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COURT OF APPEALS DECISION DATED AND RELEASED May 14, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1563
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
HERBERT L. FOBBS, JR.,
Petitioner-Respondent,
v.
PHILIP ARREOLA,
STANLEY OLSEN,
MICHAEL R. STRAMPE and
MILWAUKEE POLICE
DEPARTMENT,
Respondents-Appellants.
APPEAL from an order of
the circuit court for Milwaukee County:
JOHN J. DiMOTTO, Judge. Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
PER CURIAM. Philip Arreola, Chief of the Milwaukee
Police Department (MPD) appeals from an order granting Herbert L. Fobbs, Jr.'s
petition for a writ of mandamus after Fobbs's open records request for certain
police reports was denied.
Arreola claims the trial
court erred as a matter of law in applying §§ 19.31 to 19.39, Stats., to the undisputed facts. Because the trial court did not erroneously
exercise its discretion in balancing the interest of the public to be informed
on public matters against the harm to a victim's reputation which would likely
result from permitting inspection, we affirm.
I. BACKGROUND
On May 4, 1994, MPD
received an open records request from Fobbs requesting copies of police reports
filed by a Milwaukee police detective relating to his arrest and conviction for
first-degree sexual assault. Fobbs
claimed that 186 pages of reports existed in the police file based on a
notation made on the back side of the criminal complaint. MPD denied the request on the basis that it
does not release records relating to a sexual assault without a notarized
waiver from the victim. In response,
Fobbs filed a petition for a writ of mandamus seeking an order directing
Arreola, as the record custodian for MPD, to provide him with copies of the
requested records. At the mandamus
hearing, Arreola moved to quash Fobbs's petition. The trial court denied the motion and ordered Arreola to provide
Fobbs with copies of the police reports contained in the police file. Arreola now appeals.
II. STANDARD OF REVIEW
We review whether a
trial court erred in granting a writ of mandamus under the erroneous exercise
of discretion standard. Morrissette v.
De Zonia, 63 Wis.2d 429, 434, 217 N.W.2d 377, 380 (1974). Thus, we shall not reverse the trial court's
order if it “examined the relevant facts, applied a proper standard of law, and
using a demonstrated rational process, reached a conclusion that a reasonable
judge could reach.” Appleton
Post-Crescent v. Janssen, 149 Wis.2d 294, 302-03, 441 N.W.2d 255,
258 (Ct. App. 1989).
In a mandamus action to
gain access to public records covered under §§ 19.32 to 19.37, Stats., when the custodian of such
records specifically states reasons for refusing the request, the trial court
should apply a balancing test of whether or not the harm likely to result to
the public interest by permitting the inspection outweighs the benefit to be
gained by granting the inspection. State
ex rel. Youmans v. Owens, 28 Wis.2d 672, 681-82, 137 N.W.2d 470,
474-75 (1965), modified, 28 Wis.2d 672, 139 N.W.2d 241 (1966).
III. ANALYSIS
In the instant case, the
request for documents allegedly involved 186 pages of police reports. The trial court conducted a telephonic
hearing with Fobbs, an assistant city attorney, and Arreola's representative,
police officer Milton Reich, who directed the Open Records Section.[1] The transcript of the hearing demonstrates
the following. The file Fobbs requested
contained only seventy-eight pages of police reports. Officer Reich testified that when he receives a request for
documents relating to a sexual assault, the current policy is to deny the
request whether the case is open, pending or closed unless the victim has
signed a waiver. In contrast, Reich
indicated that if the request involved a burglary case, the request would be
granted if the case were closed.
The
trial court determined that Fobbs's case had been tried to a jury. The jury found him guilty and he was now
serving his sentence. The city attorney
explained that the reason for the policy was to prevent emotional distress and
the invasion of a victim's right to privacy.
The trial court stated, however, that the policy as applied to Fobbs
appeared to be in conflict with the Open Records Law of Chapter 19 of the
Wisconsin Statutes. The trial court
reasoned that the denial of Fobbs's request was particularly suspect because
the reports were undoubtedly provided to Fobbs's counsel in the criminal case,
the victim's name was contained in the criminal complaint, and the victim had
testified against Fobbs in open court.
Based on these factors, the trial court questioned whether any
legitimate concerns about confidentiality actually existed. The trial court concluded that no
satisfactory explanation or legal justification to deny Fobbs's request was
given in light of the aforementioned factors.
From this review of the
record, it is manifest from the dictates of Youmans that the
trial court balanced the interests of MPD in keeping the seventy-eight pages of
reports confidential verses the interests of the public to have access to
public records. In engaging in this exercise,
the trial court reached a very rational conclusion. The trial court did not erroneously exercise its discretion. We affirm its order.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.