Madison Police Department

Noble Wray, Chief of Police City-County Building 211 S. Carroll Street Madison, Wisconsin 53703-3303 PH 608 266 4022 TTY/Textnet 866 275 6529 police@cityofmadison.com www.cityofmadison.com/police

March 1, 2013
All Requestors of Records related to Officer Heimsness and/or the Officer Involved Shooting To Whom It May Concern: The Madison Police Department has received many requests for public records related to Officer Heimsness and the recent officer involved shooting. Responding to the unique nature of each request could delay the processing of all requests. Therefore, the Office of the City Attorney advised the Department that we could expedite our responses by consolidating all of these requests and provide each requestor with the same responsive records. Because of this, requestors could be receiving more records than they specifically requested. Therefore, because of this unique situation, we are for this one instance, waiving all fees related to responding to these records requests. The following is a comprehensive list of the records that have been requested: Any and all records in the shooting death of Paul Heenan and subsequent police investigation.any and all police reports and videotapes of interviews with Kevin OMalley; Any and all documents related to the Heimsness/Heenan case from November 9, 2012 until January 09, 2013printed, electronic, photographic, electronic mail; Officer Heimsness Employee File, Training File, IA file, dash cam videos and audio recordings of officers at the scene of the Heenan case; Investigation and incident records for Officer Heimsness 2001 incident involving shooting out the tires of a car, the 2006 incident with Mr. Bauer and any and all reports involving Officer Heimsness and the use of force; Video and audio from the cameras of Officer Stacy Troumbly and Officer Stephen Heimsness patrol cars; Audio from Troumbly and Heimsness lapel microphones and any other video or audio of the shooting incident during the above stated time period; The disciplinary and training files of Officer Heimsness during his employment with the Madison Police Department; All documents and communications regarding the investigation concerning the death of Paul Heenan which occurred on or about November 9, 2012.all reports, correspondence, autopsy (including toxicology reports and medical examiners report), photographs, witness statements, notes of telephone calls, texts or other social media, memoranda, video or audio recordings and email of which pertain in any way to Mr. Heenans death or the investigation into the circumstances surrounding his death.

These requests resulted in the collection and review of hundreds of pages of responsive records as they existed as of January 9, 2013. Under the Wisconsin Public Records Laws, records custodians must carefully weigh the competing public interests involved when deciding to release any record in their possession. Custodians begin with a presumption of complete public access to such records. However, custodians must consider whether statutes or case law limit the release of such records and if not, then custodians must consider whether inspection of the record could result in harm to the public interest that

outweighs the presumed benefits of such inspection. When such harm substantially outweighs the benefits of public inspection, such records or portions thereof, must remain confidential. Therefore, I am prepared to provide some of the responsive records in their entirety, some with redactions, and I am withholding others. The following records are provided in their entirety: Officer Heimsness Training Records Officer Heimsness Professional Standards & Internal Affairs (PS&IA) summary sheet MDC messages Nov 9, 2012 to Jan 9, 2013 using the following word search parameters; Heimsness, Heenan, 320242, and shooting

These are the records that will be provided with redactions/partial denials: Officer Heimsness Personnel File MPD case 01-71140 (Police investigation of the Lake Street Ramp shooting) PS&IA Summary and Investigation 01-16 (Lake Street Ramp Shooting incident) MPD case 06-154206 (Police investigation of the State Street Brats incident) PS&IA Summary 07-01 (State Street Brats incident)(Please note that this record was recently re-released on Jan 9, 2013) MPD case 12-320242 (Police investigation of the Officer involved shooting) PS&IA Internal Affairs Summary and Investigation 12-54 (Officer involved shooting) (Please note that this record was recently re-released on Jan 9, 2013) Emails with the requestors approval of the following parameters: Nov 9, 2012 though Jan 9, 2013; Word search Heimsness, Heenan, Officer Involved Shooting, 12-320242 Emails to or from Carl Gloede, Michelle Riesterer, Greg Esser, Noble Wray, John Davenport, Randy Gaber, Dan Olivas, Steve Heimsness, Dan Frei, Joey Skenandore, Linda Kosovac. Phone call notes or correspondence received by Chief Wray

These are the records that will be denied: PS&IA files for any complaint against Police Officer Heimsness that resulted in exonerated, unfounded, not sustained, or no finding as well as one sustained minor rule violation.

No responsive records were found regarding the request for Officer Heimsness and Officer Troumbly incar video audio or lapel video audio. No such records exist. Any records that were obtained through the Wisconsin Department of Transportation have been redacted/withheld in accordance with the federal Drivers Privacy Protection Act (DPPA). Personally identifiable information of cooperating citizens and contacts has been redacted from all responsive records in this records release. This includes dates of birth, home addresses, personal email addresses, telephone numbers, social security numbers, drivers license numbers, and identification card numbers. Release of this information would facilitate identity theft crimes and thus, would be contrary to the well-established public interests in crime prevention and reduction. Additionally, releasing this information would be contrary to the public interests in crime detection and crime fighting in that victims and witnesses may be reluctant to report what they know to the police if they have to fear that this personal and sensitive information is subject to release upon a public records request. Or they may provide less than accurate or less than the best contact information to investigating officers.

Furthermore, some individuals may have their personal contact information listed on the Wisconsin No Call list. This list embodies the public policy that persons who sign up for this list have a legitimate societal recognized interest in the privacy of their phone lines and should not be subjected to unwelcomed phone solicitations or contacts. The Madison Police Department does not know which private telephone numbers are on the State of Wisconsin No Call List. It would amount to an unreasonable burden and expense upon the taxpayers to require the Department to purchase the No Call list and verify the status of each persons, phone number. Doing so would not only be a burden upon the Department, it would also greatly delay every records request as such verification of phone numbers would have to be done for even the most mundane of records. Similarly, the federal CAN-SPAM Act of 2003 is recognition of a similar privacy interest in personal email addresses. The Department did not collect these email addresses with the intent to redistribute them and did not provide their owners with an explicit forewarning that the addresses may be available to third parties. Thus, the Department would be violating the spirit, if not the letter of the federal law by sharing these email addresses with such third parties. See secs. 19.68 & 19.71, 134.98 Wis. Stats. and the federal CAN-SPAM Act. Finally, the personally identifiable information of citizens is being redacted because when the Wisconsin Legislature enacted Wis. Stats. sec. 19.36(10)(a) it was well aware of the substantial body of law holding that public employees are entitled to less privacy than their private sector counterparts. Therefore, the if the Legislature enacted this statute to clarify that such personally identifiable information about public employees must be treated confidentially, it would be incongruous with the then established case law to conclude that information about private citizens is entitled to any less privacy. The exact addresses for medical calls for service, or the names of those citizens involved in a particular call for service, or the specific medical diagnosis, mention of a medical condition or medications taken by mentioned citizens are also redacted from all responsive records contained in this release. Multiple state and federal statutes protect the sensitive nature of medical information by declaring such records confidential. These statutes require the Madison Fire Department to keep such protected health information confidential. In addition, after conducting the balancing test as to this information, I concluded that the public interest in protecting the privacy and confidentiality of the medical records outweighs the public interest in disclosure. The training file of Officer Heimsness and the MDC messages generated through these records requests are being provided in their entirety. Officer Heimsness PS&IA summary sheet Normally our PS&IA summary sheets are not released in their entirety. In Wisconsin State Journal, et al. v. City of Madison Police Department, Case No 96-CV-1137, Judge Frankel wrote (Memorandum Decision and Order dated February 3, 1998, pages 46-47): When dealing with unsubstantiated allegations and minor rule infractions of a personal nature, such information can be very damaging to the privacy and reputational concerns of the police officers as members of the public, yet is largely of de minimis value to the public as a whole. To the extent that release of this information is useful to the public, its primary utility stems from the fact that the public has an interest in the nature of the allegation of misconduct and the disposition of the incidentswhether proper attention was paid to the matter and whether an appropriate disposition ensued. Both lawyer and judicial disciplinary boards in

Wisconsin routinely release to the public summaries of minor professional misconduct together with sanctions imposed while withholding the identities of the parties involved. Release of these summaries of professional misconduct is both a valuable educational tool and a means to assure the public of the integrity of the professional disciplinary process In the interest of striking the appropriate balance between the competing policy interests of the Departments interests in an effective disciplinary system, the officers right to privacy and protection of reputation, verses the publics right to know, I conclude that the Department has a duty under s 19.36, Wis.Stats., to redact information not subject to disclosure under the Open Records Law and to provide information which is Judge Frankel further opined that based on Arreola and the public policy in favor of privacy as expressed in Woznicki and other case law, and the public interest in promoting the continued flow of this sensitive information, it is appropriate for the Department to redact the names and addresses of the officers and complainants involved, as well as any other information likely to reveal their identity. The records requests we have received do not allow me to redact Officer Heimsness name, as it is his investigation file that has been requested. Thus, under Judge Frankels rubric these records would not be released in the ordinary course of business. However, given the heightened public interest created by the facts of the current incident and the public knowledge of Officer Heimsness professional background, the publics right to transparency outweighs Officer Heimsness right to privacy and protection of reputation. Therefore, this PS&IA Summary will include all complaints/allegations filed against Officer Heimsness. This limited release, coupled with the withholding of more detailed but unproven allegations, draws a proper balance in this unique set of circumstances with respect to the factors that Judge Frankel set forth above. To assist the reader I am also including the definition of the different findings. See also MPD policy manual at: http://www.cityofmadison.com/police/ Exonerated The alleged incident occurred, but was lawful and in accordance with policy. Unfounded The evidence shows that the allegation was false. Not Sustained The allegation is not supported by a preponderance of evidence. Sustained A preponderance of evidence shows that the action of the employee was not consistent with Department policy. No finding Circumstances dictate a disposition of no finding. These can include: a complaint received outside of the 90 day time limit; a complainant wishing to withdraw the complaint; a complainant no longer available or not cooperating with the investigation; a complaint received on a retired employee, or on a person not employed by MPD; or a minor complaint informally resolved to the satisfaction of the complainant.

Personnel File: Personally identifiable information has been redacted from personnel files pursuant to Wis. Stats. sec. 19.36(10) (a). Performance evaluations or documents related to wage benefits are being withheld pursuant to Wis. Stats. sec. 19.36(10) (d) which states that the following records are confidential: Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments, or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees. In making the

determination to withhold these records I have also separately applied the balancing test applicable to public records requests. That test requires me to consider whether the public policies served by withholding these records outweigh the substantial public interest presumed to favor the inspection of public records. I have concluded that these records should be withheld because the public disclosure of these documents would skew the accurate completion of other similar documents. In other words, if an evaluator has to be concerned that their comments may one day become public, they may be less than candid with their comments. This would eviscerate the utility of such personnel management instruments. Documents related to our hiring process, to include the pre-employment application, letters of reference, college transcripts, written exam test score, oral board score and background investigation are being withheld in accordance with Wis. Stats. sec. 19.36(10)(c). Each of these items is a component of the examination process that candidates must complete as they continue through our hiring process. Not even the candidates themselves have access to most of this information. Our hiring process, to include all benchmarks and criteria used for rating purposes, has been standardized for many years. Releasing this information would compromise the integrity of future hiring processes. Furthermore, the information obtained within our background investigations was received after giving all interviewed parities complete assurance of confidentiality. If this promise of confidentiality is broken, and these documents were released, it is likely that people would be less than candid in their responses to our inquiries and thus undermine our future hiring processes. If references provide overly positive and unrealistic assessments of applicants there is the distinct risk that less than qualified individuals could be hired as police officers. Thus, in addition to the statutes, the aforementioned balancing test dictates that these letters of recommendation and background investigations should be withheld. It is the publics best interest that those persons who are evaluating another persons fitness to be a police officer provide the most candid and accurate assessments possible. Furthermore, it has been long recognized that the public disclosure of personnel evaluations would cause their authors to be less than candid about their conclusions thus rendering those evaluations useless. Therefore, personnel evaluations and supervisors recommendations are also being withheld for the very same reasons set forth above and as set forth in the decision in See State Ex. re; Journal/Sentinel, Inc. v. Arreola, 207 Wis.2d 496, 514, 558 N.W.2d 670 (Ct. App. 1996). Access to Officer Heimsness medical file is denied. As stated above, multiple state and federal statutes protect the sensitive nature of medical information by declaring such records confidential. These statutes require the Madison Fire Department to keep such protected health information confidential. In addition, after conducting the balancing test as to this information, I concluded that the public interest in protecting the privacy and confidentiality of the medical records outweighs the de minimus public interest in disclosure. MPD case 01-71140 (Police investigation of the Lake Street Ramp shooting) PS&IA Summary and Investigation 01-16 (Lake Street Ramp shooting) Personally identifiable information was redacted out of these records, as well as the full name and identifying information of an arrested juvenile and cooperating juvenile contact. In redacting these names, I note that 19.35(1) Wis. Stats., exempts from disclosure any record that another state statute authorizes to remain confidential. Section 48.396(1) Wis. Stats. states, in part, that law enforcement records of children shall not be open to inspection or their contents disclosed.

All Supervisor opinion/recommendations within the PS&IA documents are being denied. In State Journal/Sentinel, Inc. v. Arreola, 207 WIs.2d 496, 514, 558 N.W.2d 670 (Ct. App. 1996), the courts recognized that the publics interests are advanced when supervisors can share their frank assessments and recommendations without fear that such reports will be publicly disclosed. Therefore, in balancing the public interests associated with the release of these records, I conclude that these denials are necessary to promote public interests that outweigh the presumed public interests associated with the disclosure of this information.
MPD case 06-154206 (Police investigation of the State Street Brats incident) PS&IA Summary 07-01 (State Street Brats incident) *already previously released The previously released investigative summary is included in this release. Access to the investigative file for this case is denied because the investigation did not result in a Sustained policy violation. For the reasons set forth above and in Judge Frankels decision, the release of these records would undermine the public interests of respecting the limited privacy rights of public employees and in maintaining an effective disciplinary system. MPD case 12-320242 (Police investigation of the Officer involved shooting) The police assignment rosters for November 8, 2012 have been removed totally so as to protect the safety of law enforcement officers and their families. Furthermore, these assignment rosters have been removed for crime prevention purposes so that criminals cannot discern any patterns or practices as to how many officers are on duty and assigned to what locations on any given night. These records have also been withheld as Wis. Stats. sec. 19.36(10) (d) provides that Information relating to one or more specific employees that is used by an authority for staff management planningjob assignmentsor other comments or ratings relating to employees are confidential records. All personal documents collected from the deceased, Mr. Paul Heenan, but that did not have any connection to this officer involved shooting investigation, are being withheld from public inspection. These include items such as personal letters, song lyrics, keys, financial cards or account information and receipts. Photographs of the deceased are being withheld as well. As stated in the Wisconsin Public Records Law Compliance Outline created by the Department of Justice The Wisconsin Constitution, art. I, 9m, states that crime victims should be treated with "fairness, dignity, and respect for their privacy." The Wisconsin Statutes recognize that this state constitutional right must be honored vigorously by law enforcement agencies. The statutes further recognize that crime victims include both persons against whom crimes have been committed and a deceased victim's family members. Wis. Stat. 950.01 and 950.02(4)(a). Although Mr. Heenan is not the victim of a crime, he and his family are, much like crime victims, persons who experienced a violent tragedy and therefore, some of the same interests attendant to crime victims are present in this matter The Wisconsin Supreme Court, speaking of both Wis. Const. art. I, 9, and related statutes concerning the rights of crime victims, has instructed that justice requires that all who are engaged in the prosecution of crimes make every effort to minimize further suffering by crime victims." Schilling v. Crime Victim Rights Bd., 2005 WI 17, ~ 26, 278 Wis. 2d 216, ~ 26,692 N.W.2d 623, ~ 26. Similarly, federal courts, including the United States Supreme Court, recognize that family members of a deceased person have personal rights of privacy-in addition to those of the deceased-under both traditional common law and federal statutory law. "Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own." Favish, 541 U.S. at 168. There is little, if any, public interest in viewing these photos. Those

interests are substantially outweighed by the recognized public interests in treating Mr. Heenans memory and his surviving friends and family with dignity and respect. Access to the computer forensic analysis reports of the cell phone owned by Mr. Heenan is also denied. I am persuaded by the public policy reflected in sec. 19.85(1)(e), Wis. Stats. that permits public bodies to meet in closed session to consider strategies for crime prevention and/or crime detection. This statute reflects the public policy that dissemination of the details of such crime prevention/detection strategies would be clearly contrary to the public's interests. This record describes in some detail these very sensitive crime prevention/detection strategies involved in cell phone computer forensics. Furthermore, I am also mindful that if the phone numbers in and of themselves are considered private and not to be disclosed, then the personal text messages, photographic material and telephone numbers dialed from this private number would also have the same expectation of privacy. Finally, the public interest in the content of Mr. Heenans personal effects and communication is minimal at best and is substantially outweighed by the public interest in treating Mr. Heenans memory and his surviving friends and family with dignity and respect. I have also redacted the location of the Madison Police Department evidentiary vehicle storage facility for this same reason. Knowledge of this facility location could compromise its security and thus all evidence contained within. The public interest in knowing this facility location is substantially outweighed by the public interest in preventing potential risk to evidence contained within. Finally, information unrelated to this investigation that might compromise the security of area residents has been redacted. This could include such information such as when a resident is on vacation or if a certain residence does or does not have an alarm system. The public interest in knowing this information is substantially outweighed by the public interest in not providing criminals with sensitive information that would endanger the security of citizens or their homes. PS&IA Summary and Investigation 12-54 (Officer involved shooting) *summary previously released. The summary was previously released but is included again. Portions of the internal investigation are being provided because of the heightened public interest even though this case resulted in a finding of Exonerated. The portions that are being withheld are to protect the integrity of the on-going review being conducted by the United States Department of Justice. They consist of the compelled statements made by Officer Heimsness. These statements cannot be used against Office Heimsness in any criminal proceedings. Thus, releasing them to the public prior to the conclusion of the United States Department of Justice review, could compromise future court proceedings, if any take place. Indeed, the United States Department of Justice has requested that we separate out and withhold Officer Heimsness compelled statements from all other investigative records in this matter. The public interests in protecting the integrity of ongoing investigations is an explicit exception to the general rule of access to public records see secs. 19.35(1)(am)1., 19.36(10)(b), Wis. Stats.. These same considerations are embodied in the well-recognized exceptions to the Open Meetings Laws that permits public bodies to meet in closed sessions to discuss strategies for crime prevention/ detection and to decide any quasi-judicial matter or to consider any public employee discipline, see Wis. Stats. sec. 19.85(1)(a), (b)(d) and (f). The records of this investigation must be kept confidential at this time in order to protect those public interests in conducting this investigation. Emails with parameters stated above The responsive records are being released with specific personally identifiable information redacted as stated above. Also removed, for reasons set forth above, are records of employee hours of work.

Phone call notes or correspondence received by Chief Wray Only personally identifiable information has been redacted. There were no other call notes recovered as responsive records to this portion of the requests. All other PS&IA files for any investigation resulting in a finding of not sustained, exonerated, no finding or unfounded The Departments response to this request has been more fully set forth above. While carefully considering the framework and the parameters of Judge Frankels decision, the Department has also considered the unique and heightened interests in this incident and in this Officers professional history. Officer Heimsness and Officer Troumbly in car video audio or lapel video audio Neither Officer Heimsness nor Officer Troumbly had in-car video, audio or lapel video/audio during this incident. Officers are trained that when responding to a burglary in progress, they are not required to activate squad warning devices. According to MPD policy 6-300 Use of Warning Devices, #4 Officers responding to a call which is reasonably believed to be a felony in progress, may exceed the speed limit without giving audible signal but should give visual signal when doing so will not compromise a tactical response. When not giving a signal, the officer must reasonably believe that one of the following exists: a. Knowledge of the officers presence may endanger the safety of a victim or other person. b. Knowledge of the officers presence may cause the suspected violator to evade apprehension. c. Knowledge of the officers presence may cause the suspected violator to destroy evidence of a suspected felony, or may otherwise result in the loss of evidence of a suspected felony. d. Knowledge of the officers presence may cause the suspected violator to cease the commission of a suspected felony before the officer obtains sufficient evidence to establish grounds for arrest. Our in-car video/audio systems are activated when the squad red and blue light bar system is activated in our patrol cars. Therefore since these two officers were responding to this call without activating their squad warning devices, in accordance with their training and the Departments policies, there are no incar videos to disclose. All other in-car video for those officers that responded to the officer involved shooting is herein provided as those other officers activated their light systems and thus, activated their in-car video systems. CONCLUSION The Department has expended substantial resources in collecting, reviewing and disseminating the enclosed records in a timely fashion. To that end, the Department streamlined the processing of these multiple requests and has delivered all of the pertinent and disclosable records to each of the various records requesters. The Department is delivering the records to you on a compact disk to facilitate your review and to assist in the timely production of these records. As the Department is producing more than you requested, the Department finds that it is in the public interests to waive their copying fees for these records. Furthermore, Officer Heimsness and Officer Troumbly were provided with the statutorily required notice (Wis. Stats. sec. 19.356) of the Departments intention to release these records. Each officer was provided

with the opportunity to inspect these records in the very form the Department has released them herein. Neither officer objected to the release of these records in this form. Additional materials may become available upon the completion of the U.S. Department of Justices investigation. The Department will follow the same processes when determining to what extent the resultant records may be publicly disclosed. In closing you are advised that, pursuant to Sec.19.35 (4)(b) Wis. Stats., this determination not to disclose certain portions of these records is subject to review by Mandamus under Sec. 19.37 Wis. Stats., or upon application to the Wisconsin Attorney General or Dane County District Attorney. I have consulted with the City Attorney regarding the denial of access for a portion of this record per 3.70(6) MGO. The released portions of this report will be mailed with this letter. Sincerely,

Sue Williams, Captain of Police

Cc Roger Allen, ACA