2008 WI App 30
court of appeals of
published opinion
Case No.: |
2007AP323 |
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Complete Title of Case: |
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Plaintiffs-Appellants, v.
Defendants-Respondents. |
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Opinion Filed: |
January 31, 2008 |
Submitted on Briefs: |
September 14, 2007 |
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JUDGES: |
Higginbotham, P.J., Vergeront and Bridge, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Robert J. Dreps and Jennifer L. Peterson of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendants-respondents, the cause was submitted on the brief of Daniel G. Jardine and Jessica M. Baumgartner of Jardine Law Office LLC of DeForest. |
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2008 WI App 30
COURT OF APPEALS DECISION DATED AND FILED January 31, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Plaintiffs-Appellants, v.
Defendants-Respondents. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Vergeront and Bridge, JJ.
¶1 BRIDGE, J. The Portage Daily Register appeals an order denying its writ of mandamus which sought to compel the Columbia County Sheriff’s Department to provide it with a copy of an investigative report pursuant to Wis. Stat. § 19.37 (2005-06).[1] The Sheriff’s Department denied the request on the ground that the report, a copy of which the Sheriff’s Department retained, had been forwarded to the district attorney’s office and was part of an open investigation. The circuit court determined that this reason for denying the report was sufficiently specific, and that the Sheriff’s Department properly withheld the report under the public records balancing test. We conclude that the Sheriff’s Department did not state a legally specific policy reason for its denial. Accordingly, we reverse.
Background
¶2 In the months preceding the fall 2006 Republican primary election for Columbia County Sheriff, fliers attacking one of the candidates appeared in mailboxes throughout the county. The fliers were authored by an anonymous and unregistered group calling itself “Concerned Citizens of Columbia County.” The fliers were brought to the attention of the Columbia County District Attorney, who told the local newspaper, the Portage Daily Register, that she had “instructed the … Sheriff’s Department to forward one to her office with a report for investigation into possible illegal campaigning.”
¶3 On July 26, 2006, the Register made a written request under the Wisconsin public records law for a document it described as a “Sheriff’s Department report No. 06-24428 dated on or about June 28, 2006.” The Sheriff’s Department denied the request in a letter dated August 9, 2006.[2] The letter stated the following basis for denial: “The matter has been referred to the District Attorney’s Office for review to determine if, in fact, it is criminal in nature or not and/or whether additional investigation is required. The matter, therefore, remains an open and ongoing investigation and cannot be released at this time.” The letter further asserted that upon termination of the investigation, “the report can be reviewed for release under the WI Open Records Law.”
¶4 The Columbia County District Attorney determined that her office could not review the matter due to a potential conflict, and ultimately the Dodge County District Attorney agreed to act as special prosecutor in the matter. On September 1, 2006, the Dodge County District Attorney released to the public a memorandum he had sent to the Columbia County Sheriff indicating that after reviewing the investigative reports prepared by the Columbia County Sheriff, he had decided to decline prosecution. In addition, the district attorney released to the public “copies of the law enforcement reports generated by this investigation,” including report number 06-24428.
¶5 The report was an incident report consisting of eight pages, with just over one page of narrative. In it, the investigating officer described the investigation he completed on June 28, 2006, consisting of an interview with the complainant, his own observations about the flier, his contacts with the district attorney’s office and the Shopper Stopper,[3] and an interview with the complainant’s mother, who had also received a flier. At the end of the report, the investigating officer stated:
DISPOSITION
This report will be forwarded to the Columbia County District Attorney’s Office for their review. I have nothing more at this time.
End of report
¶6 Prior to the time that the report was made public, the
Register filed a mandamus action against the Sheriff’s Department and Sheriff
Steven Rowe under the public records law, Wis.
Stat. § 19.37. The Sheriff’s
Department filed an answer, and the court held a hearing on the matter. Neither party provided the court with a copy
of the requested record to review in
camera either before or during the hearing.
The court determined that the reasons stated by the Sheriff’s Department
for denying the request were sufficiently specific under Journal/Sentinel, Inc. v. Aagerup,
145
Discussion
Mootness Argument
¶7 The Sheriff’s Department first points out that, following
disclosure by the district attorney, the Register received a copy of the
sought-after report from the Dodge County District Attorney. It contends that, as a result, a decision by
this court in the Register’s favor can have no practical effect on the
controversy, and the issue on appeal is therefore moot. See
¶8 We will generally not consider issues that are moot on
appeal. See Hernandez v. Allen, 2005 WI App 247, ¶10, 288
Standard of Review
¶9 Where a circuit court, determining a petition for a writ of
mandamus, has interpreted
Sufficiency of the Denial
¶10 We begin our discussion by recognizing that the legislature has
created a statutory presumption that all government records are public. Wis.
Stat. § 19.31 provides that §§ 19.32 to 19.37 (the
¶11 This strong presumption of public access may give way to
statutory or specified common law exceptions, or, if there is an overriding
public interest in keeping the record confidential. See Hathaway v. Joint Sch. Dist., 116
¶12 The supreme court has established a two-step process for
analyzing the question of whether a custodian’s denial of access can be
sustained by the reviewing court. See Baldarotta,
162
¶13 The Sheriff’s Department’s denial stated as follows: “The matter has been referred to the District Attorney’s Office for review to determine if, in fact, it is criminal in nature or not and/or whether additional investigation is required. The matter, therefore, remains an open and ongoing investigation and cannot be released at this time.”
¶14 When denying inspection, a records custodian is not required to
“provide a detailed analysis of the record and why public policy directs that
it must be withheld.” Aagerup,
145
¶15 The Sheriff’s Department argues that it was appropriate for it
to withhold the document under its reading of State ex rel. Richards v. Foust,
165 Wis. 2d 429, 477 N.W.2d 608 (1991), in which the supreme court held that
the common law provides an exception to the public records law as it relates to
district attorneys’ files.
¶16 The Sheriff’s Department contends that because it transmitted the report to the district attorney[5] and the report related to an ongoing investigation, the Sheriff’s Department lacked the authority to disclose the report in light of the ruling in Foust. The Sheriff’s Department argues that it was not for it to decide whether the record was a prosecutorial record under Foust, because the district attorney’s office was the entity responsible for making that determination. Thus, in essence, it argues that its denial was sufficiently specific because, under Foust, the fact of an open investigation in a prosecutor’s office, standing alone, was adequate to support a denial. We conclude that the Sheriff’s Department’s reliance on Foust is misplaced.
¶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
¶19 The Sheriff’s Department argues that allowing a requester to obtain from a law enforcement agency records which it has also forwarded to a district attorney’s office would have “dangerous potential” in that it would permit requesters to avoid the ruling in Foust. However, allowing the Sheriff’s Department to withhold a record, regardless of its content, simply because a copy of that record has been forwarded to a district attorney’s office, would not serve the purposes of the public records law. Moreover, the Sheriff’s Department retains the ability to determine whether the release of a particular record is or is not warranted in a given situation. 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.
¶20 To the extent that the Sheriff’s Department can articulate a
policy reason why the public interest in disclosure is outweighed by the
interest in withholding the particular record—including that disclosure would
interfere with an ongoing investigation—it may properly deny access. This is consistent with the approach which
has been upheld in the context of a variety of other law enforcement
records. See, e.g., Milwaukee Journal v.
Call, 153
¶21 Expanding the Foust exception to include any police
report sent to a prosecutor, regardless of content, would also contravene the
public record law’s mandate to narrowly construe exceptions. “Exceptions should be recognized for what
they are, instances in derogation of the general legislative intent [of public
access], and should, therefore, be narrowly construed; and unless the exception
is explicit and unequivocal, it will not be held to be an exception.” Hathaway, 116
¶22 For these reasons, we conclude that the Sheriff’s Department was not entitled to invoke the categorical exception for prosecutorial records which was found to exist in Foust in the context of denying access to a police report.
¶23 The Sheriff’s Department also relies on Aagerup and argues that its denial was equally as specific as the denial found to be adequate in that case. We disagree.
¶24 In Aagerup, a coroner denied access to a portion of an autopsy
report in an ongoing homicide investigation by stating that the report was
implicated in crime detection efforts in the case. Aagerup, 145
Here, the custodian stated that the autopsy was part of a law enforcement detection effort. She did not merely cite to the exemption statute, but rather pointed to a particular statutorily-recognized public policy reason for confidentiality: crime detection.
….
The custodian did not withhold the record because it was “an autopsy”; she withheld “the autopsy” on the grounds that it was implicated in the crime detection effort of this particular case.
¶25 Unlike the reason given in Aagerup, the Sheriff’s Department’s statement provided no policy reason; it stated only that the matter had been referred to the district attorney’s office and was related to an ongoing investigation. This is a statement of fact, not a public policy reason for denying access.
¶26 In Aagerup, the sought-after record was related to an open
criminal investigation; however, that fact, standing alone, did not form the
custodian’s reason for denial. Instead,
the custodian went on to assert a specific policy reason—the protection of
crime detection strategy—to justify withholding the portion of the autopsy
report from public inspection. In
contrast, the Sheriff’s Department’s denial was not based on crime
detection. Nor was it based on prejudice
to the ongoing investigation, or informant confidentiality, two additional
bases for denial of law enforcement records which have been found to be
sufficiently specific. See Call,
153
In Camera Inspection
¶27 Finally, we note that the Register has asked us to rule that in
order to overcome the presumption of public access under the public records
law, a records custodian must ordinarily present the requested record for in camera judicial review, and the
Sheriff’s Department should have done so in the present case. The Sheriff’s Department responds that the
Register did not raise this issue below.
Generally, arguments raised for the first time on appeal are deemed
waived.
By the Court.—Order reversed.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] Two days earlier, the Sheriff’s Department denied the request orally.
[3] The fliers had been anonymously deposited into Shopper Stopper newspaper tubes.
[4] With certain limited exceptions not applicable in the present case, Wis. Stat. § 19.37(2)(a) provides for the award of reasonable attorney fees, damages of not less than $100, and other actual costs to the requester “if the requester prevails in whole or in substantial part” in an action filed under the public records law.
[5] The Register argues that it appears from the record that the Sheriff’s Department did not send the requested report to the district attorney’s office until after the Register made its request, and the Sheriff’s Department does not dispute this assertion. Because we conclude that the Sheriff’s Department’s obligation to respond to the request arises because it is an authority with an independent responsibility under the public records law, it does not matter for purposes of our analysis whether the Sheriff’s Department had yet transmitted a copy of the report at the time it responded to the public records request. The salient fact is that the Sheriff’s Department retained its own copy of the record at issue, which it concedes.
[6] The Sheriff’s Department does not argue that it is independently entitled to a common law exception for records forwarded to a district attorney’s office.
[7] In Nichols v. Bennett, the supreme court determined that a record is not automatically exempt under Foust simply because it is stored in a prosecutorial file. Nichols v. Bennett, 199 Wis. 2d 268, 274, 544 N.W.2d 428 (1996) (holding that documents responsive to a public records request seeking copies of prior public records requests to the district attorney’s office and the district attorney’s answers to those requests were not properly withheld from disclosure).
[8] But see Nichols, 199