Feb. 21, 2018 – One of the first major actions that Randy Koschnick will take as newly appointed Director of State Courts is implementing recommendations on the length of time certain case information is publicly available online, even if a case is dismissed.

Koschnick oversees the court system’s Consolidated Court Automation Programs (CCAP), which includes administrative authority over basic case information displayed online through the Wisconsin Circuit Court Access (WCCA) website.

A WCCA Oversight Committee – consisting of judges, court clerks, law enforcement, prosecutors and defense attorneys, legislators, journalists, and administrators – studied WCCA issues for two years and released recommendations in a final report last year.

Koschnick, a Jefferson County Circuit Court judge for 18 years (1999-2017), assumed the new director role last August and recently released an action plan to implement many of the recommendations, although he made some changes to the committee’s original recommendations for uniformity and ease of administration.

Under the plan, misdemeanor and felony cases will display on the WCCA website for two years if the case was dismissed or the defendant was acquitted. That is, after two years from the date of disposition, the WCCA record will be removed.

Judge Randy Koschnick, Director of State Courts, speaks to the State Bar Board of Governors during its Feb. 9 meeting in Madison. Koschnick discussed the Circuit Court Access Program (CCAP) and other state court administrative topics. For more from the board meeting, click here.

The two-year display period will also apply to small claims cases that were dismissed, such as eviction actions, and injunction petitions relating to domestic abuse, child abuse, individuals at risk, and harassment that were dismissed or denied.

Koschnick said the committee, established under previous Director Denis Moran, represents stakeholders on all sides of the online court records issue.

“We need to keep up with new requirements and expectations, as well as privacy concerns and consider those factors properly,” said Koschnick. “The world of information technology is constantly evolving.”

Changes are expected to be fully implemented by the end of March, and will apply retroactively. In other words, someone with a misdemeanor or felony charge that was dismissed more than two years ago will see the record removed from the WCCA.

Shorter Display Periods

Currently, the display periods for these cases is much longer because they are tied to the retention periods for court records set forth under Supreme Court Rule (SCR) 72, which governs the length of time court clerks must keep a court records on file.

For instance, misdemeanor court records, which include a history and index of proceedings commenced as misdemeanors, must be retained for 20 years following entry of final judgment. For most felonies, the retention period is 50 years.

That means the case information stays on WCCA, open for inspection by anyone, for 20-plus years, even if the charges were dismissed or the person was acquitted.

But WCCA display periods are not required, by rule, to be linked to retention periods. The State Courts Director has administrative authority over what is displayed on WCCA. Koschnick said the changes were necessary to address various concerns.

According to the WCCA Oversight Committee’s final report, the committee “expressed its concern that individuals are subject to discriminatory or otherwise adverse treatment if potential employers, landlords, and members of the general public are able to view records of their court cases,” especially in criminal cases.

Shorter display periods for certain cases balance the public’s right to access public court records, the committee noted, “with concerns of potential harm to individuals whose dismissed cases remain on display on WCCA for an extended period of time.”

The committee decided that these case types have the most potential to be misused through discrimination or create hardships and burdens based on stigmatization.

Ray Dall’Osto, a long-time criminal defense attorney at Gimbel Reilly Guerin & Brown, who served as a member of the WCCA Oversight Committee, said this change was long overdue. “Adverse online information can be a life sentence for people who did no wrong, or were found not guilty or had the charges dismissed,” he said. “Their opportunity for employment, housing and credit can be and is severely impacted when people look on CCAP and see this information, even when a case is dismissed.”

“I think this and other changes recommended to the State Courts Director will go a long way towards better preserving the balance between the public’s right to know this information and a person’s right to privacy, to be free from inaccurate information and the inappropriate discrimination that can lead from utilizing CCAP as a universal background check,” Dall’Osto said. “That was not CCAP’s original purpose and these modest changes are necessary to adapt to the current realities of the internet today.”

The court record does not go away because the retention periods still applies to a dismissal. Thus, those court records will still be available, just not available on WCCA.

Additionally, a dismissed charge will still appear if attached to other charges in the same case that were not dismissed. Thus, if someone pled guilty to a felony and a misdemeanor charge was dismissed, the misdemeanor charge will still appear.

Koschnick will also seek a change to the court record retention rules, which currently apply based on the crime charged when the case was “commenced.” Koschnick said the retention period should be based on charges at disposition.

“Frequently, cases end up differently than originally filed,” Koschnick said. “So, if it’s filed as a felony but gets reduced to a misdemeanor for disposition, we would treat that as a misdemeanor for purposes of WCCA display and retention. What a charge starts out as doesn’t really matter. The charge at disposition is what matters.”

Long-Awaited Change

Koschnick, who helped spearhead mandatory e-filing in Wisconsin, is making changes to WCCA court record displays that the State Bar of Wisconsin has long pursued. Almost a decade ago, the State Bar filed a petition to change rules on expungement.

As part of that petition, the State Bar proposed a rule that would allow circuit courts to expressly order that records be sealed (not accessible on WCCA) when a case is dismissed or a someone is acquitted. The petition remained opened for years.

In 2016, the Wisconsin Supreme Court revived discussion but dismissed the petition, concluding expungement was a substantive issue for the legislature. But various members of the court expressed a desire to work toward a solution on WCCA records in order to protect individuals who may experience long-term discrimination or stigma.

After several years of work by the WCCA Oversight Committee and Koschnick’s action plan as the new Director of State Courts, a solution will be in place by the end of March.