JOURNAL/SENTINEL, INC. v. AAGERUP,
145 Wis.2d 818 (Ct.App. 1988)
429 N.W.2d 772 CONTENTS
JOURNAL/SENTINEL, INC. and Paul Poda,
Barbara J. AAGERUP, Respondent.
Court of Appeals No. 88-0095.
Submitted on briefs June 8, 1988.
Decided July 20, 1988.
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.
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
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.
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
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.
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.
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.
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.
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:
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.
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.
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]
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."
89 Wis.2d at 427,
279 N.W.2d at 184.
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.
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
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
The Dreyfus court then posited the following
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
. . . 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
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
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
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