NEWSPAPERS, INC. v. BREIER

 89 Wis.2d 417 (1979)

279 N.W.2d 179
                    CONTENTS TABLE




NEWSPAPERS, INC., and another,
Petitioners-Appellants,



v.



BREIER, Chief of Police,
City of Milwaukee
Defendant-Respondent


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

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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.

Christensen.



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.



HEFFERNAN, J.



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.
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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

were arrested.



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

     neighbors."



     "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."
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    "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."
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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.
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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.
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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.



See,



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.
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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."



(at 683)



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.
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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."

(Emphasis supplied.)
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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).
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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."



(at 681)



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.
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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."



(at 685)



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.
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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."



Section 895.50(2)(c).



The statute is to be construed



     "in accordance with the developing common law of privacy."



Section 895.50(3).



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."
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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.
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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.
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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);



Comment,

          "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.
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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.
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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.
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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
disclosure of the fact of arrest without the reason
for the arrest is at all protective of reputation.
 
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The failure to reveal the cause of the initial arrest
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 public-interest
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 requirement
that the failure to provide satisfactory reasons
for refusing inspection within forty-eight hours

would permit the release of the information.
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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.
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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.
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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.
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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.
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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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