Two things have happened recently in the media that has my “public right to know” side of me conflicted with my “individual right to privacy” and seem ethically improper if not illegal. First, the Isthmus posted the pictures and birth dates of people who were “banned” from various businesses in the W. Washington area and depending upon how you read it and what you read, made it appear that they were banned from an entire area. Second, the Wisconsin State Journal obtained a copy of a confidential treatment plan for a mental health patient and posted it on line.
With the Isthmus situation, I understand that this information was a public record and available, but it doesn’t mean they had to publish it “as is”. I argued with the staff there that they should not post that information. My concerns were as follows:
- Because they posted the picture and the birth date, it makes it easy to steal the identity of these people. I won’t share how, but that information makes it possible for someone to get the social security number of the person in some circumstances.
- These folks have not had their due process. An individual business owner decided to ban these folks and the police department put them on a list. They have not been through a court process or been determined guilty by a court of law. They have not had a right to defend themselves.
- I have, once again, confidential information that at least one of them is on track to getting their lives together and is working hard to get their family back. Posting these pictures could have a variety of effects on that person and their hard work.
- How long are these pictures going to be posted? Do they ever get taken down?
- And finally, do the police ever remove people from that list? How could you appeal your name being on that list. If someone could get their name off the list, will the Isthmus remove their photos, names and birth dates from that post? Especially if there was information posted in error?
The Isthmus decided to go forward and post the pictures and birth dates anyways. While they may have had a right to do it, ethically, I think they should have weighed the pros and cons and at least removed the birth dates.
The Wisconsin State Journal situation is even more mind boggling to me. Last night they posted the confidential treatment plan for Mark Staskal. I don’t know how they obtained a copy. I asked the council staff to find whatever information could be released and was told that the court could not release it because it is confidential. (And that I could get a copy of the court transcript for $140.) So, as far as I can tell, they don’t have the legal right to have or release this information. The statement that they released says:
Confidentiality Statement: This document contains confidential information relating to the mental health diagnosis and treatment of a person committed to the Wisconsin Department of Health and Family Service (DHFS) after being found not guilty due to mental disease or defect pursuant to ss 971, Wis. Stats. It is protected pursuant to ss 55.30, Wis Stats., and HFS 92 Wis. Administrative Code. Distribution is limited to those who have statutory access or who are ordered by the court to have access. [Note, I think that is supposed to be 51.30. Specifically I was told the information I have is confidential under 51.30(4). According to an on line search Wis. Stats 55.30 does not exist.]
I’m pretty sure they don’t have statutory access to this information. And I as far as I know, the court only ordered the Sheriff and Madison Police to be notified. What is even more confusing to me is that I have felt boxed in because I have confidential information I can’t share with the public that might make them feel more at ease. However, I haven’t shared that information because I believe in and understand the laws that protect a mental health patients right to privacy and I could be sued as well as be criminally prosecuted and fined up to $25,000 and put in jail up to 9 months.
For the Wisconsin State Journal, the stakes are even higher. Because they can make money off the posting of this information, they have higher penalties. Wis. Stat. 51.30(10) has penalties as follows:
(bm) Whoever intentionally discloses confidential information under this section, knowing that the information is confidential, and discloses the information for pecuniary gain may be fined not more than $100,000 or imprisoned not more than 3 years and 6 months, or both.
If they have found away around these laws, I’m curious what it is. Perhaps they think the person from whom they got the information would be the one to be charged. Either way, if I was the editor that made the decision to post this information, I’d be a little nervous over there this morning. Even if they found a way around this law, where are their ethics?
