawford v. Care Concepts, 2001 WI 45, ¶33, 243 Wis. 2d 119, 625 N.W.2d 876 (further holding, ¶2, that § 146.82 allows release of nonprivileged information). Crawford went on to cite with approval (¶38) the holding in Ambrose v. General Casualty Co., 156 Wis. 2d 306, 456 N.W.2d 642 (Ct. App. 1990), that an order under § 146.82(1) “was not ‘lawful’ because it was beyond the court’s discretionary authority under § 804.10(2).”

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.