60 Op. Att'y Gen. 470 (1971)
60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

Wisconsin Attorney General Opinions

31 December 1971.

Public Records.

Motor Vehicle Division.   (Formal)

Under Section 19.21(2), Stats., the right to
examine and copy records of the Division of
Motor Vehicles relating to the licensing and
regulation of motor vehicle dealers,
distributors and manufacturers under
Chapter 218, Stats., is not absolute
although there is a strong public policy
favoring public inspection.

Access may be denied where the custodian
determines that harm to the public interest
outweighs the presumptive benefits to the
public interest which would be accorded
by disclosure and gives specific
reasons therefor.

Where custodian in good faith determines
disclosure should be made there is little
likelihood that he could be held liable to
third parties, especially where records are
related to quasi-judicial or legislative
rule-making functions.

NORMAN M. CLAPP, Secretary,
Department of Transportation

You have requested my opinion whether the
Division of Motor Vehicles must grant access
to the public under Section 19.21(2), Stats.,
to files which are directly or indirectly
related to the licensing and regulation of
motor vehicle dealers, distributors and
manufacturers under Chapter 218, Stats.

Your letter states that:

   The public documents with which we are
   concerned are the unsolicited complaints
   which citizens and other entities make
   to our agency concerning their
   transactions or contacts of various
   kinds with automobile dealers.

   Some of these complaints deal with
   product quality and, therefore, reflect
   on the distributor or manufacturer.

   Each file contains the original
   complaint, the documents and records
   necessary to resolve the issue,
   including investigative reports of the
   enforcement officials involved and the
   final report resolving the complaint.

   Many of these files contain information
   which was given on a confidential basis
   to the investigators.

   We do know that a number of the original
   complaints were expressly provided in
   confidence to the Division.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

   On many others we feel there is a strong
   presumption that confidentiality is
   implied, but there is no showing
   of this on the record.

   All complaints are made without any
   statutory requirements incumbent upon
   the complainant, as best we can

Your first question is whether access for
examination and copying must be accorded
representatives of two private consumer

The reasons set forth in your letters and
quoted above would not, in my opinion,
justify withholding access to the
requested files.

I am of the opinion that access for
examination and copying must be accorded any
member of the public, regardless of his
motives, subject to the specific limitations
contained in Section 19.21, Stats., and the
common-law limitations which existed prior to
the adoption of Section 18.01(2), Stats.,
which is now Section 19.21(2), Stats.

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 470;

58 OAG 67 (1969).

Since a custodian is required to give
specific reasons in each case where a request
for access is denied, and since the reasons
must relate directly to the specific document
or record sought to be inspected, a
discussion of the general problem and
court-established guidelines follows.

Section 19.21(1), (2) and (4), Stats.,


   Each and every officer of the state, or
   of any county, town, city, village,
   school district, or other municipality
   or district, is the legal custodian of
   and shall safely keep and preserve all
   property and things received from his
   predecessor or other persons and
   required by law to be filed, deposited,
   or kept in his office, or which are in
   the lawful possession or control of
   himself or his deputies, or to the
   possession or control of which he
   or they may be lawfully entitled,
   as such officers.


   Except as expressly provided otherwise,
   any person may with proper care,
   during office hours and subject to such
   orders or regulations as the custodian
   thereof prescribes, examine or copy any
   of the property or things mentioned in
   Subsection 19.21(1).

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

   Any person may, at his own expense and
   under such reasonable regulations as the
   custodian prescribes, copy or duplicate
   any materials, including but not limited
   to blueprints, slides, photographs and

   Duplication of university expansion
   materials may be performed away from the
   office of the custodian if necessary. .


   Any person who violates this Section
   shall, in addition to any other
   liability or penalty, civil or criminal,
   forfeit not less than $25 nor more than
   $2,000; such forfeiture to be enforced
   by a civil action on behalf of, and the
   proceeds to be paid into the treasury of
   the state, municipality, or district, as
   the case may be."

In 54 OAG i, ix (1965) it is stated:

   . . The court [in State ex rel. Youmans,
   supra] further held that Section 18.01
   [now 19.21], defining public records,
   includes not only such books, papers and
   records as are required by law to be
   filed, deposited or kept by a public
   officer, but that the term "public
   records" includes as well all written
   memorials made by a public officer
   within his authority where such writings
   constitute a convenient, appropriate, or
   a customary method of discharging the
   duties of his office. .

Insofar as state records are concerned, the
definitions in Section 16.80(2)(a) and (b),
Stats., are important and provide:


   "Public records" means all books,
   papers, maps, photographs, films,
   recordings, or other documentary
   materials or any copy thereof,
   regardless of physical form or
   characteristics, made, or received
   by any agency of the state or its
   officers or employes in connection
   with the transaction of public business
   and retained by that agency or its
   successor as evidence of its activities
   or functions because of the information
   contained therein; except the records
   and correspondence of any member
   of the state legislature.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487


   "State agency" means any officer,
   commission, board, department or
   bureau of state government.

The files with which you are concerned are
public records, relate to the duties of the
Division of Motor Vehicles, and are open to
examination and copying during office hours
subject to limitation where the public
interest in nondisclosure outweighs the
strong public interest in full public access.

You do not claim nor have we been able to
find any statute which would limit the
right of access as to these records.

You are aware that in another area of your
responsibility a special statute, Section
346.73, Stats., provides for confidential
handling of written accident reports.

I am enclosing a copy of an opinion to the
Secretary of the Department of Natural
Resources, dated August 10, 1971, which
is concerned with limitations on the
right to inspect public records and
includes a Section on records received
under a pledge of confidentiality.

It is stated therein:

   I would suggest that the following
   criteria be considered, however, in
   deciding whether a particular pledge
   of confidentiality comes within the
   exception, and will, therefore,
   hold up in court.

   First, there must have been
   a clear pledge made.

   Second, the pledge should have been made
   in order to obtain the information.

   Third, the pledge must have been
   necessary to obtain the information.

   Finally, even if a pledge of
   confidentiality fulfills these criteria,
   thus making the record containing the
   information obtained clearly within the
   exception, the custodian must still make
   an additional determination in each
   instance that the harm to the public
   interest that would result from
   permitting inspection outweighs the
   great public interest in full inspection
   of public records. . . .

With respect to the files involved in your
questions, no pledge was given by
department officers or employes.

An official pledge of confidentiality would
not, therefore, be a proper reason to
deny examination or copying.

There may be valid reasons, not stated in
your letter, why the custodian of the
records involved should deny access.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

The reason for denial may vary
from case to case.

At pages 682-683 of Youmans,
the court stated:

   We deem it unwise to attempt to catalog
   the situations in which harm to the
   public interest would justify
   refusal to permit inspection.

   It is a subject which had best be
   left to case-by-case decision.

   The duty of first determining that the
   harmful effect upon the public interest
   of permitting inspection outweighs the
   benefit to be gained by granting
   inspection rests upon the public officer
   having custody of the record or
   document sought to be inspected.

   If he determines that permitting
   inspection would result in harm to
   the public interest which outweighs
   any benefit that would result from
   granting inspection, it is incumbent
   upon him to refuse the demand for
   inspection and state specifically
   the reasons for this refusal.

   If the person seeking inspection
   thereafter institutes court action
   to compel inspection and the officer
   depends upon the grounds stated in
   his refusal, the proper procedure
   is for the trial judge to examine
   in camera the record or document
   sought to be inspected.

   Upon making such in camera examination,
   the trial judge should then make his
   determination 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 inspection.

   In reaching a determination so based
   upon a balancing of the interests
   involved, the trial judge must ever
   bear in mind that public policy favors
   the right of inspection of public
   records and documents, and, it is
   only in the exceptional case that
   inspection should be denied.

In situations, such as in the instant case,
where inspection is sought of a number of
documents, the ultimate decision after
conducting the balancing test might be to
grant inspection as to certain of the
documents and deny it as to others.

If a single record of document is sought to
be inspected, and disclosure of only a
portion is found to be prejudicial to the
public interest, the trial judge has the
power to direct such portion to be taped over
before granting inspection."


Beikon v. Emery (1967),
36 Wis.2d 510,
153 N.W.2d 501,

which was concerned with the refusal of a
chief of police to permit examination of a
traffic citation by the attorney for the
person involved, the court held that a
specific reason must be given for each

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

Although no reason was given at the time,
it was later contended that the reports
were "confidential" and it was "contrary
to the public interest" that the
reports be made public.

The court stated that these were legal
conclusions and were not a substitute for
specific reasons which might well have been
available in that instance and must be given
so that a court, if need be, may determine
whether the reasons given would cause harm to
the public interest that would outweigh the
presumptive benefit to be derived from
granting inspection.

In Youmans, the court stated that Section
19.21, Stats., will be construed in pari
materia with Section 66.77, Stats., and that
the policy guidelines for holding closed
meetings set forth in Section 66.77(3),
Stats., will be applicable to the question of
confidentiality of records under Section

Section 66.77(3), Stats., provides:


   Nothing herein contained shall prevent
   executive or closed sessions for
   purposes of:


   Deliberating after judicial or
   quasi-judicial trial or hearing;


   Considering employment, dismissal,
   promotion, demotion, compensation,
   licensing or discipline of any public
   employe or person licensed by a state
   board or commission or the investigation
   of charges against such person, unless
   an open meeting is requested by the
   employe or person charged, investigated
   or otherwise under discussion;


   Probation, parole, crime
   detection and prevention;

   Deliberating or negotiating on the
   purchasing of public property, the
   investing of public funds, or conducting
   other public business which for
   competitive or bargaining reasons
   require closed sessions;


   Financial, medical, social or personal
   histories and disciplinary data which
   may unduly damage reputations;


   Conferences between any local government
   or committee thereof, or administrative
   body, and its attorney concerning the
   legal rights and duties of such agency
   with regard to matters within its

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

The 66.77(3)(c) Exception

Some of the records with which you are
concerned may relate to violations
of the criminal law.

If a criminal prosecution has been commenced
in which the record may be directly involved,
the rules of criminal discovery or disclosure
may apply to that record and the custodian
should deny all access until he receives
the prosecuting attorney's instructions
regarding the record in question.

State v. Miller (1967),
35 Wis.2d 454,
151 N.W.2d 157;

State v. Chacon (1971),
50 Wis.2d 73,
183 N.W.2d 84; Section 971.23, Stats.

Where no action has been commenced, but where
prosecution is imminent (such as after the
decision to prosecute has been made but the
necessary papers have not yet been drawn up),
the same course of action should be followed.

Where a record involves a potential criminal
prosecution, but a determination to prosecute
has not yet been made, several other factors
might enter into a decision of whether
or not to deny inspection.

One such factor would be the amount of time
elapsed since the receipt of the complaint
or other information in the record
relating to the criminal offense.

As a general proposition, the longer the time
that has elapsed, the less likely is there
to be an overriding public interest in
refusing inspection.

Another important factor is the probability
of criminal prosecution.

The less probable the prosecution, then the
less likely, again, that the public interest
in non-inspection outweighs the public
interest in free access to all public

Another factor that may enter into the
determination is whether there exists a
public need for information on a pressing
public problem, particularly when the problem
is one of great importance.

Another important factor is whether there
is a substantial probability that inspection
may interfere with the prosecution of the
criminal violation.

See discussion infra on interference
with investigation of licensing or
disciplinary proceedings.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

The factors discussed above are illustrations
of the kinds of factors that should enter
into a custodian's decision as to whether to
deny access on the grounds that the records
relate to a potential criminal prosecution,
and that the public interest in maintaining
secrecy during the investigation outweighs
the public interest in free access to all
public records.

They are intended as examples of practical
considerations that a reviewing court may
give weight to in an action to mandamus the
records, and are not intended to be an
exhaustive list of factors.

Finally, these factors are suggested from a
pragmatic rather than a legal viewpoint, and
I do not claim any specific legal authority
for the use of any particular factor.

The 66.77(3)(e) Exception

The court has already spoken strongly on this
exception in the Youmans case, and has placed
great emphasis on the fact that damage to
reputations must be "undue."

We determine that this legislative policy of
not disclosing data which may unduly damage
reputations carries over to the field of
inspection of public records and documents.

The statutory word "unduly" is significant.

   As applied to inspection it does not bar
   all inspection of public records and
   documents that might damage reputations,
   but requires a balancing of the interest
   of the public to be informed on public
   matters against the harm to reputations
   which would likely result from
   permitting inspection.

   In the instant situation the public
   interest to be served by permitting
   inspection is to inform the public
   whether defendant mayor has been
   derelict in his duty in not instigating
   disciplinary proceedings against
   policemen because of wrongful conduct
   disclosed in the report.

   If the report contains statements of
   persons having first-hand knowledge,
   which disclose police misconduct, the
   fact that reputations may be damaged
   would not outweigh the benefit to the
   public interest in obtaining inspection.

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672 at 685.

The court did indicate, however, that
protection against undue damage to
reputations would be an appropriate
reason for denial of access to public
records under some circumstances:

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

   . . On the other hand statements based
   upon hearsay or suspicion, or
   inconclusive in nature, would be of
   small public benefit if made public, and
   might do great harm to reputations.

State ex rel. Youmans v. Owens,
supra, at Page 685.

The statements referred to in Youmans were
sworn statements before a grand jury, and,
consequently, it appears that the court
realized that such statements would be given
a great amount of credibility by the public;
unsworn statements or complaints, which
ordinarily carry much less credibility, may
not constitute such a great danger to
reputations as in the Youmans case.

It would appear then, that in a determination
to deny access on the grounds that it would
cause undue harm to reputation, the potential
credibility of the document, in both a legal
and a pragmatic sense, would be an important
factor to consider as it relates to the
amount of potential harm to reputation.

The 66.77(3)(b) Exception:

A very closely related exception to the
requirement of free public access to public
records raised by your letter involves

   ". . licensing or discipline of any . .
   person licensed by a state board or
   commission or the investigation of
   charges against such person . ."

Section 66.77(3)(b), Stats.

The Supreme Court, in the Youmans case, seems
to have implied that where public access to
records might interfere with an existing
investigation or pending licensing or
disciplinary proceeding, a custodian may
validly deny inspection on that basis.

   No claim has been made that the
   investigation of the Waukesha police
   department is still continuing, or that
   inspection of the report would interfere
   with any contemplated disciplinary

State ex rel. Youmans v. Owens, supra,
at Page 685.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

Thus the court implies that interference with
a contemplated disciplinary proceeding would
be grounds for determining that the public
interest in nondisclosure outweighs the
public interest in free access to public

It is my opinion, however, that the mere
existence of an investigation pursuant to
such licensing or regulatory authority is
not, by itself, sufficient grounds to deny
access to public records.

Rather, inspection should be denied only when
it would substantially interfere with the
carrying out of the investigation or
licensing or disciplinary proceedings.

Examples of such circumstances might be where
inspection might disclose the identity of an
informant or where a complainant fears

Another circumstance where denial of
inspection may be in the public interest is
where premature disclosure of the contents
may mean the loss of evidence or will cause
the person or persons under investigation to
flee the State.

One possible circumstance that is related to
both the 66.77(3)(b) and 66.77(3)(e)
exceptions is when charges are filed with
an agency that may be malicious or false.


Schier v. Denny (1961),
12 Wis.2d 544,
107 N.W.2d 611,

an action by a real estate broker for
malicious prosecution against a person
who had complained to the Wisconsin Real
Estate Brokers' Board where charges were
dismissed after hearing, the court stated
at pages 550-551:

   After most careful consideration we have
   concluded that the public interest, of
   fostering the free filing of complaints
   with administrative agencies with
   respect to improper business or
   professional conduct without being
   subjected to reprisal in the form of
   damages exacted in a suit for malicious
   prosecution, outweighs the competing
   private interest of compensating a
   person whose business or profession has
   been injured by the malicious filing of
   unwarranted charges.

   In reaching such conclusion, we are not
   unmindful that the same reason advanced
   to support it would also be applicable
   to suits for malicious prosecution
   grounded on unsuccessful criminal

   However, we think there are distinctions
   existing between administrative-agency
   proceedings and criminal prosecutions
   that justify the difference in result.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

   In the first place, arrest of the person
   is ordinarily a concomitant of a
   criminal prosecution.

   Secondly, administrative agencies
   usually possess the power to hold a
   filed complaint confidential and not
   make public disclosure of the same until
   the agency has made a preliminary
   investigation and has determined that
   the same possesses some likelihood of
   being meritorious.

   If there are agencies which lacks such
   power and discretion, the legislature
   can confer the same by appropriate

   On the other hand, as soon as a criminal
   information or indictment has been filed
   in a court of record, it is a public
   record available to inspection and
   publicizing by anyone who cares to do

   Because of the conclusion so reached, we
   hold that, unless the proceeding
   instituted before an administrative
   agency causes the agency to take some
   action that directly interferes with the
   person or property of the party
   complained against, there can be no
   special damages recoverable in an action
   of malicious prosecution grounded on
   such proceeding.

It can be seen, from the sentences emphasized
above, that the court has not determined
whether administrative agencies in
Wisconsin possess the power to deny access
to filed complaints pending an initial
determination that there is some
likelihood of merit to them.

My advice is that if a complaint is filed
with the division that, on its face, provides
a strong reason or reasons for believing that
it is malicious or false, it would be proper
to deny access to that complaint pending an
initial investigation.

Such investigation should then proceed
at an accelerated rate.

If evidence is uncovered showing that the
complaint has some merit, then it should
be treated as any other complaint.

If, however, conclusive evidence of falseness
or maliciousness is obtained, a final report
to that effect should be prepared and
inserted into the file and the
matter be closed.

Inspection of the complete file could then be
permitted, including the original complaint
and conclusion of the department.

The overriding policy dictates that most
public records, including most filed
complaints, will ordinarily be open
to public inspection.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

That policy was succinctly expressed by the
court in the Youmans case:

   . . the public interest to be served by
   permitting inspection is to inform the
   public whether defendant mayor has been
   derelict in his duty in not instigating
   disciplinary proceedings against
   policemen because of wrongful conduct
   disclosed in the report. .

28 Wis.2d at 685.

Applied to the situation at hand, this means
that the overriding public interest in free
access to the records of your department is
to provide the public, and any member
thereof, the means to determine whether the
division has adequately carried out its
duties of regulation and licensing.

Understandably, an agency may not welcome
continual, close scrutiny into the everyday
conduct of its affairs, but the work of the
newly emerged public interest groups composed
primarily of private citizens interested in
protecting the consumer, the environment, the
automobile driver, etc., has again
demonstrated that such scrutiny can have a
salutary effect on government, by providing
impetus for stronger laws, by supporting
agencies in their attempts at vigorous
regulation in the public interest, by
prodding other agencies into more vigorous
action, and by counterbalancing the continual
pressure of lobbyists representing the
regulatees to which many agencies are

The reasons set forth in Section 66.77(3),
Stats., are not all-inclusive insofar as
Section 19.21(2), Stats., is concerned.

At common law, certain other exceptions were
recognized, including secrets of State such
as diplomatic correspondence and certain
police or prosecution records including
reports of voluntary informers of crimes.

41 OAG 237 (1952).

International Union v. Gooding (1947),
251 Wis. 362, 372,
29 N.W.2d 730,
it is stated:

   It is enough to say that there are
   numerous limitations under the common
   law upon the right of the public to
   examine papers that are in the hands of
   an officer as such officer.

   Documentary evidence in the hands of a
   district attorney, minutes of a grand
   jury, evidence in a divorce action
   ordered sealed by the court are typical.

The general reasons set forth in Section
66.77(3), Stats., however, are the primary
bases upon which you should rely in
determining specific reasons in each case
should you consider it necessary to deny a
request for examination and copying.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

It is up to the custodian to determine and
give specific reasons in each case of denial.

It is up to the court to determine the worth
of the specific reasons given where mandamus
is sought.

Since the expressed legislative policy is
weighted heavily in favor of free access and
since Section 19.21(4), Stats., provides for
a forfeiture for wilful denial of access,
requests for examination and copying  should
be granted under reasonable regulations
except in those cases where the custodian in
good faith believes that disclosure would
cause harm to the public interest which would
outweigh the benefit to be derived from
granting inspection.

These requirements place a great burden on
the custodian in a department as large as
yours and necessitate administrative controls
as to filing methods and chain of
responsibility so that prompt determinations
may be made when requests for examinations
are presented.

In some cases requests are made
to examine specific files.

In other cases the request may be to
conduct a search in a given area.

Section 19.21(2), Stats., contemplates that
the citizens have the right to do either.

It is suggested that files regarding which
public inspection is questionable,
if there are any, be "flagged."

Where that is done, the secretary or other
staff member can, upon request for
examination, bring the matter to the
attention of the custodial officer, who
should make a determination at that time as
to whether there are valid specific reasons
why examination should be denied.

Your second question is whether the division
is obligated to make a search of its records
and supply the name, address and nature of
complaints to a citizen.

The answer to this question
is in the negative.

The custodian is not required by
Section 19.21, Stats., to make a
search or compile a list or report.

52 OAG 8 (1963).

A search may be necessitated in connection
with a request made under Section

889.09, Stats., in connection with licensing
matters, or documents required by law to be
recorded or filed so that a certificate of
nonfiling may be issued.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

Section 889.08(2), Stats., provides that both
you as secretary and the head of the Motor
Vehicle Division are legal custodians.

Searches can, of course, be made as a
matter of accommodation or security.

Section 19.21(2), Stats., grants any person
the right to copy or duplicate any
materials, at his own expense.

Any person may also, upon tender of the legal
fee, require the custodian to furnish
certified copies of official records
under Section 889.18, Stats.

It is my opinion that, where no fee is
established by law, the custodian can
ascertain and charge actual or a reasonably
estimated cost of reproduction.

59 OAG 145, 147, 148 (1970).

Your third question is whether there is any
legal liability on the part of custodial
officers for permitting access to records
which are not confidential by statute
but which, if disclosed, might
damage reputations.

As stated in Youmans, at pages 682-685, the
fact that permitting examination might or
would damage reputations is not a
sufficient ground to deny access.

It is only where the custodian determines
that permitting examination would unduly
damage reputation is it

   incumbent upon him to refuse the
   demand for inspection and state
   specifically the grounds for refusal.

A custodial might in good faith determine
that the benefits of permitting inspection
outweighed the harmful effect on the public
interest in permitting inspection even in a
case where he was aware that certain parts of
a document were false.

Since the legislative intent is heavily
weighted in favor of permitting access, since
Section 19.21(4), Stats., provides a penalty
in the form of a forfeiture for unreasonable
denial of examination, and since Section
889.18(3), Stats., provides an additional
forfeiture for unreasonable refusal to make
copies, it is difficult to conceive of a
situation where a court would impose any
civil liability upon a custodian who
acted in good faith in permitting
examination and copying.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

Insofar as the records involved relate to the
licensing functions of the division and may
be the basis for an investigation and hearing
as to whether motor vehicle dealers,
distributors and manufacturers should be
entitled to continued licensing, it can be
argued that the division is engaged in
quasi-judicial functions.

In Schier v. Denny, supra, at page 551, the
court suggested that the commencement of an
administrative-agency proceeding may be the
date of filing of the citizen's complaint.

The preliminary investigation period may,
therefore, be a part of the proceeding
before the administrative agency and
absolutely privileged.

In such case the privilege or immunity
would extend to the agency as well
as the complainant.

Certain of the files may relate to the
exercise of the limited legislative
power you possess.

Investigations and hearings incident to the
exercise of the power to promulgate rules
and regulations under Section 218.01(5),
Stats., are also privileged.

In Baker v. Mueller (1954), 127 F.Supp. 722,
it was held that officials in the exercise of
legislative or quasi-judicial duties, acting
within their jurisdiction, are not liable for
damages either for mistake, errors of
judgment or corrupt conduct, and the
fact that an officer acted maliciously
could not be inquired into.

The decision was largely based on

Wasserman v. Kenosha (1935),
217 Wis. 223,
258 N.W. 857,

which involved issuance and allegedly
malicious and improper cancellation
of a building permit.

The Wasserman case was quoted
with approval in

Bendorf v. Darlington (1966),
31 Wis.2d 570, 578,
113 N.W.2d 419.

Good-faith acts of principal-State executive
officers are accorded absolute privilege
in the exercise of their duties.

Ranous v. Hughes (1966),
30 Wis.2d 452, 464, 465,
141 N.W.2d 251.

Ranous was an action for libel by a school
teacher against a school board member for
publication of allegedly defamatory material.

The court stated that while ordinarily a
public officer is not liable in a private
action for acts performed in good faith
within the scope of his authority,
he may be held liable for injuries
resulting from his torts.

60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487

At pages 464-465, the court stated:

   . . It is a general rule that absolute
   privilege is accorded principal federal
   or state executive officers in the
   exercise of their duties.

   However, when considering the lower
   strata of executive officials such as
   defendant the majority of courts have
   concluded that such officials are not
   entitled to an absolute privilege, but
   only a conditional privilege, although
   there are authorities according absolute
   privilege to minor officials. .

At pages 466-467, the court stated:

   In determining the scope of the
   privilege to be accorded public
   officials while acting in an
   executive or administrative capacity
   competing values exist:

   (1) of insuring that government
   officials not to be deterred from
   performing their public duties in fear
   of being held individually liable for
   what they may say or publish, and

   (2) of protecting private citizens from
   having their private or professional
   reputations damaged by defamatory
   matter uttered or published
   by public officials.

   Giving due weight to these competing
   values, we feel that with respect to all
   but executive officers in the higher
   echelons of government the according of
   conditional privilege rather than
   absolute privilege is preferable.

   Therefore we conclude that school board
   members do not fall within the category
   of high ranking executive officials of
   government whose defamatory acts should
   be accorded absolute privilege.

   We also conclude, however, that the
   defense of conditional privilege is
   available to defendant.

(Authority cited in footnote omitted.)

The conditional privilege which protects
lesser officials may be lost by abuse
and the supreme court adopted the
Restatement rule as to loss.

At page 468 of Ranous the court stated:

   The Restatement further lists the four
   conditions which may constitute an abuse
   of the privilege, and the occurrence of
   any one causes its loss.

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       471 473 475 477 479 481 483 485 487

These are:


   The defendant either did not believe
   in the truth of the defamatory matter
   or, if believing the defamatory
   matter to be true had no reasonable
   grounds or so believing


   because the defamatory matter was
   published for some purpose other
   than that for which the particular
   privilege is given;


   because the publication was made to
   some person not reasonably believed
   to be necessary for the accomplishment
   of the particular privilege; or


   because the publication included
   defamatory matter not reasonably
   believed to be necessary to
   accomplish the purpose for which
   the privilege is given.

(Authorities cited in footnotes omitted.)

Legal custodians are also protected in
good-faith execution of their duties by
reason of the following statutes.

Section 165.25(6), Stats., requires the
attorney general, at the request of the
department head and approval by the governor,
to appear for and defend State officers and
employes of departments charged with the
enforcement of laws, in tort actions.

Section 270.58(1), Stats., provides that the
State shall pay judgments taken against State
officers and employes pertaining to carrying
out of their duties where the court or jury
finds that they acted in good faith.

Where a State officer is involved, the
additional defense of lack of consent, by the
state, to be sued would also be available.

A suit against a State officer in
his official capacity or for acts
performed in his official capacity
is a suit against the State.

Kenosha v. State (1967),
35 Wis.2d 317, 323, 324,
151 N.W.2d 36.

Wisconsin Desert Horse Association
and Wisconsin Exposition Department (1969),
42 Wis.2d 414, 424,
167 N.W.2d 425.

Chart v. Gutmann (1969),
44 Wis.2d 421, 426, 427,
171 N.W.2d 331.


60 OAG 470 472 474 476 478 480 482 484 486
       471 473 475 477 479 481 483 485 487