74 Op. Att'y Gen. 4 (1985)
 
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OPINION NO. OAG 2-85,

Wisconsin Attorney General Opinions

10 January 1985

Public Records;

Prosecutors' case files are not subject
to access under the public records laws.

BARTLEY G. MAUCH,
District Attorney Sauk County

In your letter of November 17, 1983, you
express concern about access by the public to
investigative reports in the prosecutor's
office relating to alleged matricide and two
counts of sororicide.

In effect, your letter asks for my opinion as
to the extent to which prosecutors' files are
subject to inspection under the public
records law.

 
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19.35(1) RIGHT TO INSPECTION.

19.35(1)(a), Stats., states:
             Access to records; fees.

Except as otherwise provided by law, any
requester has a right to inspect any record.

Substantive common law principles construing
the right to inspect, copy or receive copies
of records shall remain in effect.

The exemptions to the requirement of a
governmental body to meet in open session
under Section 19.85 are indicative of public
policy, but may be used as grounds for
denying public access to a record only
if the authority or legal custodian under
Section 19.33 makes a specific demonstration
that there is a need to restrict public
access at the time that the request to
inspect or copy the record is made.

As stated in one of our recent opinions,
73 Op. Att'y Gen. 20-21 (1984) at 1-2:

This provision recognizes three possible
bases for denying access to public records:

(1)  express statutory exemptions;

(2)  exemptions under the open meetings law
     if the requisite demonstration
     is made; and

(3) common law principles.

The crux of the common law on public records
is the "balancing test" which provides that
the custodian "must balance the harm to
the public interest from public examination
of the records against the benefit to the
public interest from opening these records
to examination, giving much weight to the
beneficial public interest in open public
records."

State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539, 553,
334 N.W.2d 252 (1983).

The common law also recognized some
limitations on the public's right of access
to public records.

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

A.   Express statutory exemptions.

     Section 19.36(1), Stats., provides:

     APPLICATION OF OTHER LAWS.

     Any record which is specifically
     exempted from disclosure by state or
     federal law or authorized to be exempted
     from disclosure by state law is exempt
     from disclosure under Section 19.35(1),
     except that any portion of that record
     which contains public information is
     open to public inspection as provided in
     subsection 19.35(6).

 
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There is no statute specifically exempting
prosecutors' files from disclosure.

Therefore, section 19.36(1) is not available
as a basis for generally denying access to
such records under the public records law.

Section 19.36(2) establishes a categorical
exemption for "investigative information
obtained for law enforcement purposes. ."

if secrecy is required by federal law or
regulations or as a condition to
receipt of aids by this state.

I am not aware of any federal law that would
trigger the application of this subsection.

B.   Exemptions under the open meetings law.

     It is probable that most papers in a
     prosecutor's file arguably fall within
     the purview of the exemptions to the
     open meetings law set forth in
     sections 19.85(1)(d), (f) and (g).

They authorize a closed meeting
for the purpose of:

19.85(1)(d)

     Considering specific applications of
     probation or parole, or considering
     strategy for crime detection or
     prevention. . . . .

19.85(1)(f)

     Considering financial, medical,
     social or personal histories or
     disciplinary data of specific
     persons, preliminary consideration
     of specific personnel problems or
     the investigation of charges
     against specific persons except
     where paragraph 19.85(1)(b)
     applies which, if discussed in
     public, would be likely to have a
     substantial adverse effect upon the
     reputation of any person referred
     to in such histories or data, or
     involved in such problems or
     investigations.

19.85(1)(g)

     Conferring with legal counsel for the
     governmental body who is rendering oral
     or written advice concerning strategy to
     be adopted by the body with respect to
     litigation in which it is or is likely
     to become involved.

However, the fact that a record falls within
the purview of an exemption to the open
meetings law is not determinative.

Section 19.35(1)(a) requires in addition that
the custodian make "a specific demonstration
that there is a need to restrict public
access at the time that the request to
inspect or copy the record
is made."

We have recently interpreted this statute
as follows:

     The statute recognizes that in the
     exemption provisions the Legislature
     has identified categories of sensitive
     information, but the Legislature has
     not mandated that all such information
     be withheld all the time.

 
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     In my opinion the exemptions under
     section 19.85 may not be used as the
     basis for general blanket exceptions
     under the public records law.

     When exemptions to the open meetings law
     are relied on, section 19.35(1)(a)
     requires a case-by-case determination
     with respect to each request as of
     the time of the request.

     Any blanket custodial policy would
     be contrary to this requirement.

     73 Op. Att'y Gen. 20 (1984) at 3.

C.   Common law principles.
     Discussing the earlier Gooding case
     which construed the first general public
     record statute enacted in 1917, the
     supreme court stated the following in
     State ex rel. Youmans v. Owens,
     28 Wis.2d 672, 680-81,
     137 N.W.2d 470,
     139 N.W.2d 241 (1965):

However, merely because the papers sought to
be inspected, although not required by law to
be filed or kept by defendant, were in his
lawful possession, did not automatically
entitle petitioner to inspect them.

The inspection provisions of Section 18.01(1)
and Section 18.01(2), Stats., were contained
in a *revisor's bill and prior to that
enactment there existed no statute which
attempted to spell out the rights of members
of the public to inspect public records.

The revisor's notes to subsection 18.01(2) of
Section 18.01 stated that this subsection

     is believed to give expression to the
     general implied right of the public to
     consult public records.

The court in the Gooding Case quoted this
statement and then declared:

     In view of the presumption that a
     revisor's bill is not intended to change
     the law we conclude that this is the
     scope of the section.

     While it is possible to contend that
     the words are so clear as not to be
     subject to construction we are of the
     view that the common-law right of the
     public to examine records and papers
     in the hands of an officer has
     not been extended.

     We shall not go into the scope of
     the common-law right exhaustively
     or attempt to document our observations
     upon it.

     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 list could be expanded but the
     foregoing is enough to illustrate that
     in certain situations a paper may in the
     public interest be withheld from public
     inspection.

 
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     Whatever limitations existed at
     common law still exist under
     Section 18.01(2), Stats."

An authoritative statement of the common-law
right of inspection of public documents is
that made by the Vermont court in
Clement v. Graham as follows:

     We think it may be safely said that at
     common law, when not detrimental to the
     public interest, the right to inspect
     public records and public documents
     exists with all persons who have a
     sufficient interest in the
     subject-matter thereof to
     answer the requirements
     of the law governing
     that question.

Thus the right to inspect public documents
and records at common law is not absolute.

There may be situations where the harm done
to the public interest may outweigh the right
of a member of the public to have access to
particular public records or documents.

Thus, the one must be balanced against the
other in determining whether to permit
inspection.

The preservation of common law limitations
is codified in the most recently enacted
public records statutes.

Section 19.35(1)(a) reads in part:

RIGHT TO INSPECTION.

19.35(1)(a)

     Except as otherwise provided by law,
     any  requester has a right to inspect
     any record. Substantive common law
     principles construing the right to
     inspect, copy or receive copies of
     records shall remain in effect.

As noted by the court in Youmans above,
one example of a common law limitation is
documentary evidence in the hands of a
district attorney.

28 Wis.2d at 680.

Also, Gooding, 251 Wis. at 372.

This limitation on the public records
law was also acknowledged at

68 Op. Att'y Gen. 17, 19 (1979),
although that opinion dealt with
the issue of preservation of
public records and not access.

As examples of public records that needed to
be preserved, the opinion cited "statements
of witnesses, reports of scientific testing,
charging documents, transcripts, motions with
supporting affidavits and legal memoranda and
written decisions of the court." The opinion
continued:

In identifying these documents as public
records I do not mean to intimate that they
necessarily are open to public inspection.

It long has been the rule that documentary
evidence in the files of a district attorney
constitutes an exception to the rule
permitting citizens to inspect
papers in the possession of
public officials.

 
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The phrase "documentary evidence" could be
interpreted in the very narrow evidentiary
sense, i.e., a document that may be
admissible as evidence at trial.

See Chapter 889, Stats.

Or it could be interpreted in a broader sense
to cover the papers in the file which
constitute the physical information
available to the prosecutor or
papers created by the prosecutor.

The former interpretation seems too narrow.

The latter would be broad enough to be
coextensive with the definition
of "record" in section 19.32(2).

I think the answer is best arrived at
somewhat indirectly by evaluating the rights
of a defendant with respect to the
prosecutor's file.

One commentator found that:

     Wisconsin has consistently held to the
     common law doctrine that the defendant
     is not entitled to inspect the evidence
     and other information which the
     prosecution has gathered.

The statement of the supreme court whenever
the issue was raised has been,

     One accused of crime enjoys no right
     to an inspection of evidence relied
     upon by the public authorities
     for his conviction.

49 Marq. L. Rev. 736, 746 (1965-66),
with the following footnote
to the quoted material:

State ex rel. Spencer v. Freedy,
198 Wis. 388, 392;
223 N.W. 861, 862 (1929).

This same statement is repeated in
State ex rel. Schroeder v. Page,
206 Wis. 611,
240 N.W. 173 (1932);

Steensland v. Hoppmann,
213 Wis. 593,
252 N.W. 146 (1934);

State v. Herman,
219 Wis. 267,
262 N.W. 718 (1935).

A similar statement is found in

Santry v. State,
67 Wis. 65,
30 N.W. 226 (1886).

Now we could add

State v. Miller,
35 Wis.2d 454, 474,
151 N.W.2d 157 (1967).

The commentator found Wisconsin to be a
conservative adherent to this common law
restriction (49 Marq. L. Rev. at 749) and
supposed that any statutory departure would
be strictly construed.

(49 Marq. L. Rev. at 748).

The United States Supreme Court has created
a qualification to this general rule.

It requires prosecutors to divulge
evidence that is material either
to guilt or to punishment as a
matter of constitutional "due process."

Brady v. State of Maryland,
373 U.S. 83, 86 (1963).

 
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However, even so, in this state the defense
does not have access to the prosecutor's file
prior to the preliminary examination unless
it can show a particularized need.

Matter of State ex rel. Lynch v. County Ct.,
82 Wis.2d 454, 468,
262 N.W.2d 773 (1978).

The prosecutor may deny inspection,
and if it is eventually established
that evidence was wrongfully withheld,
the remedy is a new trial.

82 Wis.2d at 468.

In my opinion, logic compels the conclusion
that if at common law a defendant could not
have access to a prosecutor's file in his
own case prior to trial, neither could
the general public.

Certainly the defendant's interest in his own
file exceeds that of the general public.

The defendant's interest is to know the
accusations and evidence for and against
him so he can evaluate his exposure and
prepare his defense.

Yet the defendant was denied
access under the common law.

It would be perverse to then allow access by
everyone but the defendant by way of the
public records law.

Also it is obvious that the clear limitations
on discovery could be circumvented easily if
the same information could be obtained by the
defendant by way of a public records request.

In my opinion, this logic amplifies the
meaning of the more general statements at
common law acknowledging limitations on
access to documentary evidence in
prosecutors' files.

I believe that at common law any right of
access under the public records law could not
surpass the defendant's rights to discovery.

Given the very limited purposes for which and
circumstances under which a defendant could
have any discovery of a prosecutor's file
under common law, it must follow that the
common law limitations on access are a
complete bar to access to the
prosecutor's file.

This issue has been considered with mixed
results in the appellate courts of New York.

One view is that material that is exempt from
discovery in the context of litigation is
exempt from disclosure under their
public records law.

A leading case is
Westchester Rockland, Etc. v. Mosczydlowski,
396 N.Y.S.2d 857, 58 A.D.2d 234 (1977).

Contrapuntal is the decision in
Lawler, Matusky & Skelly
Engineers v. Abrams,
443 N.Y.S.2d 973,
111 Misc. 2d 356 (1981).

In my opinion the logic in favor of
transferring common law limitations on
discovery in criminal cases to the public
records law is more persuasive.

Therefore, it is my opinion that there
is a general common law limitation
against access to prosecutor's files
prior to completion of a trial.

 
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The overriding interests that justify this
limitation on the public's general "right to
know" will often coincide with the interests
recognized as justifying the secrecy of John
Doe proceedings, to wit:

(1)  keeping a John Doe target from
     fleeing, or an arrested defendant
     from knowledge which might
     cause him to flee;

(2)  preventing defendants from
     collecting perjured
     testimony for the trial;

(3)  preventing those interested in
     thwarting the inquiry and tampering
     with prospective testimony or
     secreting evidence;

(4)  freeing witnesses from the threat
     of immediate retaliation; and

(5)  preventing testimony which may be
     mistaken or untrue or irrelevant
     from becoming public.

In re Wis. Family Counseling
Services v. State,
95 Wis.2d 670, 677,
291 N.W.2d 63 (Ct.App. 1980).

One could also add the concern
for pretrial publicity.

Also present to support the secrecy of
prosecutors' files, although not available
to justify the blanket exemption by itself,
is the doctrine of attorney work product
which protects papers prepared by an
attorney with respect to particular
pending or imminent litigation.

Youmans, 28 Wis.2d at 684.

The United States Supreme Court has held
recently that the protection of attorney's
work product continues even after the
litigation is over.

FTC v. Groher, Inc.,
103 S.Ct. 2209, 2215 (1983).

As stated in section 19.31,

     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
     employes who represent them.

See
Newspapers, Inc. v. Breier,
89 Wis.2d 417, 433-38,
279 N.W.2d 179 (1979).

The public interest to be served is not so
much the "curiosity" interest in what
accusations have been made and what evidence
has been gathered against an individual.

The public interest underlying the public
records law is the interest in monitoring
and evaluating how public officials discharge
their responsibilities.

 
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With respect to the performance of a
prosecutor in a particular case, this
evaluation will be much more knowledgeable
and objective once the trial is over.

It would likely unnecessarily interfere with
the administration of justice if the public
were allowed to look over the prosecutor's
shoulder and proclaim what it sees while a
prosecutor is preparing or presenting a case.

At least, it is my opinion that the public's
right to know and the interest in effective
administration of the criminal justice system
are harmonized and adequately served if
prosecutors' files are exempt from
disclosure during the investigative,
pretrial and trial stages.

The next question then is whether
prosecutors' files are open to public
inspection after the trial. Employing the
logic used above, it is appropriate to
explore the extent to which a defendant has
access to the state's file following the
trial.

We find once again that a defendant's
rights are very limited.

The common law in this state is that
subsequent to a trial a defendant
has no right to inspect relevant
portions of the state's files
to determine whether they
contained evidence in any
way useful or helpful to him.

Access would be constitutionally required
only if there were a specific allegation that
the prosecution had suppressed evidence which
due process would require it to disclose.

Britton v. State,
44 Wis.2d 109, 118-19,
170 N.W.2d 785 (1969).

Again, following the rationale used above.

If a defendant has only a severely limited
right to inspect the state's file for the
defendant's case, it necessarily follows
that the public at large cannot have a
greater right by way of the
public records law.

I am aware that our state statutes do now
provide for an expanded right of
discovery in criminal cases.

Section 971.23 was created by
Chapter 255, Laws of 1969.

The first paragraph of the
accompanying Note states:

NOTE:

This section is the first Wisconsin statute
attempting to afford pretrial discovery to
both the State and the defendant.

Based primarily upon F.R.Cr. P. 16, it is
believed that the section represents an
improvement in the existing pretrial
procedures while protecting the
basic rights of the parties.

Limited pretrial discovery should increase
the efficient administration of criminal
justice in this state by speeding up the
disposition of cases, improving the
performance of counsel, eliminating the
increasing number of pretrial motions and
increasing the number of guilty pleas.

 
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The section contemplates that most of
the discovery provisions are to be
implemented without the necessity
for motions or court hearings.

This statutory liberalization of the common
law regarding discovery in criminal cases
does not affect the companion common law
regarding access to public records.

If the common law in the latter area is
to be modified, that too requires
a specific statutory modification.

What then of the public's right to have
access to public records so it may monitor
and evaluate the conduct and performance of
public prosecutors?

Surely they are not exempt from scrutiny and,
indeed, the elected district attorneys
should not be.

The answer is that there is typically enough
information available without access to the
prosecutor's file.

It starts in the police station.

We know that the daily arrest log is
absolutely open to public inspection.

Breier, 89 Wis.2d 417.

This makes "possible public oversight of the
charging discretion of the prosecutor."

89 Wis.2d at 437.

From checking court records, one may
determine whether charges have
been pressed and what they are.

With few exceptions such as provided in
section 970.03(4), criminal pretrial
hearings are open to the public.

The trial is always open to the public.

Documents relating to the litigation are
available for public inspection if they
have been filed or admitted in evidence
and are not subject to a specific
protective order of the court.

These all can be evaluated by
the press and the electorate.

If the information is deemed inadequate,
or an explanation is desired, the district
attorney can be confronted directly.

The sufficiency of his response may be
evaluated and taken into account
at the next election.

The burden is on the district attorney to
keep the public sufficiently informed so
confidence in his performance is maintained.

Lack of confidence will presumably result
in failure to be reelected.

It is this risk and burden a district
attorney must bear in exchange for
having his prosecutorial files
closed to general public inspection.

It must be emphasized that this opinion has
considered only those files which relate
directly to a possible, pending or
completed prosecution.

Administrative files and other non-case
related records in a prosecutor's office
are public records fully subject to the
provisions in Subchapter II of Chapter 19.

As such there is a presumption in favor of
public access and nondisclosure will have
to be evaluated on a case-by-case basis.

 
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BCL:RWL