67 Op. Att'y Gen. 12 (1978)
 
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OPINION NO. OAG 4-78,

Wisconsin Attorney General Opinions

25 January 1978

Blood Tests;
Police;
Public Records;
Sheriffs;

Sheriff's radio log, intradepartmental
documents kept by sheriff and blood test
records of deceased automobile drivers in
hands of sheriff are public records subject
to inspection and copying under Section
19.21(2), Stats., and subject to limitations
contained in court cases cited which place
duty on custodian to withhold disclosure
where substantial harmful effect upon the
public interest would result.

Specific reason for withholding must be given
which may be tested by mandamus in the
courts.

Such records do not appear to be records
required by law to be kept by sheriff.

Where records are required by law to be kept
by sheriff, right of inspection exists under
Section 59.14(1), Stats.

That portion of 41 Op. Att'y Gen. 237 (1952)
inconsistent with this opinion is repudiated.

GERALD K. ANDERSON,
District Attorney, Waupaca County

You request my opinion whether the sheriff's
radio log and other intradepartmental
documents kept by the sheriff are public
records subject to inspection and copying
by the general public.

It is my opinion that they are public records
within the meaning of Section 19.21(1),
Stats., and are subject to inspection and
copying by any member of the public pursuant
to Section 19.21(2), Stats., subject to the
limitations contained in

State ex rel. Youmans v. Owens,
28 Wis.2d 672,
137 N.W.2d 470 (1965),
139 N.W.2d 241 (1966), and

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

even though they are not records,

   "books and papers required by
   law to be kept in his office"

and are not subject to the statutory right of
inspection and copying by any person under
the provisions of Section 59.14(1), Stats.

See

State ex rel. Journal Co. v. County Court,
43 Wis.2d 297,
168 N.W.2d 836 (1969).

Section 59.14(1), Stats., applies to
county officers, including the sheriff,
and provides in part:

59.14(1)

   . . . All such officers shall keep
   such offices open during the usual
   business hours each day . . . and
   with proper care shall open to the
   examination of any person all books
   and papers required to be kept in
   his office and permit any person
   so examining to take notes and
   copies of such books, records,
   papers or minutes therefrom. .

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I am of the opinion that the words

   "required to be kept"

are used in the restrictive sense, that is,

   "required by law to be kept."

If an express statute requires the sheriff
to keep a certain book or document in
his office, there is a clear right of
inspection and copying in any person.

The register of prisoners committed to jail,
sheriff's docket, daily jail records and cash
books are examples of books or papers
required by law to be kept in his office.

See Section 59.23(2) and (8), Stats., and
41 Op. Att'y Gen. 237, 243 (1952),
for definition of what is included in a

   "sheriff's dockets."

State ex rel. Journal Co. v. County Court,
supra, holds that where documents are in the
hands of a county officer covered by Section
59.14(1), Stats., and "required to be kept in
his office," there is a right of inspection
in any person; that such right is subject
only to the limitation in the statute itself;
and that the document need not be filed
to be subject to the statute.

The court relied heavily on
Hanson v. Eichstaedt,
69 Wis. 538,
35 N.W. 30 (1887),
which interpreted Section 59.14, Stats.,
which was adopted in 1849, and which
has been substantially in its present
form since the Hanson decision.

In 41 Op. Att'y Gen. 237 (1952), it was
stated that notwithstanding sections 18.01
[19.21], 59.14(1) and 59.23, Stats., the
public enjoys no right of inspection of
telephone and radio logs, criminal complaint
and investigation reports or other
internal documents in the office of sheriff.

The opinion interpreted the language in
Section 59.14(1), Stats., "required to be
kept" as "required by law to be kept."

I am in agreement with that
portion of the opinion.

However, the portion of the opinion which
implies that inspection of the documents
involved can be denied, in blanket, even in
view of the provisions of Section 19.21(1)
and Section 19.21(2), Stats., is inconsistent
with later-decided cases of Youmans, Beckon
and Journal, supra, and, in my opinion,
is incorrect.

The most recent case involving county records
does not mention Section 59.14(1), Stats.,
but was concerned with Section 19.21, Stats.

Citing Beckon v. Emery, supra,
the court stated:

This court has previously noted that the
"public policy, and hence the public
interest, favors the right of inspection
of documents and public records.

State ex rel. Dalton v. Mundy,
80 Wis.2d 190, 196,
257 N.W.2d 877 (1977).

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Subsections (1) and (2) of Section 19.21
Stats., provide:

19.21(1) 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.

19.21(2)

   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).

   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 drawings.

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

The radio logs and intradepartmental
documents you refer to are in the lawful
possession of the sheriff or his deputies.

I am unaware of any statute which would
make the documents confidential or
absolutely privileged.

Section 349.19, Stats., makes certain
accident reports confidential; however, your
inquiry is not concerned with that type of
document. In the absence of statutory or
constitutional exception, the disclosure
requirements of Section 19.21(2), Stats.,
which are subject to the limitations
contained in the Youmans and Beckon
cases, supra, apply.

This does mean however, that the documents
are subject to automatic or full disclosure.

The sheriff as custodian has a right and duty
to determine whether there is a public
interest in withholding partial or total
inspection which is paramount to the
stated statutory public interest
permitting inspection.

In such case such officer must give specific
reasons for refusal, and the person seeking
inspection can then resort to a mandamus
action to test the reason.

63 Op. Att'y Gen. 400, 405-406 (1974),

contains a summary of the criteria to be
considered by the custodian in making a
determination to permit or deny public access
to records.

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Please refer to that opinion and to
65 Op. Att'y Gen. 31 (1976).

The pendency of criminal prosecution or the
investigation of incidents which might result
in prosecution would in most cases justify
denial of inspection on a case-by-case basis.

Denial may also be appropriate where there
are unsubstantiated charges which might
unduly harm the person or persons involved,
if disclosed. Care must also be taken to
guarantee an accused a fair trial.

You also inquire:

   Are there ". . . any restraints on a
   Sheriff or Police Department voluntarily
   discussing the results of blood tests
   taken from deceased automobile drivers,
   where in a specific case the
   investigation appears to be concluded,
   and there is a great curiosity in the
   community as to the results of the
   activities of the deceased driver
   as they relate to the cause
   of the fatal accident?

Neither Section 343.305(6), Stats., which
concerns the admissibility of the test in
court, nor Section 885.235, Stats., which
concerns evidentiary weight given the tests,
contain any provision requiring a sheriff to
keep the results of such tests from public
inspection.

I can find no other statutory provision which
exempts such tests from public inspection.

It is my opinion that the sheriff has a duty
as custodian of the test report document to
determine whether there is a public interest
in withholding inspection which is paramount
to the provision in Section 19.21(2), Stats.,
permitting inspection.

If the investigation is completed and no
motor vehicle ordinance or statutory
violation prosecution is contemplated, there
would in most cases be no valid reason for
denying inspection and discussion would be
likewise appropriate.

In 59 Op. Att'y Gen. 226 (1970), it was
stated that blood test records in the hands
of the coroner are public records subject to
inspection and copying under Section 19.21,
Stats., but that the coroner could refuse
public access if he determined that the
harmful effect of publication would outweigh
the benefit to be gained by making the
information available.

He would be required to state a specific
reason for nondisclosure which could be
tested in the courts.

The same answer applies to the sheriff.

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BCL:RJV