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, Petitioner-Appellant, v. 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 Richard Davis, City of Appleton Fire Chief, Respondents.
Orally argued December 12, 1988. Decided February 21, 1989. Petition to review denied.

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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

County, Appleton.



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.
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Before Cane, P.J., LaRocque and Eich, JJ.



LaROCQUE, J.



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.
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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

newspaper's attorney.[fn3]



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

modified accordingly.



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

discretion.



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.
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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

     materials;



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

     time;
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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

     Circuit Court.



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.
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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

     permitted."



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.
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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.



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

universally prohibited.



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).
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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

circumstances.





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

ruling.



     "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.
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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

circumstances, preferable.



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.



See, e.g.,



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.
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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

circuit court.[fn4]



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

proceeding.



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

      this procedure.



[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

      for secrecy.



[fn3] The attorney general advances the argument of

      lack of statutory authority.  The other

      arguments are those of the Outagamie County

      district attorney.



[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.
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