JOURNAL/SENTINEL, INC. v. AAGERUP,

145 Wis.2d 818 (Ct.App. 1988)

429 N.W.2d 772                       CONTENTS


JOURNAL/SENTINEL, INC. and Paul Poda, Petitioners-Appellants, v. Barbara J. AAGERUP, Respondent.
Court of Appeals No. 88-0095. Submitted on briefs June 8, 1988. Decided July 20, 1988.
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APPEAL from an order of the circuit court for Ozaukee

county:  WALTER J. SWIETLIK, Judge. Affirmed.



On behalf of the petitioners-appellants, the cause was

submitted on the briefs of Robert A. Christensen of

Foley and Lardner, of Milwaukee.



On behalf of the respondent, the cause was submitted on

the briefs of James C. Reiher and John H. Lindquist of

von Briesen & Purtell, S.C., of Milwaukee.



Before Scott, C.J., Brown, P.J., and Nettesheim, J.



BROWN, P.J.



This case involves the Public Records Law, secs. 19.35

and 19.85, Stats. Specifically, we address whether a

custodian may initially withhold an autopsy report from

the public in an ongoing criminal case on the stated

grounds that the report is implicated in a crime

detection effort.



We hold that the custodian may do so.



We also address whether, in this case, the nature of

the particular crime investigated and material withheld

in fact requires secrecy from the public despite the

strong policy favoring disclosure.
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We conclude that they do, and affirm

the ruling of the trial court.



The pertinent facts are few.



In July of 1987, Tara Kassen was found dead, presumably

the victim of a homicide.



A forensic pathologist performed an autopsy and

issued a twenty-eight page autopsy report.



In early August, appellant Poda formally requested a

copy of the autopsy report from the coroner, as well

as copies of the death certificate and certain dental

records.



The coroner, by her attorney, denied the request for

the autopsy report, citing the Public Records Law

exemption for information regarding crime detection,

sec. 19.85(1)(d), Stats.[fn1] Following the denial,

Poda brought a mandamus action testing the legality

of the withholding.



The trial court conducted an in camera review of the

report, and took testimony from Police Chief Call

and from Dr. Young, who conducted the autopsy.



The trial court determined that withholding was

justified because disclosure might impede the

ongoing criminal investigation.



The court therefore found that the potential harm to

the public interest which could result from disclosing

the report outweighed the benefits of inspection.



Our inquiry into the propriety of the

trial court's ruling is twofold.



First, we must determine whether the custodian's denial

was made with the specificity required by Section

19.35, Stats., and case law.
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Since we resolve that question in favor of the

custodian, we must determine whether the reasons for

withholding here are sufficient to outweigh the strong

public policy favoring disclosure.



As a rule, any person has a right to

inspect any public record.



See Section 19.35(1), Stats.;



Hathaway v. Joint School Dist. No. 1,

116 Wis.2d 388, 394,

342 N.W.2d 682, 685 (1984).



Our law presumes that public records

shall be open to the public.





Oshkosh N.W. Co. v. Oshkosh Library Bd.,

125 Wis.2d 480, 482,

373 N.W.2d 459, 461 (Ct. App. 1985).



Nonetheless, the public's right to access is not

absolute, and access is barred on those occasions

when the public interest in nondisclosure outweighs

the right to inspect.



Id. at 483, 373 N.W.2d at 461.



When inspection is requested, the record's custodian

must weigh these interests, remaining mindful that

exceptions to the policy of disclosure are rare.



Id.;



Hathaway, 116 Wis.2d at 397, 342 N.W.2d at 687.



A custodian's denial of access to a public record must

be accompanied by a statement of the specific



public policy reason for the refusal.



Oshkosh N.W. Co.,

125 Wis.2d at 485,

373 N.W.2d at 463.



Poda first maintains that the denial of access here

was not made with the requisite specificity.



We disagree.



The custodian's denial first pointed to a specific

statutory exception to the Open Meetings Law,

Section 19.85(1)(d), Stats.



This subsection, which is made applicable to records by

Section 19.35(1), Stats., grants an exception to the

requirement of disclosure when a governmental unit

considers probation and parole applications and

when it considers strategies to deal with

several aspects of law enforcement.



See id.
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The custodian next pointed to the particular

protected interest she believes is implicated

in this case:  crime detection.



She then stated that the autopsy is

excluded from disclosure.



The specificity requirement is not met by

a mere citation to the exemption statute.



Oshkosh N.W. Co.,

125 Wis.2d at 485,

373 N.W.2d at 463.



Nor is it met by a bald assertion that

release is not in the public interest.



Beckon v. Emery,

36 Wis.2d 510, 517,

153 N.W.2d 501, 503-04 (1967).



To meet the specificity requirement, the custodian

must give a public policy reason that the

record warrants confidentiality.



Newspapers, Inc. v. Breier,

 89 Wis.2d 417, 427,

279 N.W.2d 179, 184 (1979).



On the other hand, when denying inspection, the

custodian is not required to provide a detailed

analysis of the record and why public policy

directs that it must be withheld.



Here, the custodian stated that the autopsy was

part of a law enforcement detection effort.



She did not merely cite to the exemption statute, but

rather pointed to a particular statutorily-recognized

public policy reason for confidentiality:

crime detection.



In Breier, the custodian police chief

declined to release records showing the

charges on which people were arrested.



The stated ground for refusal was that releasing

the reason for arrest could harm people

personally and economically.



Id. at 428, 279 N.W.2d at 184.



The Breier court understood this as a statement of



          "concern for the rights of

          individuals in their reputations."



See id. at 433, 279 N.W.2d at 187.



This language, like "crime detection," is a

statutory reason for denial of access.



See Section 14.90(3)(e), Stats. (1965)

(now Section 19.85(1)(f), Stats.).



The court found that the custodian had

stated his reason for denying inspection.
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Breier, 89 Wis.2d at 428, 279 N.W.2d at 184.



In the instant case, custodial denial was more

succinct but no less adequate than that in Breier.



The coroner's denial here serves what we deem to be

the dual purpose of the specificity requirement.



First, it ensures that the custodian did not act

arbitrarily, but rather balanced the general public

interest in disclosure against a particular public

interest in secrecy of certain matters as required.



See



State ex rel. Youmans v. Owens,

 8 Wis.2d 672, 682,

137 N.W.2d 470, 475 (1965);



Oshkosh N.W. Co.,

125 Wis.2d at 483,

373 N.W.2d at 461.



Second, the denial gave the requester notice sufficient

to allow preparation of a challenge to the withholding.



Poda also argues that the reason for withholding was

inadequate because "there is no way an autopsy report

can be characterized as a `strategy' for . . . the

detection of crime."



She claims that "while Section 19.85(1)(d) may suggest

a policy ground applicable to portions of some autopsy

reports, an autopsy report per se simply does

not fit within the statutory language."



We find this ground for objection without merit.



The custodian did not withhold the record because if

was "an autopsy"; she withheld "the autopsy" on the

grounds that it was implicated in the crime detection

effort of this particular case.



Poda herself has agreed to the custodian's

withholding of some material on this ground.





The custodian may wrongly put greater emphasis on

secrecy than on the right to know, or balance publicity

against more of the record than is strictly relevant to

her public policy concern, all without abrogating her

duty to be specific.[fn2]
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As in Breier, however, the stated reason for denying

access may be specific but insufficient.



We turn now to the question of sufficiency.



Pursuant to an in camera hearing on Poda's mandamus

action, the trial court found that disclosure of

approximately one-quarter of the report "may seriously

impede the investigation of the case."



This is a factual determination, and as such it will

not be upset on appeal unless it is clearly erroneous.



Noll v. Dimiceli's, Inc.,

115 Wis.2d 641, 643,

340 N.W.2d 575, 577 (Ct. App. 1983).



We find no such error.



The finding was based on a review of the autopsy

and on testimony of experienced law enforcement

and medical personnel.



The witnesses testified that some of the value of the

report's information lies in its confidentiality.



When withheld, it could be used as a tool for

finding and prosecuting Kassen's killer.



The trial court assessed the testimony and the record

and found that the latter was indeed a potential tool

for crime detection when undisclosed.



We find nothing in the record to suggest otherwise.



     "Whether harm to the public interest from

     inspection outweighs the public interest in

     inspection is a question of law.



     The duty of the custodian is to specify

     reasons for nondisclosure and the court's

     role is to decide whether the reasons

     asserted are sufficient."



     Breier,

      89 Wis.2d at 427,

     279 N.W.2d at 184.
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We review questions of law ab initio.



Lippstreu v. Lippstreu,

125 Wis.2d 415, 416,

373 N.W.2d 53, 54 (Ct. App. 1985).



Our supreme court has long recognized that records

pertinent to ongoing criminal investigations may

implicate an overriding public interest

in preserving secrecy.



Breier,

 89 Wis.2d at 438,

279 N.W.2d at 189.



The reasons for this position include:  the information

might reveal an informer's identity, or take away a

necessary element of surprise from the police, or

enable a perpetrator to obscure evidence or hide

identity.



See Note,



Public Access to Law Enforcement Records in Wisconsin,

68 Marq. L. Rev. 705, 720-21 (1985).



Poda point out, however, that autopsies are not

generally held to be investigative tools.



For example, in a case she cited to the trial court,

particular autopsies are specifically held to determine

cause of death and to serve no other purpose.



Denver Publishing Co. v. Dreyfus,

520 P.2d 104, 107 (Colo. 1974).



We think it self-evident, though, and the Dreyfus

court concurs, that some autopsies are invaluable

strategies for crime detection.



The Dreyfus holding is limited to the documents at

issue.  That court stated: "The autopsy reports sought

contain only medical information relevant to a

determination of the cause of death.



Additional investigative information, including reports

by the coroner's investigators, may be contained in the

coroner's files but is not recorded in the autopsy

report itself."



Id.



The Dreyfus court then posited the following

hypothetical situation:
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Suppose that an autopsy disclosed that the subject had

died from the ingestion of small doses of arsenic over

a long period of time, whereas "natural causes" was the

reputed cause of death.  Under such circumstances, the

district attorney or the investigative officers might

determine that nondisclosure of the cause of death

would be advantageous in the early stages of the

investigation .



. . . Although the burden of proof would be on the

custodian of the report that burden would appear to be

easily met under such circumstances.



Id. at 107-08.



The custodian has set forth three precise reasons

(all of which, commentators have observed, are

valid reasons for withholding but none of which

we may divulge here) that the withheld information

is of peculiar value, when secret, in concluding

the unresolved presumptive homicide.



We believe that the overriding public interest in

criminal investigation is therefore implicated.



We note that three-fourths of the record

at issue has been released.



We note too that nothing in that record has called into

question the integrity of the custodian or of law

enforcement generally.



We note that murder is a particularly cruel fate,

and that its victims should be few and

its perpetrators punished.



We find that confidentiality has here been shown to

advance those dual goals of the Tara Kassen

investigation.



We find that the public's right to know

does not outweigh those goals here.



The order of the trial court is affirmed.



By the Court. Order affirmed.



[fn1]     Section 19.85(1)(d), Stats., reads in

          pertinent part: 19.85 Exemptions.



          19.85(1). . . A closed session may

          be held for any of the following

          purposes: . . . 19.85(1)(d)

          Considering specific applications

          of probation or parole, or

          considering strategy for crime

          detection or prevention.



[fn2]     This situation was contemplated and resolved

          in



          State ex rel. Youmans v. Owens,

           28 Wis.2d 672, 683,

          137 N.W.2d 470, 475 (1965):



          "If a single record or 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."
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