APPLETON POST-CRESCENT v. JANSSEN,
149 Wis.2d 294 (Ct.App. 1989)
441 N.W.2d 255 CONTENTS PAGINATED
[Case No. 87-1446.]
DOCUMENTARY SUBPOENAS CONCERNING
the DEATH OF Michelle M. KOY:
[Case No. 88-0954.]
The APPLETON POST-CRESCENT,
Ruth H. JANSSEN,
Clerk of Circuit Court, Outagamie County;
William J. Grogan,
Outagamie County District Attorney;
Philip C. Russell,
Outagamie County Coroner;
David L. Gorski,
City of Appleton Chief of Police; and
City of Appleton Fire Chief,
Orally argued December 12, 1988.
Decided February 21, 1989.
Petition to review denied.
APPEAL from orders of the circuit court for Outagamie
county: MICHAEL GAGE and N. PATRICK CROOKS,
Judges. Modified and, as modified, affirmed.
For petitioner-appellant-plaintiff-respondent there
were briefs by Eugenia G. Carter, Brady C. Williamson,
and La Follette & Sinykin, Madison.
For respondents-defendants-appellants there was a brief
by William J. Grogan, district attorney, Outagamie
For respondent-defendant-appellant William J. Grogan
there was a brief by Donald J. Hanaway, attorney
general, and Thomas J. Balistreri,
assistant attorney general, Madison.
For respondent-defendant-appellant David L. Gorski
there was a brief by Greg J. Carman,
Appleton city attorney, Appleton.
Before Cane, P.J., LaRocque and Eich, JJ.
This consolidated appeal presents a dispute over
limited attorney access to law enforcement records
gathered in a homicide investigation solely to better
present an open records argument.
The Appleton Post-Crescent (the newspaper), first
sought through an order to show cause in February,
1987, the release of court records consisting of
subpoenaed material and search warrant information
relating to the murder of a young Appleton woman
on October 13, 1985.
The newspaper acknowledged in that proceeding,[fn1]
Judge Michael Gage, presiding, that it "has not
challenged, for the moment at least, the court's
substantive decision . . . ."
Because Judge Gage released substantially all of the
records sought in edited or redacted form, the
newspaper's appeal directed at procedural
irregularities is moot and we summarily
affirm Judge Gage's decision.[fn2]
In a separate and distinct mandamus action, the
newspaper sought the same court records and
investigative law enforcement records as well.
In the mandamus action, Judge N. Patrick Crooks
presiding, the public officials (the government) whose
records are sought appeal a decision granting the
newspaper's attorney restricted access to the disputed
records for the purpose of presenting its case.
Except for remand to assure elimination of certain
records subject to a John Doe secrecy order and a
modification to eliminate records already released by
Judge Gage, we affirm Judge Crooks' order.
The government, first claiming that the court lacked
statutory authority to grant any preliminary access,
a claim we reject, alternatively perceives several
problems with Judge Crooks' procedural methods.
We conclude that the problems are largely illusory.
They include concern for potential illicit leaks of
information inimical to the prosecution; unauthorized
access to documents generated by a secret John Doe
proceeding in another branch of the circuit court; and
an "inherent conflict" between Judge Gage's redacted
records and the unedited version released to the
Because Judge Gage released certain court records and
resolved that issue, mandamus seeking the same records
is not available, and Judge Crooks' order should be
We also conclude that the open records law authorizes a
discretionary order for limited attorney access only
for purposes of case preparation, that the secrecy
order for John Doe records can be honored by the
mandamus court by granting the government time to
review the records, and that the court's carefully
circumscribed access order was not an abuse of
We emphasize the fact that neither the circuit court's
order nor this appeal determines that the law
enforcement records are to be made public.
Judge Crooks' order excluded transcripts of
testimony from any John Doe proceedings and
was subject to these limitations:
A. The newspaper's counsel . . . shall review
the documents in . . . Chambers at the Brown
County Courthouse by January 31, 1988;
B. Defendants shall deliver copies of all of the
records to . . . chambers on or before
January 18, 1988.
The Court shall retain the copies until the
conclusion of this matter.
The originals of the documents shall remain
with the defendants;
C. The newspaper's counsel . . . shall begin her
review of the documents on January 19, 1988
at 10.00 a.m. and shall continue that process
from day to day until the review is completed
by January 31, 1988;
D. The newspaper's counsel . . . may not
photocopy or remove any of the materials
retained under seal, but she may take notes
about the documents.
If the newspaper's counsel takes such notes,
she shall file a copy of the notes with the
Court which shall retain them, at least until
the disposition of this matter, under seal;
E. The Outagamie County District Attorney's
office and the Appleton City Attorney's
office each may . . . designate a
representative to observe the review by the
newspaper's counsel of the materials under
seal, but the designee may not review any
notes made by the newspaper's counsel;
F. . . . counsel for the newspaper, may discuss
the results of her review of the documents
with her co-counsel . . . and her secretary .
. . may type the notes and any related
G. Only one copy of [the attorney's] notes,
whether written or typed, shall be in the
possession of the newspaper's counsel at any
H. The newspaper's counsel shall not in its
written submission to this Court or in any
other fashion disclose to anyone specific
information from the sealed materials that
has not already been specifically disclosed
by the defendants or by the Outagamie County
Subject to the modification to exclude court records
already released, and a remand to assure the district
attorney reasonable time to remove certain John Doe
records, we affirm.
The government first maintains that the open records
law does not contemplate preliminary access to records.
We think it does authorize preliminary access.
Section 19.37(1)(a), Stats, provides in part:
If an authority withholds a record . . . .
19.37(1)(a) The requester may bring an action for
mandamus asking a court to order release
of the record. The court may permit the
parties or their attorneys to have
access to the requested record under
restrictions or protective orders as the
court deems appropriate.
The government reasons that the phrase "may permit
the parties or their attorneys to have access"
(emphasis supplied) demonstrates the legislative
purpose to allow access only after a final
decision on the merits of public release.
It argues that if a party may obtain preliminary
access, it renders the statute meaningless.
Citing cases decided prior to the present statute, it
is also the government's view that the adoption of
Section 19.37 was not intended to change prior law
concerning the proper method for releasing records.
We agree that no change was intended, but prior
case law discloses no precedent resolving
the issue of preliminary access.
Section 19.37(1) was created in 1981.
The analysis of a bill by the Legislative Reference
Bureau is indicative of legislative intent.
State v. Larson,
133 Wis.2d 320, 326,
395 N.W.2d 608, 611 (Ct. App. 1986).
That bureau stated that:
"Under the bill, the requester of a record
which is withheld may seek a court order
directing release of the record, as currently
LRB analysis of engrossed 1981 Senate Bill 250,
found in bill drafting file for Chapter 335,
1981 Wis. Laws (emphasis supplied).
The only new procedural feature of the law identified
by the LRB was the provision for the award of costs,
fees, and damages to a successful mandamus petitioner.
Id.; see Section 19.37(2), Stats.
The government cites
State ex rel. Youmans v. Owens,
28 Wis.2d 672,
137 N.W.2d 470 (1965).
There, the supreme court said:
If the person seeking inspection . . . institutes court
action to compel inspection and the officer depends
upon the grounds stated in his refusal, the proper
procedure is for the trial judge to examine in camera
the record or document sought to be inspected.
Upon making such in camera examination, the trial judge
should then make his determination of whether or not
the harm likely to result to the public interest by
permitting the inspection outweighs the benefit to be
gained by granting inspection.
In reaching a determination so based upon a balancing
of the interests involved, the trial judge must ever
bear in mind that public policy favors the right of
inspection of public records and documents, and,
it is only in the exceptional case that
inspection should be denied.
In situations, such as in the instant case, where
inspection is sought of a number of documents, the
ultimate decision after conducting the balancing
test might be to grant inspection as to certain
of the documents and deny it as to others.
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
Id. at 682-83, 137 N.W.2d at 475 (footnote omitted).
The decision gives no indication that Youman's attorney
sought preliminary access, and there was no need to
address the matter.
Thus, while Youmans remains unaffected by the current
statute, it does not provide guidance on the
issue presented here.
The open records law contemplates "restrictions or
protective orders" that by their nature are designed to
narrow access as the facts of the case dictate.
It is certainly conceivable that limited preliminary
access even to a party would be appropriate
under some circumstances.
On the other hand, cases may arise where preliminary
access even by the attorney is inappropriate.
While access may pose problems if unrestricted or
overbroad, there is nothing inherent in the statute's
language or its purpose to suggest the practice is
Alternatively, the government argues that if access is
permissible, the circuit court abused its discretion by
not first determining the potential dangers of attorney
access by conducting an in camera inspection.
It argues further that the court did not adequately
assure that documents generated out of a John Doe
examination were removed from the files.
The court here did not abuse its discretion when
it declined an in camera examination.
We will sustain a discretionary act if the circuit
court examined the relevant facts, applied a proper
standard of law, and, using a demonstrated rational
process, reached a conclusion that a reasonable
judge could reach.
Loy v. Bunderson,
107 Wis.2d 400, 414-15,
320 N.W.2d 175, 184 (1982).
A fundamental feature of discretion is
the recognition that each case is unique.
There may be cases where an in camera inspection
is essential at the outset.
The district attorney's hypothetical concern that
a murder suspect or his attorney may seek entry
to an active police file is not remotely
suggested by the record here.
We recognize that an ongoing police investigation
is an important factor in the ultimate decision
whether to grant public access to their files.
See Comment, Wisconsin Public Records Law,
67 Marq. L. Rev. 65 (1983).
The circuit court here merely engaged in a presumption
that an officer of the court representing the news
media would obey its secrecy order.
This presumption, backed by the court's power to impose
sanctions for contempt of court and potential penalties
for violating the code of professional responsibility,
constitutes adequate protection under the present
Further, as the court observed, an informed attorney
may assist in presenting a more accurate and balanced
picture from which the court will derive its ultimate
"In light of . . . overwhelming emphasis upon
disclosure, it is anomalous . . . that the
party with the greatest interest in obtaining
disclosure is at a loss to argue with
desirable legal precision for the revelation
of the concealed information."
Vaughn v. Rosen,
484 F.2d 820, 823 (D.C. Cir. 1973), cert. denied,
415 U.S. 977 (1974).
This lack of knowledge
"seriously distorts the traditional
adversary nature of our legal system's
form of dispute resolution."
Vaughn, 484 F.2d at 824.
Finally, it is apparent that the circuit court knew
that the file contained sensitive information,
which if leaked, could cause serious consequences.
Where the requester has a personal connection
with the investigation, discretion may call
for an in camera inspection either prior
to or in lieu of attorney access.
It was unnecessary that the court examine the
precise details of the investigation here
because its decision is only prefatory.
An in camera examination is not a prerequisite to a
valid order in every case. We conclude, under the
facts here, that the restrictions placed upon the
newspaper's attorney are adequate to ensure
continued secrecy pending a final decision.
We recognize that methods other than direct attorney
access are available and, depending on the
Numerous federal courts and several states have
adopted a procedure known as Vaughn indexing.
In Vaughn, the federal court required agencies wanting
to withhold records from public inspection to divide
the documents into manageable segments, submit to the
court and the requesting party an analysis of the
content of each segment as descriptively detailed
as possible without actually compromising the
secret nature of the information, and specify
the reasons why disclosure of each withheld
segment is against the public interest.
Id. at 826-27.
This practice is apparently widely accepted
in the federal courts.
See, e.g., Ingle v. Department of Justice,
698 F.2d 259, 263-65 (6th Cir. 1983)
(surveying decisions of various
federal circuit courts).
Several state courts have adopted similar versions.
Wilson v. Freedom of Information Comm'n,
435 A.2d 353, 362 (Conn. 1980);
Cranford v. Montgomery County,
481 A.2d 221, 230-31 (Md. 1984);
Loigman v. Kimmelman,
505 A.2d 958, 964-67 (N.J. 1986).
The Vaughn indexing method presents two advantages:
It reduces the chance of unauthorized disclosure
in sensitive cases, and it places the burden of
sifting and searching where it belongs, on the
agencies and not the judiciary.
The John Doe records present a different problem.
Judge Crooks unequivocally excluded from review any
testimony or records originating in an independent
John Doe proceeding in another branch of the
The government now expresses concern that it lacked
time to identify and retrieve those records from
the mass of documents accumulated in the
course of the investigation.
The exact extent of the government's problem is unclear
from the briefs, although reference is made to
some 900 pages of documents subject to release.
Because this matter must be remanded for a new time
schedule in any case, we direct the circuit court to
give consideration, after hearing from the parties
if it chooses, to decide what constitutes a reasonable
time for the district attorney to review the records
and remove those originating from the John Doe
By the Court. The attorney access order is modified
to exclude those records already released in redacted
form by an earlier order; the matter is remanded to
the circuit court for entry of a new time schedule;
both orders are otherwise affirmed.
[fn1] The court issued the order to show cause
without benefit of an underlying action or
proceeding. No challenge is raised as to
[fn2] The newspaper quarrels with Judge Gage's
refusals to honor a motion to consolidate the
two proceedings, to allow preliminary
attorney access, and to allow the newspaper's
attorney to attend in camera testimony from a
police investigator relating to the reasons
[fn3] The attorney general advances the argument of
lack of statutory authority. The other
arguments are those of the Outagamie County
[fn4] The written order drafted by the newspaper
does not reflect the court's ruling from the
bench. That ruling provided that, in
addition to excluded testimony, records
originating in the John Doe were to be
excluded prior to attorney access.