FOX v. BOCK, 149 Wis.2d 403 (1989)
             438 N.W.2d 589
 
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Peter D. FOX,
Plaintiff-Appellant,

v.

William F. BOCK,
Racine County Corporation Counsel,
Defendant-Respondent.

Supreme Court No. 87-1853.
Argued 3/28/89. Decided 4/27/1989.

Motion for reconsideration denied,
with $50 costs, on June 20, 1989.

On certification from the court of appeals.

        438 N.W.2d 589

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APPEAL from a judgment of the
Circuit Court for Racine County:

Stephen A. Simanek, Judge.

Reversed and remanded.

For the plaintiff-appellant there
were briefs (in court of appeals) by
Constantine, Christensen, Krohn & Kerscher,
S.C., Racine, and oral argument by
Charles H. Constantine.

For the defendant-respondent there
were briefs (in court of appeals) by
Kenneth F. Hostak, Emily S. Mueller,
and Thompson & Coates, Ltd., Racine,
and oral argument by Mr. Hostak.

Amicus curiae briefs (in court of appeals)
were filed by Linda M. Clifford and
LaFollette & Sinykin, Madison, for
Wisconsin Freedom of Information Council
and the Racine Journal Times; and by
John K. O'Connell, Madison, for
Wisconsin Counties Association.

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STEINMETZ, J.

This appeal was certified to this court under
the provisions of Section 809.61, Stats.

We accepted certification.

The issue in this case is whether a study
conducted by the Institute for Liability
Management, which was commissioned by and
prepared for the Racine County Corporation
Counsel's office, is a record as that term
is defined in Section 19.32(2), Stats. [1]

The trial court found it was not a record.

We hold it was a record.

William F. Bock has been the Racine County
Corporation Counsel since 1976.

The Deputy Corporation Counsel was
Susan Torok.

In late 1985 and early 1986, Bock became
concerned about the increasing number of
civil claims which were being brought
against Racine county and ordered
a study of the problem.

His concerns stemmed in part from the fact
that Racine county was self-insured.

After making his concerns known to Leonard
Ziolkowski, then the Racine County Executive,
sufficient funds were set aside in the Racine
county budget for the 1986 fiscal year to
allow Bock to hire a consultant to conduct
a risk management study of certain
Racine county departments.

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The corporation counsel contacted
various consulting firms requesting
bids to conduct the study.

Early in 1986 a contract was entered into
with the Institute for Liability Management
of Vienna, Virginia (the Institute) to
conduct a study at a cost to
Racine county of $24,000.

Prior to the study being prepared by the
Institute and prior to the Institute making
a proposal, members of the corporation
counsel's office had conversations with
representatives of the Institute about the
Wisconsin Public Records Law and discussed
their concerns about possible public access
to any report prepared by the Institute.

Members of the Institute came to Racine
county to gather information in early 1987.

Members of the Racine County Sheriff's
Department, Personnel Department,
Corporation Counsel's office and District
Attorney's office were interviewed.

The study was completed in
March or April of 1987.

In June of 1987 the corporation counsel
received two written copies of the study.

The word "draft" was stamped on
each written page of the study.

Although copies of the study were not
released by the corporation counsel, at least
two members of the sheriffs department were
allowed to review the entire document in the
corporation counsel's offices.

Other members of the sheriffs command staff
reviewed portions of the document dealing
with their respective areas of
responsibility.

In addition to preparing the written report,
the Institute also sent a representative to
Racine county to conduct briefing and
training seminars primarily for
members of the sheriffs department.

Two separate seminars were given
to county personnel.

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One was a general educational seminar, and
the other was a briefing seminar dealing with
specific aspects of the report and was
directed specifically to members of the
sheriffs department command staff.

The study and seminars included
recommendations regarding changes in
certain policies and procedures of
the county and the sheriffs department.

The Institute's representative spent four
days in Racine conducting these seminars and
meeting with various Racine county employees.

On the first day of his visit, the deputy
corporation counsel, Torok, told the
representative certain changes
had to be made in the report.

The corrections included typographical
errors, an obvious error in the report
dealing with the absence of an exercise
area in the jail facility and certain
other errors, the nature of which
have not been disclosed.

At the same time that the Institute's
representative was informed that certain
changes had to be made, he was also informed
that the existence of the study had "leaked
out," and that someone had asked Dennis
Kornwolf, then County Executive of Racine,
for a copy of the report.

The representative responded that he would
take the two copies of the report back to
Washington, and he would wait to hear
from the corporation counsel before
taking any action.

The Institute still has the two copies of the
report and, to the best of knowledge of Bock
and Torok, has taken no steps to make any
changes in the form or content of the report
since the copies were returned to the
Institute by the corporation counsel.

Bock testified he had no intention of
requesting the study from the Institute
unless he could be assured that the report,
in whatever form it took, would not be
subject to inspection by the public.

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After the report had been returned to the
Institute, the Racine county sheriffs
department began implementing certain changes
in procedures and policies pursuant to
suggestions contained in the report and
discussions during the in-service seminars
conducted by the Institute's representative.

The corporation counsel assisted briefly in
implementing certain of these changes.

Torok expressed satisfaction with the
performance of the Institute and the $24,000
has been paid in full to the Institute for
the study and seminars.

On July 8, 1987, Peter D. Fox, editor of the
Journal Times, a Racine county newspaper,
served a written request on Bock for a copy
of the study prepared by the Institute.

In a letter dated July 9, 1987,
Bock denied Fox's request stating
various reasons for the denial.

For purposes of this appeal it is sufficient
to reiterate two of the reasons for the
denial of the request:  Bock did not have the
report in his possession, and further, in his
opinion, the report was not a "record" as
that term is defined in Section 19.32, Stats.

Pursuant to Section 19.37(1), Stats., Fox
then filed and served upon Bock
a petition for writ of mandamus.

Later Fox served upon Bock a motion and
notice of motion to produce
the Institute's study.

One of the affirmative defenses in the return
to the petition for writ of mandamus was that
the Institute's study was prepared in draft
form and did not constitute a record under
Section 19.32(2).

A hearing on the petition filed by Fox was
held before the Honorable Stephen A. Simanek,
Racine county circuit court judge.

The court, after hearing the testimony of
Bock and Torok and hearing arguments of
counsel, held that the document requested
from the corporation counsel was a "draft"
and not a "record" under Section 19.32(2),
Stats., and therefore, not subject to
inspection by Fox.

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Fox appealed that ruling to
the court of appeals.

Whether a statute applies to a given set
of facts presents a question of law.

Such questions are decided independent
of and without deference to the
trial court's decision.

Bucyrus-Erie Co. v. ILHR Department,
90 Wis.2d 408,
280 N.W.2d 142 (1979).

Policy underlying the public records law
is set forth in Section 19.31, Stats.:

In recognition of the fact that a
representative government is dependent upon
an informed electorate, it is declared to be
the public policy of this state that all
persons are entitled to the greatest possible
information regarding the affairs of
government and the official acts of those
officers and employes who represent them.

Further, providing persons with such
information is declared to be an essential
function of a representative government and
an integral part of the routine duties of
officers and employes whose responsibility
it is to provide such information.

To that end, Sections 19.32 to 19.37 shall
be construed in every instance with a
presumption of complete public access,
consistent with the conduct of
governmental business.

The denial of public access generally is
contrary to the public interest, and only in
an exceptional case may access be denied.
 

To that end, Section 19.35(1)(a) provides:

Access to records; fees.

19.35(1) Right to inspection.

19.35(1)(a) Except as otherwise provided
by law, any requester has a right
to inspect any record.

Substantive common law principles construing
the right to inspect, copy or receive copies
of records shall remain in effect.

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The exemptions to the requirement of a
governmental body to meet in open session
under Section 19.85 are indicative of public
policy, but may be used as grounds for
denying public access to a record only if
the authority or legal custodian under
Section 19.33 makes a specific demonstration
that there is a need to restrict public
access at the time that the request to
inspect or copy the record is made.

The trial court dismissed the petition
after concluding that this document
was only a draft and therefore not
subject to disclosure.

The trial court's ruling on this threshold
question made it unnecessary for it to apply
the remaining portion of Section 19.35(1),
Stats., which may restrict public access.

We only discuss the threshold question
of whether this document was a "draft"
or a "record" and direct the trial
court to apply the latter portion
of Section 19.35(1)(a) on remand.

See, e.g.,

Newspapers, Inc. v. Breier,
89 Wis.2d 417,
279 N.W.2d 179 (1979);

Beckon v. Emery,
36 Wis.2d 510, 516-19,
153 N.W.2d 501 (1967).

State ex rel. Youmans v. Owens,
32 Wis.2d 11,
144 N.W.2d 793 (1966);

State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681-82,
139 N.W.2d 241,
137 N.W.2d 470 (1965).

The term "record" is broadly defined in
Section 19.32(2), Stats., as

   any material on which written, drawn,
   printed, spoken, visual or electromagnetic
   information is recorded or preserved,
   regardless of physical form or
   characteristics, which has been
   created or is being kept by an authority.

Section 19.32(2) further states that the term

   "record" does not include drafts, notes,
   preliminary computations and like
   materials, prepared for the originator's
   personal use or prepared by the originator
   in the name of a person for whom the
   originator is working . . . . . . .

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Any exceptions to the general rule of
disclosure must be narrowly construed.

Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984).

In Hathaway we stated:

   Section 19.21, Stats., in light of
   prior cases, must be broadly
   construed to favor disclosure.

   Exceptions should be recognized for what
   they are, instances in derogation of the
   general legislative intent, and should,
   therefore, be narrowly construed; and
   unless the exception is explicit and
   unequivocal, it will not be held to
   be an exception.

   It would be contrary to general well
   established principles of Freedom of
   Information statutes to hold that, by
   implication only, any type of record
   can be held from public inspection.

In

International Union v. Gooding,
251 Wis. 362, 371-72,
29 N.W.2d 730 (1947),

this court analyzed Section 18.01(1), Stats.,
predecessor to Section 19.21.

The issue before the court was whether a
petition filed with the Wisconsin Employment
Relations Board was subject to inspection.

In determining whether this document was
subject to disclosure, the court stated:

   It is the rule independently of statute
   that public records include not only
   papers specifically required to be kept
   by a public officer but all written
   memorials made by a public officer within
   his authority where such writings
   constitute a convenient, appropriate,
   or customary method of discharging
   the duties of the office . . . .

   In the case at bar the petition was
   received and given a file number.

   It aroused official action of the board
   resulting in a formal written opinion
   which was also filed.

   This appears to us to indicate that it
   is a public record or at least that it
   is a paper in the hands of a public
   official as such officer.

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   While the petition itself is not a
   memorial by the officer, it is in
   a sense a part of a docket which
   includes the memorial of an officer
   and for the foregoing reasons
   must be considered to be included
   in the description of papers
   affected by Section 18.01(1), Stats.

   We think this might be true even if the
   commission could originally have consigned
   the paper to the wastebasket or have
   returned it to its sender, without
   taking formal action . . . . . .

The court went on to hold that
the document was within the
provisions of Section 18.01(1).

Id. at 372.

In

Youmans,
28 Wis.2d at 679-80,

the court cited Gooding with approval.

In Youmans the Waukesha Freeman demanded
access to material submitted to the mayor
by the city attorney of Waukesha after the
city attorney conducted an investigation of
alleged misconduct on the part of members of
the Waukesha Police Department.

This court deemed it unimportant that
the mayor never received a final or
formal report from the city attorney.

The court stated:

   Defendant mayor as "head of the . . .
   police departments" is entitled to a
   report of any investigation of the police
   department made by the city attorney.

   We deem it wholly immaterial, on the issue
   of whether defendant was in legal custody
   of the papers sought to be inspected, that
   here the city attorney did not submit a
   formal report stating the conclusions
   he had reached as a result of his
   investigation, but instead merely filed
   with the mayor the statements of
   persons interviewed and
   interdepartmental memoranda.

Whether the document is in "preliminary" form
and therefore not in final form is not
determinative of whether it is a record.

The trial court erred when it found that the
Institute's study was a draft unless and
until the final corrections were made on it.

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If the trial court's rulings were correct,
legal custodians of public records could
circumvent the effect of Chapter 19, Stats.,
by merely claiming that the report is
not in final form and further
changes must be made in it.

In this case, on cross-examination,
corporation counsel was asked:

   "And the truth of the matter is you
    have no intent to ever request
    that report with the corrections."

He answered:

   "If there's any possibility that
    that report would be made public
    and available to the public,
    then I don't want the report."

Later when asked if the Institute
had fulfilled its obligation to
the county he stated:

   "Well, if   if I keep a written report
    from being divulged to other people,
    then I want one of those, and I
    would probably request it.

    If that is not possible, then I guess
    in my opinion they have completed their
    work because we'll have to operate from
    what we can remember was in the report."

Public policy set forth in Section 19.31,
Stats., favoring public disclosure does not
allow a custodian of a record to delay or
cancel delivery of the "final" report in an
attempt to have it qualified as a "draft."

The study was not a "draft" for
purposes of the statute.

The Institute's study was delivered, approved
by Bock and Torok and paid for by the county.

It was reviewed by not only the corporation
counsel but members of the sheriffs
department command staff, and a seminar
was given on the report.

Changes in practices and procedures in the
sheriffs department demonstrate that
recommendations of the study have
been implemented.

A determination that a document is a draft
prepared for the originator's personal
use creates an exception to the
general rule of disclosure.

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It is a draft if it is prepared for and
utilized for the originator's personal use.

The Institute's study was not created for
the personal use of the corporation counsel
nor was it so utilized.

Under Section 19.32(2), Stats., a document
prepared for something other than the
originator's personal use, whether it
is in preliminary form or stamped "draft,"
whether recommendations of the document
are implemented or not, is by
definition a record.

The trial court held that the
corporation counsel was the
originator of the study document.

The Institute was not the originator
because the study was not prepared
for its personal use.

If the corporation counsel's office was the
originator, it was not the only office
utilizing the study.

Members of the sheriffs department and their
command staff were not only allowed to review
the study, but also were required to review
the study and attend a seminar regarding it.

Based upon recommendations in the study,
policy and procedural changes within the
sheriffs department are being implemented.

It was used for other than personal use of
the corporation counsel or the Institute.

Regardless of who was the originator of this
document, it does not conform with the
exclusionary language of Section 19.32(2),
Stats., and therefore it was a record.

The corporation counsel refused inspection of
the document based on the statutory exemption
set forth in Section 19.32(2), Stats.  Such
denial of inspection is contrary to public
policy and the public interest.

Upon a demand to inspect a record,

    "it is incumbent upon the custodian of
     the record to refuse the demand for
     inspection and state specifically the
     reasons for this refusal"

when the custodian determines that the
harmful effect of permitting inspection
outweighs the benefit to be gained by
allowing inspection.

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Youmans,
28 Wis.2d at 682.

In

Newspapers,
89 Wis.2d at 426-27,

the court stated:

   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.

In Beckon, 36 Wis.2d at 518, we stated:

   We pointed out in Youmans that if an
   action were brought to compel the
   production of documents the officer could
   then, if he wished, stand upon the reasons
   given, and the documents could be examined
   by the court in camera to determine
   whether in light of the reasons specified
   the inspection of the documents would
   cause harm to the public interest that
   would outweigh the presumptive benefit to
   be derived from granting inspection.

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We further stated in

Newspapers,
89 Wis.2d at 427:

   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,

   "There is an absolute right to inspect a
    public document in the absence of
    specifically stated sufficient
    reasons to the contrary."

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Upon a demand for inspection, the custodian
of the document bears the burden of proof of
facts demonstrating that it is a draft.

The decision that a document is a draft
under Section 19.32(2), Stats.,
is a legal conclusion.

However, if there exists a factual dispute,
the custodian has the burden of producing
evidence and persuading the finder of fact
that the proffered facts are true.

Hochgurtel v. San Felippo,
78 Wis.2d 70, 86-87,
253 N.W.2d 526 (1977).

The custodian must satisfy the finder of fact
by the greater weight of the credible
evidence that the document is a draft.

Merely labeling each page of the document
"draft" does not make the document a draft as
that term is defined in Section 19.32(2),
Stats.  Similarly, corporation counsel cannot
keep the document classified as a draft by
not having the final corrections made on it.

It was not prepared for the personal
use of the corporation counsel.

It was a report completed, paid for and
relied upon by the county and therefore it
does not comport with the exclusions set
forth in the public access statute.

The decision of the trial court is reversed
and the case is remanded for the application
of Beckon and Newspapers.

By the Court.

   The judgment of the Racine county
   circuit court is reversed and cause
   remanded for further proceedings
   consistent with this opinion.

ABRAHAMSON, J., took no part.

[1]

Section 19.32(2), Stats., provides as
follows:

"Record" means any material on which
written, drawn, printed, spoken, visual
or electromagnetic information is recorded
or preserved, regardless of physical form
or characteristics, which has been created
or is being kept by an authority.

"Record" includes, but is not limited to,
handwritten, typed or printed pages, maps,
charts, photographs, films, recordings,
tapes (including computer tapes), and
computer printouts.

"Record" does not include drafts, notes,
preliminary computations and like materials
prepared for the originator's personal use or
prepared by the originator in the name of a
person for whom the originator is working;

materials which are purely the personal
property of the custodian and have no
relation to his or her office;

materials to which access is limited by
copyright, patent or bequest; and published
materials in the possession of an authority
other than a public library which are
available for sale, or which are available
for inspection at a public library.

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