Wisconsin Attorney General Opinions
 

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Opinion # OAG 7-88,

19 February 1988

Law Enforcement; Public Records, Sheriffs;

Sheriff's criminal investigation files are
not covered by a blanket exemption from the
public records law, but denial of access may
be justified on a case-by-case basis.

KENNETH E. GOERKE,
Corporation Counsel Green County

You ask:

1. Is the Sheriff's investigative file in a
   first degree murder case open to access
   to the defendant by a post conviction
   request for access to the entire file
   under the Wisconsin Public Records
   Law?

2. If the answer to your first question is
   yes, what documents, if any, are
   protected from access?

Some of the issues generated by your
questions have already been considered
and I believe resolved correctly by my
predecessor in 67 Op. Att'y Gen. 12 (1978).

That opinion concluded that sheriff's radio
logs and other interdepartmental documents
were not "books and papers required by law
to be kept in his office" and thus were not
subject to the absolute right of access
provisions under Section 59.14, Stats.,
which reads:

Offices where kept; when open.

59.14(1)
Every sheriff, clerk of the circuit court,
register of deeds, county treasurer,
register of probate, county clerk and county
surveyor shall keep his or her office at the
county seat in the offices provided by the
county or by special provision of law; or if
there is none, then at such place as the
board directs.

The board may also require any elective or
appointive county official to keep his or her
office at the county seat in an office to be
provided by the county.

All such officers shall keep their offices
open during the usual business hours of any
day except Sunday, as the board directs.

With proper care, the officers shall open to
the examination of any person all books and
papers required to be kept in his or her
office and permit any person so examining to
take notes and copies of such books, records,
papers or minutes therefrom except as
authorized in Subsection 59.14(3)
and Section 19.59(3)(d) or under
Chapter 69.

The opinion at 67 Op. Att'y Gen. 12 concluded
that section 59.14 would not apply to
criminal complaint and investigation reports
because they are nowhere "required by law to
be kept" in the sheriffs office.

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In contrast, the sheriffs docket, daily jail
records and cash books are required by law to
be kept by the sheriff.

Sec. 59.23, Stats.

The significance is that Section 59.14 is
what the supreme court has called an
absolute right of access statute.

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

As such, the possible available bases for
denying access to a record are more
restricted than under the general public
records law which was then based on
Section 19.21 and which has now
been expanded statutorily by
Section 19.31 to Section 19.39.

Bilder, 112 Wis.2d at 552.

In line with 67 Op. Att'y Gen. 12, it is my
opinion that the question of access to a
sheriff's criminal investigation file
is to be analyzed in the context of
the general public records law.

Under the general public records law, there
is a presumption in favor of access to public
records and access is to be denied only under
extraordinary circumstances.

Sec. 19.31, Stats.

   the general presumption of our law is
   that public records shall be open to the
   public unless there is a clear statutory
   exception, unless there exists a
   limitation under the common law, or
   unless there is an overriding public
   interest in keeping the public record
   confidential.

Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984).

There is one clear statutory exception
involving law enforcement records. Section
19.36(2) reads:

LAW ENFORCEMENT RECORDS.

Except as otherwise provided by law,
whenever federal law or regulations
require or as a condition to receipt of
aids by this state require that any
record relating to investigative
information obtained for law
enforcement purposes be withheld from
public access, then that information is
exempt from disclosure under
Section 19.35(1).

However, there is no indication that there is
the required relationship between federal law
or aid and the records in the instant
situation, so I assume this clear
exception does not apply.

There is also section 905.09, which creates
an evidentiary privilege and reads as
follows:

The federal government or a state or a
subdivision thereof has a privilege to
refuse to disclose investigatory files,
reports and returns for law enforcement
purposes except to the extent available
by law to a person other than the
federal government, a state or
subdivision thereof.

The privilege may be claimed by an
appropriate representative of the
federal government, a state or a
subdivision thereof.

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However, the judicial council committee's
note that follows the statute in the
Wisconsin Statutes Annotated makes
clear that the phrase

  "except to the extent available by
   law to a person other than the
   federal government, a state
   or subdivision thereof"

is intended to preserve the supremacy
of the public records law.

Thus rather than the privilege being a
possible exception to the public records law,
the public records law works to qualify the
privilege.

Therefore, to my knowledge there is no clear
statutory provision that would exempt the
instant investigative file from the public
records law.

Neither am I aware of any common law
limitation that exempts criminal
investigative files from the
public records law.

In 74 Op. Att'y Gen. 4 (1985), my predecessor
considered whether there was a common law
limitation on access to a prosecutor's file.

It was reasoned that since at common law a
defendant had no right of access to the
prosecutor's file, it must also have been
true that the general public would not have
access under the public records law.

74 Op. Att'y Gen. at 10.

There were also dicta available indicating
common law limitations on access to
prosecutor's files.

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

Youmans v. Owens,
28 Wis.2d 672, 680,
137 N.W.2d 470,
139 N.W.2d 241 (1965).

However, I can find no such common law
underpinning relating to access to
sheriff's investigative files.

Along another line, it may be that the
prosecutor can assert an attorney work
product privilege with respect to
investigative work conducted at
his direction and relating
directly to anticipated litigation.

The United States Supreme Court has held that
the attorney work product privilege applies
in criminal as well as civil matters.

United States v. Nobles,
422 U.S. 225, 237 (1975).

The same has been said for Wisconsin law.

October 1985 Wisconsin Bar Bulletin at 23.

In Nobles, the privilege was asserted
with respect to the defendant's attorney
and his private investigator.

It may follow that the privilege could also
be asserted with respect to the prosecutor
and those conducting investigations for him,
including public law enforcement officials.

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The prevailing view seems to be that
investigative reports that are prepared in
the ordinary course of business and not tied
directly to preparation for litigation do not
qualify for work product protection, e.g.,

Scott Paper Co. v. Ceilcote Co., Inc.,
103 F.R.D. 591 (1984);

State v. Shipton,
339 N.W.2d 87, 89 (N.D. 1983);

State ex rel. Fallis v. Truesdell,
493 P.2d 1134, 1136 (Okla. 1972).

But see

State ex rel. Keaton v. Cir. Ct. of Rush
County, 475 N.E.2d 1146 (Ind. 1985),
where the foregoing proposition
was the minority view.

Finally, the impact of the privilege may be
limited by the counteracting requirement
that the prosecutor is required to
disclose exculpatory evidence.

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

As to the common law balancing test,
I believe the approach and guidance
of my predecessor in
67 Op. Att'y Gen. 12 continue to be sound:

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.

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.

67 Op. Att'y Gen. at 13-14.

There is also dictum that indicates a
judicial receptiveness to applying the
balancing test to keep criminal investigation
records closed, but only while the
investigation or prosecution
is still pending.

Youmans, 28 Wis.2d at 685;

Newspapers Inc. v. Breier,
89 Wis.2d 417, 427,
279 N.W.2d 179 (1979).

The attorney general has also made the
distinction between pending and
completed investigations.

73 Op. Att'y Gen. 38, 44 (1984).

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The mere pendency of an investigation or
possible prosecution is not determinative.

There must be some actual underlying
concerns that warrant protection.

For example, there may be some of the same
types of concerns that have been identified
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).

If there is a reasonable basis for having
concerns such as the foregoing then
secrecy may well be justified.

I assume it is because these kinds of
concerns are typically present in a pending
criminal investigation that my predecessor
said at 67 Op. Att'y Gen. at 15:

  "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".

However, if in fact there is not a reasonable
basis for these or other legitimate concerns
in a particular case then secrecy is not
justified even though the matter is pending.

Even where there are legitimate reasons
justifying nondisclosure during the pendency
of an investigation or prosecution, most of
the reasons will dissipate once the matter
comes to a close. For example, concern
that a suspect may flee is removed once
the suspect is convicted and imprisoned.

On the other hand, even though the trial is
over, the pendency of an appeal and
possibility of another trial may keep
concerns about disclosure alive.

Whether there are residual concerns that
justify nondisclosure of all or part of a
closed file will also have to be made on a
case-by-case basis.

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For example, there may be a residual concern
about the release of information that would
have a substantial and undue adverse impact
on a person's reputation as where the record
contains highly damaging allegations which
are wholly unsubstantiated by credible and
competent evidence.

See Sections 19.35(1)(a) and 19.85(1)(f),
Stats., and Youmans, 28 Wis.2d at 685.

In conclusion, my response to your first
question is that I do not find a legal basis
for according blanket confidentiality to a
sheriff's file regarding a first degree
murder case.

Although it would not be uncommon for there
to exist specific concerns that would justify
nondisclosure of such a file while a criminal
investigation is pending, such a
determination must be made on
a case-by-case basis.

Since underlying legitimate concerns normally
would relate to the integrity and security of
the investigation or possible prosecution,
the reasons for nondisclosure will be removed
or reduced once the matter comes to a close.

Whether there are continuing reasons for
nondisclosure will also have to be
made on a case-by-case basis.

This leads to your second question as
to what if any types of records
might be properly withheld.

The framework for analysis is the same.

In order to justify nondisclosure of
particular records in the file you must find
some specific statutory exception or common
law limitation or that the interests to be
protected by nondisclosure outweigh the
general presumption in favor of
access to public records.

You state that you are specifically
interested in the records of the eyewitness
accounts of the five year old daughter of
the defendant.

It appears the video tapes and audio tapes of
interviews with the juvenile were provided to
the defendant during pretrial discovery and
I assume she testified at the trial.

You state that the child is not in the
custody or control of the defendant but
she does visit him, I assume in prison.

You feel the release of the information
provided by the child would be against
the public interest.

As a general matter "peace officers' records
of children . . shall not be open to
inspection or their contents disclosed
except . . ." by court order.

Section 48.396(1), Stats.

That confidentiality provision is most
clearly intended to apply to records on
juveniles who have been investigated and
possibly processed for wrongdoing.

See
State ex rel. Herget v.
Waukesha Co. Cir. Ct.,
84 Wis.2d 435, 450-51,
267 N.W.2d 309 (1978).

However, the language is broad enough to also
cover police records of juveniles who are
witnesses or victims or who otherwise become
involved in a police investigation.

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The legislative purpose of the Children's
Code is to protect and promote the "best
interests of the child" and the provisions of
chapter 48 are to be liberally construed to
effect that objective.

Section 48.01(2), Stats.

Therefore, it is my opinion that the
confidentiality provisions of Section 48.396
are available to protect the best interests
of any juvenile who somehow becomes the
subject of police records.

Thus I believe the eyewitness accounts of the
juvenile involved in the instant case may
properly be considered protected by
those confidentiality provisions.

Questions remain, however, whether
confidentiality is affected by the fact that
the statements were made available to the
defendant during discovery or by the fact
that the juvenile testified at trial.

In my opinion the fact that records may be
available in discovery does not mean they
must subsequently be made available
under the public records law.

These are two wholly separate and independent
bases for obtaining access to records.

It is quite possible that a litigant's need
to know will result in access to records via
discovery which would not be available to the
general public under the public records law.

For example, in Herget cited above, the court
held that a plaintiff in a civil action
seeking recovery of damages resulting from
vandalism might be able to have access to
police records regarding a juvenile even
though those records are generally
confidential.

It may be argued that since the juvenile's
testimony at trial is public, any right of
confidentiality attaching to the juvenile's
statements to the police has been lost.

On the other hand, one could argue that the
juvenile's statement is public to the extent
made so in open court and it is unnecessary
and redundant to require access to previous
statements made to the police.

In my opinion the answer may be based on the
question that underlies the confidentiality
provisions in Chapter 48:

what is in the best interests of the child?

If you determine that the best interests of
the child would be disserved by disclosure of
her statements to the police and if there is
factual and rational underpinning for your
determination, it is my opinion that your
determination will be sustained by a
reviewing court.

DJH:RWL

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