OPEN RECORDS

Updated 7/15/09
Appeals – Time Limits, Intervenor: 20 days
Robert Zellner v. Herrick, et al., 2009 WI 80, on certification
Issue/Holding: A “record subject” has a “limited” right to seek to enjoin release of public records, under § 19.356, on the ground that his or her privacy interests outweigh the public’s right to record disclosure. If that effort is successful, the original requester may intervene for purpose of seeking appellate review. The requester then is treated as a party, so that the § 808.04(1m) time limit for filing an Open Records appeal is 20 days. The notice of appeal in this case was filed outside that time limit and the appeal therefore must be dismissed.
The sole dissenter, Justice Roggensack, probably has the better of the argument, but it hardly matters now. If, as an OR requester, you want to appeal an adverse decision under § 19.356, you had better do it within 20 days.
Investigative Report Forwarded by Law Enforcement to the Prosecutor
Portage Daily Register v. Columbia Co. Sh. Dept., 2008 WI App 30
Issue/Holding: The mere fact that a law enforcement agency has transmitted its report to the prosecutor in an ongoing investigation is not enough, categorically, for the agency to resist an open records request for that report:
¶17      In Foust, the supreme court held that a common law categorical exception exists for records in the custody of a district attorney’s office; it did not hold that a similar exception exists for records in the custody of a law enforcement agency. The Sheriff’s Department is itself an “authority” which had custody of the requested record within the meaning of Wis. Stat. § 19.35(4)(a), and as such, it was legally obligated to provide public access to records in its possession, consistent with the public records law. This obligation cannot be avoided by invoking a common law exception that is exclusive to the records of another custodian. [6]

¶18      The fact that the same record was in the custody of both the law enforcement agency and the district attorney does not change the outcome. As the supreme court observed in a related context, “[i]t is the nature of the documents and not their location which determines their status under [the public records law]. To conclude otherwise would elevate form over substance.” [7] Nichols v. Bennett, 199 Wis. 2d 268, 274, 544 N.W.2d 428 (1996). <> ¶19      … Although a police report is generally categorically exempt from disclosure under Foust if it resides in a prosecutor’s file, [8] the Sheriff’s Department has an independent responsibility to determine whether a police report should be withheld. Whereas a prosecutor may generally rely on the categorical exemption, the Sheriff’s Department must make that determination on a case-by-case basis.

Confidential, Mental Health Treatment (Emergency Detention) Records Excluded from Release
Michael J. Watton v. Nanette H. Hegerty, 2008 WI 74, reversing 2007 WI App 267
¶1   … The issue presented is whether, upon an open records request to the City of Milwaukee Police Department, provisions of the Mental Health Act, ch. 51 of the Wisconsin Statutes, preclude disclosure of duplicate copies of statements of emergency detention that are in the possession of the police department, absent written informed consent or a court order. We conclude that it does; and therefore, we reverse the decision of the court of appeals.

¶19      From the text of these statutory provisions, we observe the following relevant legislative directives: … (4) records that are created in the course of providing services to persons for mental illness and maintained by the department or treatment facility are "registration records," Wis. Stat. § 51.30(1)(am); (5) "treatment records" include all "registration records" that are "maintained" by treatment facilities, § 51.30(1)(b); (6) "treatment records" must [13] remain confidential and are privileged, § 51.30(4)(a); and (7) "treatment records" may be released by court order, when the person to whom the records relate does not provide written informed consent authorizing their release, § 51.30(4)(b)4.

¶20      We conclude that the sum of these directives, as they relate to Gray, is that the statements of emergency detention are "registration records"; and therefore, they are exempt from the public records request. They are also "confidential and . . . privileged" "treatment records" protected by statute. Wis. Stat. § 51.30(1)(b) and (4). Our conclusion rests on the following rationale. "Registration records" are records of the Department of Health and Family Services created as a result of "providing services" to individuals for mental illness. § 51.30(1)(am). Statements of emergency detention fit within this definition of "registration records" because the officer creating the statement of emergency detention "provid[es] services to . . . individuals" in regard to mental illness. Id. The officer provides services in at least two respects: (1) as required by Wis. Stat. § 51.15(4)(a), the officer fills out and signs the statement of emergency detention form, thereby relaying important factual information that the person who is in need of assistance may not be able to provide to the treatment facility; and (2) as required by § 51.15(2), the officer either transports the individual to a state treatment facility, or arranges for the individual to be transported to a state treatment facility. The transport also benefits the treatment facility, as well as the individual. These services that the officer provides cause the statements of emergency detention to fit squarely within the Mental Health Act's description of "registration records." § 51.30(1)(am).


 [13]  The legislature has established that "all treatment records shall remain confidential and are privileged." Wis. Stat. § 51.30(4)(a) (emphasis added.) We have "characterized . . . 'shall' as mandatory unless a different construction is required by the statute to carry out the clear intent of the legislature." Forest County v. Goode, 219 Wis.  2d 654, 663, 579 N.W.2d 715 (1998). Given the sensitivity of "treatment records" and the strong legislative "interest in keeping private the details of an individual's mental and emotional condition," Billy Jo W. v. Metro, 182 Wis.  2d 616, 632, 514 N.W.2d 707 (1994), we conclude that "shall" has a mandatory meaning within § 51.30(4)(a). Watton represents the victim of a homicide allegedly committed by Gray, who had been in and out of custody under civil commitment; Watton wants the detention records to determine liability against the local police, who arrested but released Gray just before he allegedly killed the victim. The upshot is that, contrary to the court of appeals, Watton can’t use Open Records to obtain these documents. Note, however, that the records are not immune from release under another mechanism:
¶ 29      We also note that our decision does not necessarily thwart Watton's attempt to obtain Gray's statements of emergency detention. As provided in Wis. Stat. §  51.30(4)(a)4, Watton may petition the appropriate circuit court for an order compelling release of the statements. Beyond what we have just stated, we express no opinion with respect to the issuance of such an order. If Watton chooses to seek a §  51.30(4)(a)4 order, we leave it to the sound discretion of the circuit court to grant Watton's motion for an order, deny Watton's motion, or to grant the motion in part, permitting only partial disclosure of the statements of emergency detention.
Incidentally, § 51.30(4)(a)4 is a wonderfully elastic provision that authorizes, without qualification, otherwise confidential mental heath records to be released “(p)ursuant to lawful order of a court of record.” As ¶29 explicitly indicates, this provision may be utilized to obtain the requested material – although the court suggests that the circuit court’s decision is unfettered, the general considerations informing the decision were discussed in Billy Jo W., which remains virtually the only case in this area.

Note that Gray, in the related but independent criminal case, put his mental status in issue, something mentioned by the court of appeals, 2007 WI App 267, ¶26:

¶26      Gray put his mental condition in issue in a public forum twice before the trial court here refused to order the release of the MPD detention reports. Gray first put his mental health in issue by requesting and obtaining a competency evaluation, and again later by entering a plea of not guilty by reason of mental disease or defect. [17] … Accordingly, Gray’s public assertion that he is mentally ill acts as a waiver of any privilege of confidentiality that may have otherwise attached to these records and, therefore, nondisclosure of the emergency detention reports is not required by this statute.
 [17] See Wisconsin Circuit Court Access (CCAP) records for Milwaukee County, Case No. 06CF3898. These are public records of which we may take judicial notice. The parties refer to this plea in their briefs before this court. Although no reference to the plea of not guilty by reason of mental disease or defect appears in the record before the trial court, that plea had been entered before the trial court made its decision. Records of the competency evaluation are part of the record that was before the trial court.
To the extent these remarks are directed toward waiver of Open Records confidentiality they no longer have any force, given the supreme court's reversal. But there is no reason to think that the matter of waiver woouldn't be deemed highly relevant to the separate question of discretionary release of the material by order of the circuit court.

On an entirely separate point, compare fn. 17 above with State v. Jamale A. Bonds, 2006 WI 83, ¶46 (“a CCAP report, by its own terms, is of questionable accuracy. It is not the official record of a criminal case, as the clerks of court for each county are the officials responsible for those records,” and going on to hold that CCAP can’t alone supply proof of a repeater allegation).

Alleged Records Retentions Violations: Can't Be Reached Through Open Records
State ex rel. Gehl v. Connors, 2007 WI App 238
Issue/Holding: Petitioner's claim that the County unlawfully deleted emails (that is, allegedly violated records retention laws) isn't cognizable under the Open Records law, ¶¶12-15.
Overly Broad Request
State ex rel. Gehl v. Connors, 2007 WI App 238
Issue/Holding: A request for "virtually every email that passed between all employees of the five County offices and departments named in his request and any of approximately thirty-four individuals over a two-year period, was properly rejected as overly broad¶¶23-24.
Construction
Local 2489 v. Rock County, 2004 WI App 210
Issue/Holding1:
¶11 … To this general standard for interpreting statutes, we must add the specific guidance that has evolved in the common law regarding interpretation of the Wisconsin Open Records Law: given the legislative declaration of policy in Wis. Stat. § 19.31 that establishes "a presumption of complete public access,"3 the language of a statutory exception to public access should always be construed as narrowly as possible. See Chvala v. Bubolz, 204 Wis. 2d 82, 88, 552 N.W.2d 892 (Ct. App. 1996).
3 Wisconsin Stat. § 19.31 declares that "it is ... the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them." To that end, Wis. Stat. §§ 19.32 to 19.37 "shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶49 n.8, 271 Wis. 2d 633, 643 N.W.2d 466 ("A plain meaning, text-based approach to statutory interpretation certainly does not prohibit the interpretation of a statute in light of its textually manifest scope, context, or purpose.").
Issue2: Whether an investigation into employee misconduct had concluded so as to allow open records release of material related to the alleged misconduct, where the employer had investigated and taken disciplinary action but the employees’ grievance process had not yet concluded.
Holding2:
¶14. We agree with the Gazette that the language of Wis. Stat. § 19.356 evinces a legislative intent that public records be promptly disclosed to a requester, even if their release is challenged by an employee. Reading § 19.36(10)(b) to preclude the release of records until any grievance arbitration or other review proceedings initiated by the employee have run their course would permit the employee to create prolonged delays in the release of the requested records. Thus, read in the context of a closely related statute, the "investigation" and "disposition of the investigation" cannot reasonably be read to extend to the progress and completion of grievance arbitration as the union contends. See State ex rel. Kalal, 271 Wis. 2d 633, 46 ("[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.").

¶15. We conclude that, in keeping with the mandate for narrow construction of excepting language, the term "investigation" in § 19.36(10)(b) includes only that conducted by the public authority itself as a prelude to possible employee disciplinary action. We also conclude that an authority's investigation achieves its "disposition" when the authority acts to impose discipline on an employee as a result of the investigation, regardless of whether an employee elects to pursue grievance arbitration or another review mechanism that may be available under applicable statutes, ordinances, regulations or a collective bargaining agreement.4

¶21. Having concluded that the sheriff was not precluded by Wis. Stat. § 19.36(10)(b) from releasing the records of his completed investigations into possible employee misconduct, we now consider whether the trial court correctly concluded that the public interest in disclosure was not outweighed by any public interest in their nondisclosure. …

¶26. Thus, the public's interest in not injuring the reputations of public employees must be given due consideration, but it is not controlling. When individuals become public employees, they necessarily give up certain privacy rights and are subject to a degree of public scrutiny. …

¶27. We thus conclude that the public interest in protecting the privacy and reputations of the employees in this case is not a compelling one that would, by itself, override the strong public interest in obtaining information regarding their activities while on duty. As in Linzmeyer v. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811, the misconduct in this case "allegedly occurred in the location where the public has entrusted [the employees] to work and during the performance of [their] public duties, and therefore should be more subject to public scrutiny." Id., ¶28. We note as well that, although the union discounts the protection afforded, the sheriff proposes to release the reports of his completed investigation with the names of the disciplined employees redacted, a measure which in itself will afford some protection to the asserted interests.7

Copyright Material – Standing to Challenge Disclosure
Robert Zellner v. Cedarburg School District, 2007 WI 53, on certification
Issue/Holding:
¶20   Zellner … relies on Mutual Services Casualty Ins. Co. v. Koenigs, 110 Wis. 2d 522, 329 N.W.2d 157 (1983), in support of his argument. … This court held that the parents and their automobile insurer had standing to appeal the circuit court's dismissal, even though they had never asserted a claim against the homeowner's insurer, because they were aggrieved by the judgment entered in the action, in that their interests were adversely affected. Id., at 527.

¶21      We agree with Zellner that he has standing, in accord with Mutual Services, to raise the copyright exception to the Open Records Law, as a basis for his objection to the release of the CD. Although Mutual Services involved the issue of standing to appeal, whereas the present case involves the issue of standing to challenge the release of copyrighted materials under the Open Records Law in his appeal of the circuit court's decision, Mutual Services is helpful in our analysis. Zellner will be impacted personally by this court's holding in regard to the requested release, and his interests were adversely affected by the circuit court decision. He has standing, therefore, to raise the copyright exception as part of his appeal in this case.

An awfully broad view of standing. True, Zellner is “aggrieved” (in the traditional language of standing for appellate purposes) by the challenged order, but it simply isn’t evident just how a violation of copyright restrictions injures him. Note, that is, that the court doesn’t say you have to be injured by the particular harm you’re asserting.
Copyright Material – “Record” under Ch. 19
Robert Zellner v. Cedarburg School District, 2007 WI 53, on certification
Issue/Holding: Although § 19.31(2) excepts copyrighted material from open record disclosure, the “fair use” doctrine permits disclosure in the presence of the factors listed in 17 U.S.C. § 107, especially in view of policy favoring public access to material under the open records law, ¶¶22-31.
Costs
State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419, 538 N.W.2d 608 (Ct. App. 1995)
Issue/Holding:
Hill also objects to the record custodian requiring prepayment of the reproduction costs. He contends that he was not provided an "'[a]ctual' cost/fee for production of the requested documents." See § 19.35(3)(a), Stats. Hill further maintains that he has "no legal duty to pre-pay rough estimates" of the copying costs. To address this argument, we are again required to engage in statutory interpretation.

...

Although an authority may not impose a fee that exceeds the actual cost of reproducing documents, it may require prepayment of the fees imposed if the total amount exceeds five dollars. Section 19.35(3)(f), Stats. We reject Hill's argument that an authority may not give a reasonable estimate of the costs expected to exceed five dollars and require payment before it undertakes large copying tasks. This subsection is clearly intended to protect an authority from squandering staff time, supplies and equipment usage for a substantial copying project that a requester might later disavow. To read the statute otherwise would require the authority to actually copy the documents to obtain an exact amount of the costs, which would soundly defeat the purpose of § 19.35(3)(f). ...

... The statute specifically authorizes an authority to request prepayment if the cost exceeds five dollars. If, when Hill prepays, the estimate exceeds the actual cost, the overpayment can be refunded.

Countervailing privacy interests
Kraemer Brothers, Inc. v. Dane County, 229 Wis. 2d 86, 599 N.W.2d 75 (Ct. App. 1999).
Individual's right to privacy may overcome presumption in favor of disclosure under Public Records Law, the wrinkle being that, unlike past such cases, this one with individuals working for a private company on a public project, not public employees; the latter have a lower expectation of privacy because they chose public employment, while the latter have no choice in whether their employer contracts with a governmental unit.
Custodian – Independent Contractor of Municipality – Mandamus – Entitlement to “Source Material”
WIREdata, Inc. v. Sussex, et al., 2007 WI App 22, PFR filed 2/2/07; X-PFR filed 2/28/07
Issue1: Whether a municipality is a “custodian” for Open Records purposes where the records are created and maintained by the municipality’s independent contractor.
Holding1:
¶43    Journal/Sentinel teaches that pursuant to Wis. Stat. § 19.36, public bodies cannot evade their responsibilities under the open records law by shifting a record’s creation or custody to an independent contractor. Indeed, as the open records case law suggests, that is the precise type of evil the contractors’ records exception is designed to overcome. Machotka v. Village of West Salem, 2000 WI App 43, ¶8, 233 Wis. 2d 106, 607 N.W.2d 319. Accordingly, simply because Sussex, Thiensville and Port Washington have contracted out the collection and maintenance of the assessment information does not mean that they have relieved themselves of their responsibilities under the open records laws. The municipalities are the responsible authorities under the open records laws.
Building and Construction Trades Council of South Central Wisconsin v. Waunakee Community School District, 221 Wis. 2d 575, 585 N.W.2d 726 (Ct. App. 1998) and Machotka distinguished, in that in those cases the records “fell outside of the contractual obligations between the authorities and their contractors.”
Issue/Holding2: The governmental body, and not the private entity with which it contracts, is the custodian of sought-after records, ¶¶45-49.
Issue/Holding3: Because of the obligation of timely access to government records, failure to respond to an Open Records request within “several weeks” supported a mandamus action to compel a response, ¶¶52-55; and, conditioning release on payment of “plainly unauthorized” financial terms effectively works a denial of the request, ¶¶56-57.
Issue/Holding4: Provision of the PDF was insufficient; rather, the requester was entitled to “to the source material—the material as it is both inputted and stored in the database, regardless of its physical form or characteristics,” ¶¶62-68.
Digital Audio Tape of 911 Call
State ex rel. Milwaukee Police Association v. Jones, 2000 WI App 146, 237 Wis.2d 627, 614 N.W.2d 541
Issue: Whether the police department providing the analog tape adequately complied with an open records request for the digital audio tape of a 911 call.
Holding: "(B)ecause of the differences between a DAT and an analog recording, the City was required to produce the DAT recording for the MPA's examination and copying, in order to comply with the MPA's open records request." ¶2. (See also ¶19: "A potent open records request must remain open to technological advances so that its statutory terms remain true to the law's intent.")
Disclosure: Balancing of Interests
Robert Zellner v. Cedarburg School District, 2007 WI 53, on certification
Issue/Holding:
¶49      We are satisfied that the strong public policy, evidenced by the presumption of complete public access that records should be open for review, outweighs the public's interest in protecting Zellner's privacy and reputation interests here, in regard to the release of the CD and memo. …

¶50      We recognize, however, that the public policy in favor of openness, although strong, is not absolute. This court has also held that the public interest in the protection of the reputation and privacy of citizens may be a factor that favors nonrelease. …

¶52      In this case, the CD and the memo contain internet searches, websites, and images allegedly conducted and viewed by Zellner on his work computer. Release of the CD and the memo could cause embarrassment to Zellner and could damage his reputation. We recognize the sensitive nature of the information contained in the memo and CD. However, in applying the common-law balancing test, the concern is not personal embarrassment and damage to reputation, but whether disclosure would affect any public interest. Zellner fails to show how his personal interest in protecting his own privacy, character, and reputation, and his interest in avoiding embarrassment, would give rise to a public interest in the protection of the privacy and reputation of citizens generally. Id., ¶36. He has also failed to establish that the CD and memo contain inaccurate, misleading, and unauthenticated data and, accordingly, that they should not be released. Even if Zellner could establish that the CD and memo contain such data, he has an avenue of recourse available to him to address such concerns. See Jensen, 251 Wis. 2d 676, ¶16. For example, Zellner has a statutory right under Wis. Stat. § 103.13(4) [11] to file a response when the evaluation is released. Id.

John Doe Proceeding, § 968.26
State ex rel Unnamed Persons v. State, 2003 WI 30
For Unnamed Persons: Franklyn M. Gimbel, et al.
Issue/Holding:
¶66. We agree that the public records law, Wis. Stat. § 19.35, is applicable to this issue and we reaffirm the general presumption that all public records shall be open to the public. Wis. Stat. §§ 19.31-19.39. This presumption reflects the basic principle that the people must be informed about the workings of their government, and that openness in government is essential to maintain the strength of our democratic society. Id. We have recognized, however, that the policy toward openness, although strong, is not absolute. Milwaukee Teachers' Educ. Ass'n v. Bd. of Sch. Dirs., 227 Wis. 2d 779, 787, 596 N.W.2d 403 (1999). A balance must be struck between the public's right to be informed about the workings of its government and the legitimate need to maintain the secrecy of certain John Doe proceedings.

¶67. To that end, the public records law provides that a requester has a right to inspect any record "[e]xcept as otherwise provided by law." Wis. Stat. § 19.35(1). The John Doe statute, Wis. Stat. § 968.26, which authorizes secrecy in John Doe proceedings, is a clear statement of legislative policy and constitutes a specific exception to the public records law. It is critical that when a John Doe judge issues a secrecy order pursuant to Wis. Stat. § 968.26, the judge must be assured that secrecy will be preserved when and if the matter reaches an appellate court. Seeking review in the court of appeals must not become a vehicle to undermine the secrecy or integrity of a John Doe proceeding.

¶68. Therefore, on review of a petition for a writ stemming from a secret John Doe proceeding, the court of appeals may seal parts of a record in order to comply with existing secrecy orders issued by the John Doe judge. As noted above, a permissible secrecy order may properly encompass information concerning questions asked, answers given, transcripts of the proceedings, exhibits produced during the proceedings, or "other matters observed or heard in the secret session at a John Doe Proceeding." See O'Connor, 77 Wis. 2d at 279. Therefore, this information may be sealed by the appellate court. Indeed, failure to protect this information on review would compromise John Doe investigations and encourage frivolous requests for review by disgruntled individuals seeking to expose the details of the underlying proceeding.

¶69. Here, the court of appeals faced a difficult predicament. It was presented with three separate petitions for supervisory writ deriving from a secret John Doe proceeding about which it knew very little, save that there was a secrecy order that was to be strictly observed. The record of the entire underlying John Doe proceeding was not available to the court of appeals, nor, indeed, was it available to this court, to evaluate whether particular documents needed to be sealed to protect the integrity of the underlying John Doe proceeding.

Non-profit agency.
Patricia Cavey v. James A. Walrath, 229 Wis.2d 105, 598 N.W.2d 240 (Ct. App. 1999).
Records of a non-profit agency (in this case, Legal Aid Society of Milwaukee) held subject to Public Records Law, §§ 19.31 et seq. The test is whether the agency receives more than 50% of its funds form a county or municipality and provides services related to public health and safety.
Prisoner's Request -- Disciplinary Records
State ex rel. Maurice Fort Greer v. Stahowiak, 2005 WI App 219
Pro se
Issue: Whether a prisoner was entitled, under the open records law, to documents relating to a prison disciplinary proceeding against him, where DOC determined that public policy reasons for withholding outweighed his interest in release.
Holding:
¶9        ….  Because Greer is incarcerated, he is limited to requests for records with “specific references” to him. Wis. Stat. § 19.32(3). For that reason, we analyze his request under Wis. Stat. § 19.35(1)(am).

¶10      Our supreme court observed that Wis. Stat. § 19.35(1)(am) provides “a more potent right of access when it applies.” Hempel v. City of Baraboo, 2005 WI 120, ¶32, ___ Wis. 2d ___, 699 N.W.2d 551 (comparing requests made under § 19.35(1)(a) with those under (1)(am)). When a request is made under § 19.35(1)(am), the right to inspect the record “is more unqualified” than the right that attaches to a more general record request under § 19.35(1)(a). Hempel, 699 N.W.2d 551, ¶34. ... “Paragraph (am) recognizes only statutory exceptions.” Hempel, 699 N.W.2d 551, ¶34.

¶11      With these principles in mind, we turn to Greer’s allegations of error. He contends that the DOC’s partial denial of his request was arbitrary and capricious. He challenges the DOC’s determination that “public policy reasons for withholding these documents outweigh your interests in obtaining them.” We agree with Greer that this reason, standing alone, is not the appropriate test to apply to a Wis. Stat. § 19.35(1)(am) request. In Hempel, our supreme court explained that requests under paragraph (am) “are not subject to any balancing test; the legislature has done the balancing by enacting statutory exceptions to the disclosure requirements.” Hempel, 699 N.W.2d 551, ¶27.

¶12      Nonetheless, the DOC properly turned to the statutory provisions and administrative rules to determine which of Greer’s requested documents should be provided. …

¶13      We conclude that the DOC’s response was appropriate. The right to inspect or copy materials does not apply to records that would “[e]ndanger the security … of the population or staff” of a state prison, or that would “[c]ompromise the rehabilitation of a person in the custody of the department of corrections.” Wis. Stat. § 19.35(1)(am)2.c. and d. We find no error in the DOC’s analysis.

Procedure -- Challenging Release of Records -- Mandamus
State ex rel. Maurice Fort Greer v. Stahowiak, 2005 WI App 219
Pro se
Issue/Holding:
¶7        Mandamus is the proper means to challenge a governmental agency’s failure to comply with the requirements of Wisconsin ’s open records law. See ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶1, 259 Wis. 2d 276, 655 N.W.2d 510. Where a circuit court, determining a petition for writ of mandamus, has interpreted Wisconsin ’s open records law and has applied that law to undisputed facts, we review the circuit court’s decision de novo. State ex rel. Milwaukee Police Ass’n v. Jones, 2000 WI App 146, ¶11, 237 Wis. 2d 840, 615 N.W.2d 190. In doing so, we take direction from the legislature’s declaration of policy:
In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.
Wis. Stat. § 19.31.
Parole files.
State ex rel. John S. Bergmann v. Faust, 226 Wis.2d 273, 595 N.W.2d 75 (Ct. App. 1999)
"We hold that protecting persons who supply information or opinions about an inmate to the parole commission from harassment, retaliation or other harm is an interest that may on balance outweigh the public's interest in having access to documents that could identify those persons." The court concludes, after in camera inspection of the requested material, that the need to protect outweighs public interest in disclosure.
Public Agency (Police Department), Internal Sexual Harassment Investigation, Right to Inspect
Hempel v. City of Baraboo, 2005 WI 120, affirming, 2003 WI App 254
Issue/Holding:
¶3 We conclude, first, that when a person makes an open records request for records containing personally identifiable information under Wis. Stat. § 19.35(1)(am), the person is entitled to inspect the records unless the surrounding factual circumstances reasonably fall within one or more of the statutory exceptions to paragraph (am).

¶4 Second, if the person makes a more general open records request under § 19.35(1)(a), the records custodian, keeping in mind the strong legislative presumption favoring disclosure, must determine whether the requested records are subject to an exception that may or will prevent disclosure. ...

¶5 Applying these principles to this case, we conclude, first, that Hempel was the subject of an investigation "in connection with a complaint," an express statutory exception to paragraph (am). As such, Hempel's request falls directly within one of the statutory exceptions to disclosure. Disclosure would also expose the names with statements of informants who were promised confidentiality for their cooperation in the internal investigation. He therefore had no right to more information under paragraph (am) than he received. Second, in this case, the public interest in nondisclosure of police investigative records outweighs the public interest in releasing the records under Wis. Stat. § 19.35(1)(a). As a result, the Department had the authority to deny Hempel's open records request. Accordingly, we affirm the decision of the court of appeals.

Police Investigation, Closed with No Enforcement Action Taken
Linzmeyer v. Forcey, 2002 WI 84, on certification
Issue: Whether the open records law applies to the report of a police investigaiton that has been closed without enforcement action.
Holding: The general presumption is that all public records are open to the public. ¶15. Although some sections of the law clearly prevent release of law enforcement records, none of the exceptions apply here. ¶¶17-21.

Issue: Whether the presumption in favor of disclsoure is overcome by harm to some public interest.
Holding: Reports of police investigations can be particularly sensitive, and are generally more likely to have an adverse effect on public interests if released. ¶¶30-31. These interests must be public; the individual's private interests, such as embarrassment, aren't pertinent. ¶¶35-36. Release is favored here, because much of the infomation was both already known to the public and corroborated. ¶37. However, "this is not an attribute of many police reports." ¶38.

Release – Timing – Discipline Already Imposed
Robert Zellner v. Cedarburg School District, 2007 WI 53, on certification
Issue/Holding:

¶38      We hold that, consistent with the decision in Rock County, the investigation of Zellner was "disposed of" when he was terminated and that, therefore, the CD and the memo were not exempt from disclosure under Wis. Stat. § 19.36(10)(b). As noted previously, in Rock County, 277 Wis. 2d 208, ¶15, the court of appeals held that that "the term 'investigation' in § 19.36(10)(b) includes only that conducted by the public authority itself as a prelude to possible employee disciplinary action."

¶39      The memo and the CD that the District's attorney presented to Zellner at the meeting held on February 20, 2006, to discuss settlement of the grievance, were not records "connected with employment by an employee prior to disposition of the investigation[,]" and thus may be disclosed without violating Wis. Stat. § 19.36(10)(b).

Sexually Violent Person, ch. 980: Open Records Law Inapplicable to
State ex rel. Donald Savinski v. Kimble, 221 Wis. 2d 833, 586 N.W.2d 36 (Ct. App. 1998)
For Kimble: Pro se
Issue/Holding:
Nothing in the statutes or regulations suggests that the director is to weigh the harm to the public interest against the benefit to the public interest in deciding on access. Rather, the only reasonable interpretation of the statutes and regulations is that the director is to balance the benefits to the patient of allowing access against the disadvantages to the patient, other patients and the facility. We therefore conclude that Kimble's citation to § 51.30(4)(d)1, Stats., and Wis. Adm. Code § HSS 92.05(1) was sufficient if that statute and regulation apply to Savinski's request. We turn to that issue now.

Both § 51.30(4)(d)1, Stats., and Wis. Adm. Code § HSS 92.05(1) concern access to "treatment records." ... Savinski does not dispute that all the records he requested are "records concerning" Savinski, a patient "receiving ... services for mental illness," and were "maintained by ... [the] treatment facilit[y]." We conclude that they are treatment records under § 51.30(4)(d)1.

Finally, we must determine whether Kimble and Macht met the requirements of § 51.30(4)(d)1, Stats., and Wis. Adm. Code § HSS 92.05(1) in denying Savinski's request. ... Unlike the open records law, neither § 51.30 nor the corresponding provisions of the administrative code require the director of the facility to provide the requester with reasons for a denial of a records request. Section 51.30 contains no such requirement, and Wis. Adm. Code § HSS 92.05(1)(b)2 requires simply that "the [director's] reasons for any restriction shall be entered into the treatment record." Macht, therefore, did not violate any statute or regulation by not providing Savinski with detailed reasons for the denial of his request prior to responding to a writ of mandamus.

Consider what happens, though, when a newspaper reporter wants Open Records access to mental health files: In Re Billy Jo W. v. Metro, 182 Wis. 2d 616, 514 N.W.2d 707 (1994).