NEWSPAPERS, INC. v. BREIER
89 Wis.2d 417 (1979)
279 N.W.2d 179
NEWSPAPERS, INC., and another,
BREIER, Chief of Police,
City of Milwaukee
Supreme Court No. 76-724 420 425 430 435 440
421 426 431 436 441
Argued March 26, 1979. 422 427 432 437 442
423 428 433 438 443
Decided May 30, 1979. 424 429 434 439 444
Other Decisions and Opinions citing BREIER
APPEAL from a judgment of the circuit court for Milwaukee county:
HAROLD B. JACKSON, JR., Circuit Judge.
Reversed and remanded.
For the appellants there were briefs by Robert A. Christensen and
Foley & Lardner of Milwaukee, and oral argument by Mr.
For the respondent the cause was argued by Thomas E. Hayes,
assistant city attorney, with whom on the brief was James B.
Brennan, city attorney.
This action arose out of a request by Joseph W. Shoquist,
managing editor of The Milwaukee Journal, for regular
access to a number of police records.
Harold A. Breier, Chief of Police of the City of Milwaukee,
responded to Shoquist's request by granting access to some
records and refusing access to others.
In the Chief's letter dated July 3, 1974, he stated that the
press would be provided, upon demand, the name, age and date of
birth of all persons taken into custody, the time the suspect was
taken into custody, and the names of the arresting officers.
He refused to permit the press access to the records showing the
charge on which particular persons were arrested and refused
to permit access to the names of informants.
Although the newspaper has not agreed to the Chief's intention to
withhold information in respect to informants or complainants,
the newspaper has never sought to get that information.
In the instant case it only asserts the right under sec. 19.21(1)
and (2), Stats., to immediate access to the records which show on
a chronological and daily basis the charges upon which persons
The Chief's reasons for refusing to disclose to the press
and to the public the charge upon which a person was
arrested were set forth in the letter to Shoquist.
The basic stated reason for nondisclosure, possible personal and
economic harm to individuals arrested, has remained the rationale
for the Chief's position throughout these proceedings.
In the letter the Chief stated:
"If the charge to be sought against a person in custody is
disclosed, I am aware of possible economic and personal harm
to that individual which would result if the charge would
become known to employers, credit agencies or even
"Notwithstanding the fact that the charge may subsequently
be modified by the District Attorney or that the individual
may be subsequently acquitted, the mere disclosure of the
basis for the arrest could work as a serious impediment and
as the basis for discrimination against the individual in
his search for employment or licenses."
"I am informed by counsel that recent court decisions
require me to take the possible consequences to the
individual in custody into account in determining whether to
disclose the contents of the charge placed against such
individual, and that failure to do so may result in a
situation where the Department's ability to maintain arrest
records in the first place is severely jeopardized."
"I know that effective law enforcement requires that the
Department maintain a record of the charge under which the
subject is taken into custody even though the District
Attorney may issue a different charge, and therefore I
believe it is my responsibility as the public official
responsible for the enforcement of the laws and ordinances
of the city and the efficiency of the Department to take all
necessary steps to protect the integrity of this information
as contained in Department records."
Following the refusal of the Chief of Police to permit the
newspaper to inspect the records which would show the charge upon
arrest, the newspaper petitioned for a writ of mandamus to compel
the disclosure of this information.
The circuit court in its decision concluded that the Chief had
made a blanket refusal to permit inspection of records
that would show the arrest charge.
The court said that this response was unacceptable and stated
that the Chief of Police must set forth specific reasons
in each case for not disclosing the offense charged.
In an addendum to the decision, the court announced that the
Chief must, within forty-eight hours after an arrest, make
available to the general public and the press the offense
for which a person was arrested or provide
specific reasons for nondisclosure.
The trial judge declined to issue a writ of mandamus and instead
treated the petition as requesting declaratory relief.
A declaratory judgment was issued, which
declared the rights of the parties.
The relevant portion of the trial court's judgment provided:
"That within forty-eight hours after the arrest of any
person, the plaintiffs are entitled to inspect and copy the
records in the possession of the City of Milwaukee Police
Department which indicate the offense for which a person was
initially arrested unless the Chief of Police of the City of
Milwaukee or his designate refuses to produce the
aforementioned records and states with particularity the
specific reasons for the refusal."
Neither party was satisfied with the remedy.
The newspaper appealed, reasserting its claim for mandamus
directing that the Chief provide immediate access
to the arrest records.
The Chief of Police took a motion to review, asserting that he
had the absolute right to withhold the information and, as a
matter of law, was not obligated to reveal the initial charge.
The appeal was taken on an agreed statement of facts.
In that stipulation Chief Breier acknowledged his possession of
the records sought and that he was the custodian of them.
He also acknowledged that the information sought
was contained within "public records."
The only issue on appeal, according to the parties' statement
of the case, is whether the Chief of Police is required under
Section 19.21, Stats., to make records available for routine
inspection so the press and members of the public can
ascertain the charge for which a person was arrested.
We conclude that the answer to this question
under the law must be "yes."
We reverse the judgment of the trial court and remand with
directions that mandamus be granted directing the Chief of Police
to permit the petitioners and the public generally to routinely
and contemporaneously inspect the records which show the charges
upon which the arrests were initially made.
The factual posture of the case should be further clarified.
In this action, the petitioners are seeking only to inspect
arrest records as they are placed on the daily "blotter,"
a document which is used to record information about
individuals when they are taken into police custody.
Although the record is referred to by the parties as
the "blotter," the title which appears upon the
form used is "Daily Arrest List."
Although we hold that the offense charged upon arrest must be
revealed and the other information which the Chief has
volunteered to reveal shall, as a matter of law, be open for
inspection, we do not reach the question of whether the Chief is
required to make available the name and address of complainants.
Because the Chief's right to withhold the name of the complainant
or informant is not raised in this case, the right of the Chief
to block out or withhold that information is not decided.
Nor do we decide whether the Chief of Police is
required to make public the "rap sheet."
The "rap sheet" must be distinguished from
the "Daily Arrest List" or police "blotter."
The police "blotter" is an approximately chronological listing of
arrests, recorded at the time of booking at the police station.
A "rap sheet" is a record which the police department keeps
on each individual with an arrest record.
"Rap sheets" are filed in alphabetical order and purport
to show on a single document all arrests and
police contacts of an individual.
The public-policy reasons for the disclosure or nondisclosure of
the "rap sheets" may differ markedly from the reasons which
impel us to conclude that the arrest records showing
the charges must be disclosed.
Because no request has been made for access to these records,
we do not in this case decide whether "rap sheets" must
be available to the press and public.
The Chief takes the position that he need never
disclose the initial charge.
He states, however, that as a matter of policy the arrest charge
will be available to the public only if the person arrested is
formally charged by the prosecutor with an offense of the
same or greater magnitude than that for which the
original arrest was made.
If no formal charges are brought or if a reduced charge is
finally brought by the prosecutor, the Chief asserts that he need
never, and will never, reveal the charge on the original arrest.
The right of the public and the press to inspect the records
showing the original charges upon arrest must be determined under
the Wisconsin Public Records Statute, Sections 19.21(1) and (2),
Stats., and the case law which has been evolved by this court
interpreting and implementing that statute.
The statute provides:
"Section 19.21 Custody and delivery
of official property and records.
"19.21(1) Each and every officer of the state, or of any
county, town, city, village, school district,
or other municipality or district, is the legal
custodian of and shall safely keep and preserve
all property and things received from his
predecessor or other persons and required by law
to be filed, deposited, or kept in his office, or
which are in the lawful possession or control of
himself or his deputies, or to the possession or
control of which he or they may be lawfully
entitled, as such officers."
"19.21(2) Except as expressly provided otherwise, any person
may with proper care, during office hours and
subject to such orders or regulations as the
custodian thereof prescribes, examine or
copy any of the property or things
mentioned in subsection 19.21(1)."
Any person may, at his own expense and under such reasonable
regulations as the custodian prescribes, copy or duplicate
any materials, including but not limited to blueprints,
slides, photographs and drawings.
Duplication of university expansion materials may be performed
away from the office of the custodian if necessary."
This statute, which provides for a general rule permitting
examination or inspection of public records, was created by
Chapter 178, Laws of 1917. Prior to that time, a number of
statutes authorized inspection in specific situations.
Otherwise, the public's right to inspect public records
was determined by the common law.
International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America v. Gooding,
251 Wis. 362, 366,
29 N.W.2d 730 (1947), and
State ex rel. Youmans v. Owens,
28 Wis.2d 672,
137 N.W.2d 470,
139 N.W.2d 241 (1965),
particularly the per curiam opinion on rehearing at 685a.
On its face the statute states that,
"except as expressly provided otherwise,"
public records are subject to examination.
Section 19.21(2), Stats.
This court has, however, declined to read the statute literally.
We have interpreted the statute as a statement of the common law,
leaving in place the limitations on the inspection of records
that existed at common law.
We said in Gooding, supra at 372:
"While it is possible to contend that the words are so clear
as not to be subject to construction we are of the view that
the common-law right of the public to examine records and
papers in the hands of an officer has not been extended."
Nevertheless, we have concluded, where common-law limitations on
the right to examine records and papers have not been limited by
express court decision or by statute, that presumptively public
records and documents must be open for inspection.
We stated in Youmans, relying on
Section 19.21(1) and (2), Stats.:
". . . 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 Beckon v. Emery, 36 Wis.2d 510, 516, 153 N.W.2d 501 (1967),
we stated that the "public policy, and hence the public interest,
favors the right of inspection of documents and public records."
See, also State ex rel. Dalton v. Mundy,
80 Wis.2d 190, 196,
257 N.W.2d 877 (1977).
These cases restate the legislative presumption that,
where a public record is involved, the denial of inspection
is contrary to the public policy and the public interest.
To implement this presumption, our opinions have set out
procedures and legal standards for determining whether
inspection of records is mandated by the statute.
In the first instance, when a demand to inspect public records
is made, the custodian of the records must weigh the competing
interests involved and determine whether permitting inspection
would result in harm to the public interest which outweighs
the legislative policy recognizing the public interest
in allowing inspection.
Beckon v. Emery, supra at 516; Youmans, supra at 682.
If the custodian decides not to allow inspection, he must
state specific public-policy reasons for the refusal.
These reasons provide a basis for review in
the event of court action.
Beckon, supra at 518; Youmans, supra at 682.
The custodian of the records must satisfy the court that the
public-policy presumption in favor of disclosure is outweighed
by even more important public-policy considerations.
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.
It is not the trial court's or this court's role to hypothesize
reasons or to consider reasons for not allowing inspection
which were not asserted by the custodian.
If the custodian gives no reasons or gives insufficient reasons
for withholding a public record, a writ of mandamus
compelling the production of the records must issue.
Beckon, supra at 518, states, "[T]here is an absolute right to
inspect a public document in the absence of specifically
stated sufficient reasons to the contrary."
Because the Chief of Police has stated his reason for denying
inspection, it is the duty of this court, as it was for the
trial court, to determine as a matter of law whether the
custodian's stated reasons show that inspection would
cause harm to the public interest which outweighs the
presumptive public interest in allowing inspection.
In this case the Chief of Police refused to allow inspection of
the records showing the initial arrest charge because, he said,
he was "aware of possible economic and personal harm" to an
arrested person "if the charge would become known to
employers, credit agencies or even neighbors."
The Chief is not contending that the fact of an arrest
may be kept secret or that the names, of persons
arrested should not be revealed.
Accordingly, the serious constitutional due-process
question which would be posed by secret arrests
does not arise in this case.
Judge J. Skelly Wright, writing for the United States Court
of Appeals for the District of Columbia has said:
"The requirement that arrest books be open to the
public is to prevent any 'secret arrests,'
a concept odious to a democratic society. "
Morrow v. District of Columbia,
417 F.2d 728, 741-42 (D.C. Cir. 1969).
Justice Corrigan of the Ohio Supreme Court,
in a concurring opinion, stated:
"If there is no official arrest record at the jail,
except the private log of the jailer, how is it to
be determined if there was unnecessary delay in
according the person arrested his rights?"
"How is his family or a friend going to learn of
his arrest if, on inquiry, they are advised
there is no official record?"
"The constitutional foundation underlying these rights
is the respect a state or city must accord to
the dignity and worth of its citizens."
"It is an integral part of constitutional due process that a
public record of such arrests be maintained."
Dayton Newspapers, Inc. v. City of Dayton,
45 Ohio St.2d 107, 112,
341 N.E.2d 576 (1976).
The Chief of Police is not asserting the right
to make secret and undisclosed arrests.
He seeks to keep secret the charge upon which the initial
arrest was made unless formal charges of the same
or greater magnitude are ultimately filed.
Therefore, we are not confronted with a constitutional question,
but rather with one involving public-policy considerations
based upon the standards of Section 19.21(1) and (2), Stats.,
and court interpretations based on that statute.
Reasons which are not asserted for refusing
inspection are also significant.
The Chief of Police does not assert that there is any
law-enforcement interest in keeping secret the
charge upon which the police made an arrest.
No assertion is made that any liability will be incurred by the
police department or by the city if the charge is revealed.
The only reason asserted for nondisclosure is to prevent
possible damage to the reputations of arrested persons.
At first blush, it would appear that this reason, based upon
the intent to protect the reputations of arrested persons,
does not involve a public-policy interest, for the
interest sought to be protected is not that of the
public but of individuals who have been arrested.
Nevertheless, this court has concluded that the
public-policy interest may be served in protecting
the reputations of individuals.
In Youmans, supra, we emphasized that the right
to inspect public records is not absolute.
We pointed out, however:
"There may be situations where the harm done to the public
interest may outweigh the right of a member of the public to
have access to particular public records or documents."
In Youmans, we examined the provisions of Section 14.90(3)(e),
Stats. (1965), the public meeting law, to help determine what
factors might properly be considered to justify the
withholding of information in public records.
The public meeting law, which has been redrafted and
renumbered,[fn1] generally requires that meetings of
governmental bodies be open to the public but
specifies particular circumstances in which
executive or closed sessions may be held.
One of these exceptions to the general rule of openness is
when financial, medical, social or personal histories and
disciplinary data which may unduly damage reputations
are to be considered.[fn2]
We concluded in Youmans that the legislative policy
expressed in Section 14.90(3)(e), Stats.,
"carries over to the field of inspection
of public records and documents."
Hence, we have concluded that there is a public-policy
interest in protecting the reputations of citizens.
The law is now clear, however, that, where arrest records are
made public, the arrested person has no remedy for
an invasion of his reputational interests.
In Paul v. Davis, 424 U.S. 693 (1976), the United States Supreme
Court held that a cause of action under 42 U.S.C. Section 1983
would not lie against police officials who publicized the fact
of an arrest on a shoplifting charge at a time when the
defendant's guilt or innocence had not been resolved
because the charge had been
"filed away with leave [to reinstate]."
The charge was later dismissed.
The United States Supreme Court specifically held that
there is no constitutional protection against the state's
disclosure of arrest on a particular charge.
The limited nature of the holding in Davis should, however,
be recognized, for a Section 1983 action is appropriate
only where there is a denial of a federal constitutional
right under the color of state law.
Davis clearly stated that there is no constitutional
right to the privacy of arrest records.
The court said its previous recognition of certain
constitutionally protected "zones of privacy" in marriage,
procreation, and family matters did not constitute authority for
a constitutional privacy right preventing the state from
publicizing a record of the official act of an arrest.
Nor does it appear that any right of privacy
is afforded by state law.
Under the recently enacted right of privacy law, Section 895.50,
Stats., Chapter 176, Laws of 1977,
"One whose privacy is unreasonably invaded
is entitled to . . . relief."
Publicity given to a matter of private life may constitute
an invasion of the right of privacy.
However, the right to relief depends on whether there is
"a legitimate public interest in the matter involved."
The statute is to be construed
"in accordance with the developing common law of privacy."
The basic common law approach is that, where a matter of
legitimate public interest is concerned, no cause
of action for invasion of privacy will lie.
Williams v. KCMO Broadcasting Division Ä Meredith Corp.,
472 S.W.2d 1, 4 (Mo. Ct. of App. 1971).
That case is relevant to the matter before us, because it held
that an arrest is a matter of legitimate public interest and,
therefore, that a news report concerning an arrest could not be
the basis for a cause of action for invasion of privacy.
Moreover, the Wisconsin right of privacy statute,
Section 895.50(2)(c), specifically states,
"It is not an invasion of privacy to communicate
any information available to the public
as a matter of public record."
Accordingly, the legislature has determined that individuals
have no right of privacy in materials contained in public records
that are open to the public generally.
Chief Breier concedes that the arrest information
sought is contained in "public records."
Our holding that arrest information is available
to the press and public generally precludes any
cause of action for invasion of privacy.
The mere fact, however, that a person whose reputation
is injured by the release of an arrest record has no
remedy does not ipso facto demonstrate that it is
in the public interest to release such records.
The extent of harm to individual reputations by release
of certain records should be considered.
The police "blotter" or arrest list, inspection of which
is sought in this case, is an approximately chronological,
daily listing of arrests made.
If one were to use the police "blotter" to seek information
on arrests of a particular individual, it would be necessary
to know the approximate date on which the arrest occurred.
While the arrest list is useful to the news media in determining
on a daily basis whether any arrests of legitimate public
interest have occurred on a particular day, the arrest
list is of little use to employers or credit agencies
who seek to check the arrest records.
See, Morrow v. District of Columbia, supra at 741.
An entirely different issue would be presented to this court
if a right of access were claimed to the "rap sheets," the
alphabetical records, by the name of the arrested person,
which show all arrests of and police contacts with individuals,
regardless of whether an arrest or conviction resulted.
Although the Chief contends that an arrested person's reputation
is protected when the charge for which the arrest was made
is kept secret, it is not apparent that this is so.
The Chief is willing to make the fact of the arrest and the
identity of the arrested person available to the public.
An arrested person is not necessarily more protected from
damage to reputation when the police disclose the fact
of his arrest but not the charge.
The half-truth can in many cases be more damaging
to the individual than the full truth.
The disclosure of the fact of the arrest without stating
the reason for it might well lead to assumptions
more damaging than the actual facts.
It is apparent, then, that the release of these records would not
constitute an invasion of either a constitutionally or
statutorily protected right of privacy.
It is doubtful, moreover, that any suppression of these records
short of total secrecy Ä and the right to do that is not claimed
Ä would protect the reputations of arrested persons.
Nevertheless, the Chief of Police has asserted a legitimate
concern for the rights of individuals in their reputations
which must be recognized by this court.
This legitimate concern for the reputations of citizens is a
matter of public interest and must be weighed against the
interest of the public in having the records open.
This court has consistently held that, in the process of
balancing policy considerations favoring secrecy for whatever
reason against those favoring the public's right of inspection,
the public interest in open public records weighs heavily
in every case.
State ex rel. Dalton v. Mundy, supra at 196.
The presumption of the public records statute is that
there is a right to inspect a public document.
Only if there are sufficient public-policy reasons to
the contrary can that presumption be overcome.
The public records statute reflects a basic tenet of the
democratic system Ä that the electorate must be
informed of the workings of government.
It is a principle which underlies the first amendment
guarantees: of freedom of speech and of the press.
Thomas Jefferson wrote:
"If a nation expects to be ignorant and free in a state of
civilization, it expects what never was and never will be."
"The functionaries of every government have propensities
to command at will the liberty and property
of their constituents."
"There is no safe deposit for these but with
the people themselves, nor can they be safe
with them without information."
"Where the press is free and every man
able to read, all is safe."
The Political Writings of Thomas Jefferson 93,
Edited by E. Dumbauld (1955).
The United States Supreme Court has pointed out that
the first amendment assures the interchange of ideas
and promotes free political discussion to serve the
end of a government responsive to the people.
Branzburg v. Hayes, 408 U.S. 665 (1972).
We need not in the instant case resort to any asserted
constitutional requirement of open public records, because the
common law and the language employed by the legislature in the
public records law are sufficient for the decision of this case.
It is apparent, however, that the common law of Wisconsin and
the statutes enacted by the legislature are consistent with
views that the Constitution of the United States, particularly
the first amendment, may require open records in respect
to most public business.
See, e.g., Invester, "The Constitutional Right to Know,"
4 Hastings Const. L.Q. 109 (1977); Comment,
"The Rights of the Public and the Press to Gather
Information," 87 Harv. L. Rev. 1505 (1974);
"The First Amendment and the Public Right to
Information," 35 U. Pitt. L. Rev. 93 (1973).
Although we do not reach the constitutional issue because
Section 19.21, Stats., permits inspection in this case,
there are persuasive judicial decisions that state
that the right of access to certain public records
is implicit in the first amendment.
We rely upon these cases not for their constitutional
holdings, because the constitutional issue is not before us,
but because they underscore the strength of the public policy
favoring the inspection of public records.
The Texas Court of Civil Appeals in Houston Chronicle Publishing
Co. v. City of Houston, 531 S.W.2d 177 (1975), held that there
was a statutory right of access to the police "blotter" under
the state's open records law and a constitutional right of
access to reports which stated the offense committed
and other information on crimes.
It drew the line, however, and refused access to records which
dealt with the investigation of crime and to "rap sheets,"
which listed the arrest history of individuals.
"Rap sheets" were not to be open for inspection, because
the potential damage to the individual outweighed the
public interest in access to public records.
The Texas court, however, held unequivocally that the right to
inspect a document containing information about the initial
charge, a chronological police "blotter," was a right that
was protected both statutorily and constitutionally.
Herald Co. v. McNeal, 553 F.2d 1125 (8th Cir. 1977), held that
there was a colorable constitutional claim to support an
action which sought access to police-arrest registers.
The United States Supreme Court in Branzburg v. Hayes,
408 U.S. 665 (1972), suggested in dicta that the news
media are entitled to some constitutional protection
from official harassment that would tend to invade the
first-amendment rights to gather and publish news.
It did not, however, decide or discuss the question of whether
there is a first-amendment right of access to public records.
It is apparent from Wisconsin statutes and cases that
there is a strong public-policy interest favoring
the inspection of public records.
This public interest is particularly significant
where arrest records are concerned.
An arrest represents the exercise of the power of
the state to deprive a person of his liberty.
Under the fourth and fourteenth amendments an
arrest may be made only upon probable cause.
Giordenello v. United States,
357 U.S. 480, 485 (1958);
State v. Paszek,
50 Wis.2d 619, 624,
184 N.W.2d 836 (1971).
An arrest is a completed official act.
It must be preceded by the exercise of discretion in light
of the facts as reasonably viewed by an arresting officer
or by a magistrate who authorizes an arrest warrant.
It is an initial step in the judicial process,
which may be reviewed.
In particular, an arrest is appropriately tested
by the great writ, the writ of habeas corpus.
We cannot view the arrest, as apparently the Chief of Police
does, as merely a tentative and incomplete jural act.
Whether an arrest is subsequently ratified by the issuance of a
charge of the same or greater magnitude at a later time, it is,
nevertheless, at the time it is made, a completed official
act of the executive branch of government.
The power to arrest is one of the most awesome
weapons in the arsenal of the state.
It is an awesome weapon for the protection of the people,
but it is also a power that may be abused.
In every case, the fact of an arrest and the charge upon which
the arrest is made is a matter of legitimate public interest.
The power of arrest may be abused by taking persons into
custody on trivial charges when charges of greater
magnitude would be appropriate.
The power of arrest may be abused by overcharging for the purpose
of harassing individuals and with the expectation and intent that
the initial charge will be dismissed or substantially reduced.
In any event, curbing abuse of the arrest power
is only possible if the public can learn
how that power is exercised.
The mere revelation that a person has been arrested
does not make possible the public scrutiny of
lawfulness or appropriateness of police conduct,
nor, as we have pointed out, does it protect to
any significant degree the reputational
interest of the person arrested.
Moreover, the initial arrest charge is important,
not only to give public oversight to the police
function, but also to make possible public oversight
of the charging discretion of the prosecutor.
We cannot assume, and do not assume, that initial arrest
charges do not reflect the appropriate charge which
ultimately should be brought against the individual.
However, when a prosecutor subsequently determines
that he will reduce a charge brought by the police,
he prosecutor's discretion can better be reviewed
in light of the initial charge made by the
police at the time of the arrest.
It would appear to be a travesty of our judicial and law
enforcement system to acknowledge that the fact of arrest
may not be secret but to permit persons to be arrested or
to be held in custody without the public having the right
to know why the individual is in custody or upon what or
for what offense he is charged.
The continuation of this procedure could lead
to such abuses as preventive detention and
custody for secret reasons.
Under the rationale of Beckon and Youmans, supra,
we are obliged to balance the public interest in protecting
the reputations of individuals by
suppressing the information concerning initial
charges against the competing public interest in
access to the charges upon which arrests are made.
As pointed out above, there is nothing to show that the
The failure to reveal the cause of the initial arrest
disclosure of the fact of arrest without the reason
for the arrest is at all protective of reputation.
may well be more harmful than the full disclosure.
Although it must be conceded that the public interest in the
protection of the reputations of individuals is not
an insubstantial concern, that interest must be measured
against the strong public interest which favors
the right of inspection of public records.
Information concerning the operations of the police department
in making arrests and the charges upon which arrests are made is vital
to the democratic system; and presumptively, by statute, the records are
to be open.
While in some cases involving police functions there
is an overriding public interest in preserving secrecy (e.g.,
in the investigation of pending or proposed criminal charges), no overriding
concern is discernible when the executive act
of arrest has been completed.
An arrest is the exercise of the government's power
to deprive an individual of freedom.
The government is required to have probable cause whenever it
deprives an individual of personal liberty, and it is offensive to any
system of ordered liberty to permit the government to keep secret its reason
for depriving an individual of liberty.
From at least the time of the Magna Carta and the formalization
of the writ of habeas corpus, the concealment of the reason for arrest
has been as
odious as the concealment of the arrest itself.
It is fundamental to a free society that the
fact of arrest and the reason for arrest
be available to the public.
The trial court attempted to compel the Chief of
Police to make the arrest record available
on a case-by-case discretionary basis.
The Chief of Police, on his motion to review, has pointed
out the serious defects in the trial court's judgment.
Basically, the trial court would compel the Chief of Police to
justify withholding of information on an individual basis, with the additional
that the failure to provide satisfactory reasons
for refusing inspection within forty-eight hours
would permit the release of the information.
This approach has a number of obvious flaws.
As the Chief of Police has pointed out, it is not practical
for the Chief of Police or any administrator to weigh the
competing factors individually for each arrest in
a city the size of Milwaukee.
Additionally, the trial court seems to be suggesting that
it would be appropriate to make distinctions and to decide
to release or not release the arrest charge information on
the basis of the backgrounds of individuals and the value
of their reputations.
We have been given no justifiable rationale for this distinction.
If the cause of arrest is to be available to the public
in one case, it must be available in all cases.
Finally, this case-by-case determination would not only place
a tremendous burden upon police administrators but would be
likely to result in reckless, repetitive, and burdensome
litigation in the courts.
And although we have no reason to believe that the present
administration of the police department of the City of Milwaukee
would use the discretion afforded by the trial court's judgment
for oppression and abuse, this discretionary system provides a
built-in potential for abuse which would tempt police officials
to keep secret a charge in the very case when it is most
important that the charge be disclosed.
We are satisfied that the trial court's commendable attempt to
compromise these competing interests is likely to be more
productive of harm to all interests than it is likely
to reconcile them in the public interest.
Because of the statutory and common-law presumption that public
records should be available to the public and because of the
strong public-policy interests in making the arrest records
public, those interests clearly outweigh the amorphous,
ill-defined interests that the public might have in the
protection of the reputations of persons who have been arrested.
As stated above, the balance of policy considerations in respect
to the particular records does not vary from case to case.
We hold as a matter of law that the harm to the public interest
in the form of possible damage to arrested persons' reputations
does not outweigh the public interest in allowing inspection
of the police records which show the charges upon which
arrests were made.
The police "blotter" shall be open for inspection by the public
at any time when the custodian's office is open for business
and the "arrest list" or the police "blotter" is not actually
being used for the making of entries therein.
It is also argued that mandamus is not
the proper remedy in this case.
We conclude, however, that the public-policy interest in
every case is the same and that a uniform right of
inspection of daily arrest records is appropriate.
The defendants argue that mandamus is not the correct remedy
in the instant case, because, they apparently assert,
that remedy is only appropriate where the production
of a particular document is sought.
This is, of course, contrary to the precedents
established by this court.
In Beckon v. Emery, supra, we held that an appropriate remedy
was mandamus when what was sought was a production of all
records of a particular kind for the preceding year.
We hold that the information sought by the petitioners in this
action, i.e., the charges upon which arrests have been made,
must, as a matter of law, be available for inspection.
We stated in Beckon v. Emery,
". . . we have traditionally tested the right
to inspection by the use of mandamus."
36 Wis.2d at 518.
Accordingly, we direct that a writ of mandamus
be issued by the trial court.
By the Court. Ä Judgment reversed, and cause remanded with
directions to issue a writ of mandamus to compel defendants,
Harold A. Breier, Chief of Police, and the City of Milwaukee,
to make available for inspection the daily record of arrests
which shows the charges upon which the arrests were made.
[fn1] Section 19.83, Stats., is the current provision
setting out the general rule that meetings of
governmental bodies must be open.
The exceptions to the rule are listed
in Section 19.85, Stats.
[fn2] Section 14.90(3)(e), Stats. (1965), provided:
"(3) Nothing herein contained shall prevent
executive or closed sessions for purposes of:
". . . .
"(e) Financial, medical, social or personal
histories and disciplinary data which
may unduly damage reputations."
A substantially similar exception is now
provided in Section 19.85(1)(f), Stats.
COFFEY, J. (dissenting).
A police officer's grounds for arrest, consisting of his
conclusions as to probable cause, are not always
confirmed by the formal charges filed.
An arrest for contributing to the delinquency
of minor resulted in a murder charge in
State v. Babich,
258 Wis. 290,
45 N.W.2d 660 (1950).
More recently, a probation violation hold was the ground
for detention until a murder charge was lodged in
Wagner v. State,
89 Wis.2d 70,
277 N.W.2d 849 (1979).
A felony ground for arrest often results
in a prosecution for a misdemeanor.
In the latter case, does the individual arrested
have a protectable interest in his reputation?
Chief Breier thinks he does, and I agree.
In the City of Milwaukee, as the majority recognizes, there are a
number of arrests made for which no formal charges ever issue.
I have no wish to inhibit the press in the discharge
of its duty to provide information to the public.
However, the tension which exists between the public's right
to know and the individual's interest in reputation
requires a balancing of the competing interests.
The Chief struck the balance in this case by denying
access to the daily arrest lists until such
time as formal charges were issued.
I think his judgment is proper.
What public policy supports trampling on an individual's right of
privacy and making public a family argument wherein an arrest has
been made solely for the protection of the parties?
Why invade an individual's privacy by disclosing an arrest which
terminates, not in criminal charges, but in a private civil
mental commitment proceeding for the protection of the patient.
Why must we force a husband or wife, mother or father,
sister or brother to relive the incident with each and
every explanation that must be made to those informed
by a newspaper account? Must the patient carry this
stigma of temporary mental illness throughout life?
The majority holds that our new right of privacy statute,
Wis. Stats., Section 895.50, furnishes no protection to
a person arrested, even though the grounds for arrest
are never proven because no prosecution on
those grounds is attempted.
This holding protects the police department and
the newspaper from an invasion of privacy suit.
But the damage to the person arrested through
disclosure and publication is irreparable.
If any balancing were to be done between the reputational
interest of the individual and the newspaper's right to
have this piece of gossip gift wrapped for publication,
there is no doubt that the scales of justice would
weigh heavily on the side of the individual.
The legislature has given us a mandate to
develop a common law of privacy.
Wis. Stats., Section 895.50(3).
The majority refuses to do so by making an overbroad
interpretation of the "matter of public record"
exception in Section 895.50(2)(c).
Before this case, there was a clear distinction between public
records and matters contained in public documents.
In State ex rel. Youmans v. Owens,
28 Wis.2d 672,
137 N.W.2d 470,
139 N.W.2d 241 (1965)
the court said:
"There are many statutes that impose upon particular public
officers the duty to keep certain records which evidence
an express or implied legislative intent that such
records be open to public inspection.
With respect to public records of this category . . .
the officer custodian thereof would have no right
to refuse public inspection."
Id. at 685a.
Thus, matters of public record are those where the
legislature has imposed a duty to compile the record.
In all other cases, the common law requirement of a balancing
of interests as a condition precedent to disclosure
of the matters in public documents is continued.
The distinction between public records and matters contained
in public documents, heretofore so clearly made, is now
obliterated on the reasoning that anything contained
in a public document is a matter of public record.
This is an expansion of the legislative intent underlying the
public documents statute determined in our prior decisions.
Wis. Stats., Section 19.21(1) recites:
"19.21 Custody and delivery of
official property and records.
19.21(1) Each and every officer of the state, or of any
county, town, city, village, school district, or
other municipality or district, is the legal
custodian of and shall safely keep and preserve
all property and things received from his
predecessor or other persons and required by law
to be filed, deposited, or kept in his office, or
which are in the lawful possession or control of
himself or his deputies, or to the possession or
control of which he or they may be lawfully
entitled, as such officers.
The statute as written and as previously interpreted by
this court, does not contemplate the majority's holding
that any public document kept as a means of more
efficiently discharging the duties of office is
a public record subject to public release.
It is presumptuous for this court, which does not and cannot have
the benefit of public hearings and constituent expression of
opinion, to decide this matter of vital importance.
It is and should be up to the legislature to say
when an office record is a public document.
I would reverse the judgment appealed from and remand
the same with directions to dismiss the action.
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