Teague v. Schimel
| Decision Date | 08 June 2017 |
| Docket Number | No. 2014AP2360,2014AP2360 |
| Citation | 2017 WI 56,375 Wis.2d 458,896 N.W.2d 286 |
| Parties | Dennis A. TEAGUE, Plaintiff-Appellant-Petitioner, Linda Colvin and Curtis Williams, Intervening Plaintiffs-Appellants-Petitioners, v. Brad D. SCHIMEL, Walt Neverman, Dennis Fortunato and Brian O'Keefe, Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
For the plaintiffs-appellants-petitioners, there were briefs by Jeffery R. Myer, Sheila Sullivan, and Legal Action of Wisconsin, Inc., Milwaukee, and an oral argument by Jeffery R. Myer.
For the defendants-respondents, there was a brief filed by and an oral argument by Daniel P. Lennington, deputy solicitor general, with whom on the brief was Misha Tseytlin, solicitor general, and Brad D. Schimel, attorney general.
¶1 The Wisconsin Department of Justice ("DOJ") has a policy and practice of creating and disseminating criminal history reports in a manner that, at times, indicates that some individuals who are wholly innocent of any criminal activity have a criminal history. The DOJ is aware its policy and practice can have this effect. There is, however, no procedure by which an affected individual can stop the creation and dissemination of these reports. Petitioners say this occurs because the DOJ does not, before releasing the reports, balance the public's interest in disclosure against the public interest in nondisclosure.1 They also say the DOJ refuses to correct its records pursuant to Wis. Stat. § 19.70 (2015–16),2 which results in the deprivation of their constitutionally-protected due process rights, as well as their right to the equal protection of the laws.3
¶2 The DOJ maintains a massive, and growing, centralized criminal history database that contains and tracks information about people who have come into contact with Wisconsin's criminal justice system (the "Database"). According to the DOJ's website, the Database "contains detailed information of arrests, arrest charges, prosecution, court findings, sentences, and state correctional system admissions and releases."4 The Database "is an accumulation of information submitted by Wisconsin law enforcement agencies, prosecutors, courts, and the Wisconsin Department of Corrections as required by applicable statutes." The DOJ has a statutory mandate to gather, store, and curate this information: "[The DOJ] shall: (a) Obtain and file fingerprints, descriptions, photographs and any other available identifying data on persons who have been arrested or taken into custody in this state...." Wis. Stat. § 165.83(2).
¶3 As of July 11, 2016, the Database contained criminal records on almost 1.5 million people. Each record is keyed to an individual's fingerprint. The record also contains a "master name," which is the name the person gave upon his or her first contact with the criminal justice system. Any name thereafter associated with that person is listed as an alias on the record. The record may also contain a picture of the individual, a physical description, any birth dates supplied by the subject, and known residences. We will refer to all the information associated with a record as the "Personal Information."
¶4 The Database has many uses critical to the security of Wisconsin's residents, one of which is assisting members of the public in discovering whether a given individual has a criminal history. Such knowledge can be valuable to, for example, employers, organizations serving children (or other vulnerable populations), landlords, and others.5 To determine whether an individual has such a history, a person submits a request for a criminal history record search to the DOJ, which can be done by mail or online through the Wisconsin Online Record Check System ("WORCS").
¶5 The DOJ's records system can perform two types of searches for criminal histories. The first is fingerprint-based and requires submission of a full set of fingerprints for the subject in whom the requester is interested. The second type is name-based and requires only the subject's first and last name and date of birth (although additional Personal Information can be submitted as well). The DOJ's website describes name-based searches as "quicker, cheaper, and easier than fingerprint-based searches...."6
¶6 Although a person may request a criminal history check online, the process is not entirely automated. The DOJ's computer system compares the information provided by the requester against the nearly 1.5 million records in the Database. With respect to name-based searches, the system employs a sophisticated algorithm to score how closely the provided information relates to the records in the Data base. If the score falls below a certain threshold, the DOJ sends the requester a "no record" response, indicating the Data base contains no information about the subject of the inquiry. If the score is sufficiently high, the identified records are automatically sent to the requester. If the score falls in between, then one of nineteen DOJ employees must make a judgment as to whether the search has identified information potentially responsive to the request. We will refer to the DOJ's name-based record search process as the "Criminal History Search."
¶7 The information the DOJ provides to the requester in response to a Criminal History Search request is unreliable, something the DOJ readily admits. Its website warns that "[b]ecause name-based searches are based on non-unique identifying data, such as name and date of birth, they are less reliable than fingerprint-based checks." In the webpage entitled "Background Check & Criminal History Information," the DOJ acknowledges that "[i]n some cases, a name-based check may pull up a criminal record that does not belong to the subject of the search."
¶8 The WORCS training material also notes the unreliability of a Criminal History Search. Part of that material illustrates how to request a Criminal History Search with a series of captured screen images. Towards the end of a typical transaction, after the person has entered information related to the subject and paid the required fee, a screen appears with certain disclaimers displayed in a small font, amongst which is the following:
¶9 The DOJ's instructions on how to read a criminal record also testify to the unreliability of the information returned by the search.8 They admonish the requester "not just [to] assume that a criminal history record pertains to the person whose identifying information was submitted to be searched," and encourage the requester to "carefully read the entire Wisconsin criminal history record response in order to determine whether the record returned pertains to the person whose identifying information was submitted to be searched." The instructions additionally state that if the subject's name is different from the "Master Name" on the record, then the record "may belong to someone other than the person whose name and other identifying data you submitted for searching." The instructions also say that even if the name submitted is the same as the "Master Name" on the record, the response "may belong to someone other than the person whose name and other identifying data you submitted for searching," because the " 'Master Name' is the name attached to the initial fingerprint submission to [the Crime Information Bureau] that is associated with the reported criminal history, and may have been an alias name."
¶10 Notwithstanding the oft-noted unreliability of Criminal History Search requests, the DOJ receives over 900,000 such requests a year from individuals and organizations outside the law enforcement community.
¶11 This case is not, however, about any of the nearly 1.5 million people in the DOJ's Database. It is about those who are not. Most immediately, it is about Dennis A. Teague and two others who the Database and its algorithm suggest may have criminal histories. Happily, they do not. Unhappily, they have been unable to get the DOJ's Criminal History Search to stop indicating otherwise.
¶12 Mr. Teague's difficulties started when his cousin (an individual to whom we will refer as "ATP") stole his identity (according to Mr. Teague).9 As a result, the name "Dennis Antonio Teague" was added to ATP's record in the Database as an alias. Since that time, anyone using Mr. Teague's name and birthdate to request a Criminal History Search will receive ATP's criminal history report in response. And this occurs even though the birthdate ATP gave for his "Dennis Antonio Teague" alias is different from Mr. Teague's.
¶13 The DOJ recognizes the entirely predictable adverse consequences that come from giving a requester a criminal history report belonging to...
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