GEORGE v. RECORD CUSTODIAN,
169 Wis.2d 573 (Ct.App. 1992)
485 N.W.2d 460
Larry GEORGE, Petitioner-Appellant,
RECORD CUSTODIAN, Respondent-Respondent.
Court of Appeals No. 91-1065.
Submitted on briefs November 6, 1991. Ä
Decided May 28, 1992.
APPEAL from an order of the circuit court for Dane county:
RICHARD J. CALLAWAY, Judge. Affirmed in part;
reversed in part and cause remanded.
For the petitioner-appellant the cause was submitted
on the brief of Larry George, pro se, of Waupun.
For the respondent-respondent the cause was submitted
on the brief of James E. Doyle, attorney general,
with Alan Lee, assistant attorney general.
Before Eich, C.J., Gartzke, P.J., and Sundby, J.
Larry George, an inmate of a Wisconsin correctional institution
at Waupun, appeals from an order quashing a writ of mandamus
directed to the record custodian at the Department of Justice and
dismissing his petition for the writ. We affirm in part and
reverse in part and remand for further proceedings.
The record custodian at the Department of Justice denied
George's three requests made under the open records law,
Sections 19.31-19.39, Stats.
George sought mandamus ordering release of the requested records,
one of the remedies available to a requester under Section
19.37(1)(a), Stats., or, in the alternative, that the custodian
show cause why release should not be ordered. The court issued
the writ. The custodian chose the show-cause alternative, and
made her return to the writ setting forth the reasons she
gave to George for denying each request.
The custodian did not submit the records to the court.
George's requests related to notices of claims served on the
attorney general under Section 893.82(3), Stats.[fn1] The purpose
of such notices is to permit the attorney general to investigate
claims which may result in judgments payable by the state under
the indemnity provisions of Section 895.46, Stats.
Ibrahim v. Samore,
118 Wis.2d 720, 726,
348 N.W.2d 554, 558 (1984).
A requester need not give a reason for his or
her request to inspect a public record.
Section 19.35(1)(i), Stats. However, George tells us that he
wants the records pertaining to notices of claims because
he proposes to show that the attorney general and
deputy are not following Section 893.82, Stats.
The trial court dismissed the petition for mandamus because the
investigation of claims against the state involves the
attorney/client privilege, and the public interest in maintaining
the confidentiality of information gathered in anticipation of
litigation outweighs the public interest in disclosure.
The court said that disclosure would defeat the orderly
process of litigation and would hinder the state
in the defense of its employees.
The ultimate decision whether to grant mandamus lies
within the sound discretion of the trial court.
State ex rel. Morke v. Wisconsin Parole Bd.,
148 Wis.2d 250, 252,
434 N.W.2d 824, 825 (Ct. App. 1988).
If, however, the custodian denies an open records law request
which is otherwise proper, the court must determine whether the
custodian gave reasons for that decision with the specificity
required by Section 19.35, Stats., and the case law.
If that specificity exists, the court must decide whether
the custodian's reasons are sufficient to outweigh
the strong public policy favoring disclosure.
Journal/Sentinel, Inc. v. AAGERUP,
145 Wis.2d 818, 821-22,
429 N.W.2d 772, 773 (Ct. App. 1988).
Answering the second question may require preliminary
and in camera examination by the trial court
of the record sought to be inspected.
State ex rel Youmans v. Owens,
28 Wis.2d 672, 682-83,
137 N.W.2d 470, 475 (1965).
If that specificity does not exist or if the reasons
given fail to outweigh the public policy favoring
that disclosure, the court should order release
under Section 19.37(1), Stats.
On September 22, 1990, George requested disclosure of data.
He asked for the number of claims the department received
in 1988, 1989 and 1990, the number it settled without
litigation as a direct result of notices of claims
and the number it disallowed in the same period.
The custodian refused to provide the data on grounds that the
department had no document providing that information and the
open records law does not require the creation of a new
record by extracting information from existing
records to satisfy a request.
The trial court properly dismissed the petition
with respect to George's first request.
The open records law affords the right to inspect and make or
receive a copy of a "record." Section 19.35(1)(b), Stats.
"Record" means any material on which . . .
information is recorded or preserved. . . .
Section 19.32(2), Stats.
A nonexistent record cannot be inspected or copied. The open
records law does not require the custodian to collect or compile
statistics or create a record for the benefit of a requester.
On October 10, 1990, George requested a copy of each notice of
claim served on the attorney general in 1989, a copy of "any
documents and/or letters regarding investigation, payment,
disallowance and all other documents/letters regarding
any notice of claims that were filed in 1989," and a
copy of such documents relating to George's notices
of claims he had served on the attorney
general in 1989 and 1990.
George requested that the custodian's fees be waived.
The custodian replied that in 1989 the attorney general had
received 588 notices of claims, many of which consisted of
multiple pages, and complying with George's request would
require the full-time services of one person for three days.
The custodian required an advance payment of $240
from George before she would begin the work.
When photocopying the records was completed George
would have to pay ten cents per page plus postage.
The custodian refused to furnish copies of the items
George requested regarding his own notices for the
reason that they pertained to investigations by
the attorney general as part of the litigation
process and are privileged under the
The trial court properly dismissed the petition as
to that part of George's second request not
involving his own notices of claims.
Section 19.35(3), Stats., authorizes imposing a fee on the
requester for the "actual, necessary and direct cost" of
locating, reproducing, mailing and shipping a copy of a record.
Prepayment may be required if the total exceeds $5.
Section 19.35(3)(f), Stats. George does not allege
in his petition that he made the prepayment and
agreed to make the other payments.
George claims that he is indigent.
The public records law confers no exemption as of
right on indigents from payment of the fees.
The custodian could have provided copies without a charge or
reduced the charge if the custodian determined that waiver or
reduction of the fees was in the public interest.
Section 19.35(3)(e), Stats.
The department declined to do so because of the
great expense in meeting George's request.
George did not challenge the reasonableness
of the required prepayment.
The custodian did not abuse her discretion.
The custodian having given a separate reason for denying
George's request regarding his own notices of claims,
we infer that the cost of compliance without a
prepayment is not the reason for denying
that part of his request.
We therefore apply the standard analysis, first determining
whether the custodian's denial was made with the required
specificity and, if it was, whether the reasons given
outweigh the strong public policy favoring disclosure.
145 Wis.2d at 821-22,
429 N.W.2d at 773.
To the extent George's request pertained to notices of his own
claims which are pending, the custodian's response with
regard to litigation was sufficiently specific.
As the trial court put it, compelling that disclosure could
hinder the attorney general's representation of the state or
individuals on pending claims should litigation result.
Whether that reason outweighs the policy in
favor of disclosure is a question of law.
Id. at 825,
429 N.W.2d at 775.
We conclude it does.
If George wants the records for his own litigation, the statutes
allow him to pursue discovery for that purpose.
Section 804.01, Stats.
The court in which the litigation is brought can
fine-tune the breadth of discovery by orders
protecting both George and the state.
Section 804.01(3), Stats.
However, disclosure regarding George's own claims that
are no longer pending would not hinder the
attorney general's representation.
Closed files used by a prosecutor in a criminal action have been
held to be "exempt from public access" under the open records law
State ex rel. Richards v. Foust,
165 Wis.2d 429, 430,
477 N.W.2d 608, 608 (1991).
The prosecutor's file may
"contain historical data leading up to the
prosecution which may be in the form of
anonymous statements, informants' statements,
or neighborhood investigations at the scene
of the crime Ä all of which are to be
protected if continuing cooperation of the
populace in criminal investigations is to be
Id. at 435,
477 N.W.2d at 610.
Those considerations do not apply to the attorney
general's closed files on investigations of civil
claims under Section 893.82(3), Stats.
Nevertheless, if a document pertaining to a nonpending claim
involves a communication to the attorney general covered by
the attorney/client privilege, the communication cannot
be disclosed without the client's consent.
The privilege belongs to the client rather than the attorney,
Swan Sales Corp. v. Joseph Schlitz Brewing Co.,
126 Wis.2d 16, 31-32,
374 N.W.2d 640, 648 (Ct. App. 1985),
and closing a claim file does not eliminate the
confidentiality of the client's communication.
The trial court must make a determination regarding
the attorney/client privilege where it is claimed
to exist with respect to the documents pertaining
to George's non-pending claims.
The trial court should order the custodian to produce
the documents pertaining to George a non-pending claims
and then make an in camera inspection of specific documents
claimed to include privileged communications to determine
whether the claim is accurate.
The court should order all documents not including
such a communication released to George.[fn2]
On October 16, 1990, George made his third request,
this time for
a copy of any documents that regard notice of claims
that have been filed in 1988 and 1989 including
documents that relate to whether an investigation into
the claim is conducted, the result of any investigation
that might have been conducted, and any documents that
relate to any claims that were paid in 1988 and 1989.
The custodian denied George's request because the documents
related to litigation and came within the attorney/client
privilege against disclosure.
George's third request duplicates the second request as to 1989.
The custodian's response refers to her earlier responses and
was made only fourteen days after she refused to waive the
fees and costs of complying with the second request.
We infer that the response to the third request incorporates
the same fee prepayment requirements of the second response.
As we have said, the custodian can properly withhold the
requested documents until George tenders a fee prepayment
and agrees to pay the cost of copying and mailing.
We have already held that records relating
to pending claims need not be disclosed.
Records relating to non-pending claims must be disclosed
unless an in camera inspection reveals that disclosure
would breach the attorney/client privilege.
The trial court should issue the writ covering non-pending
claims for 1988 and 1989, inspect the records for privileged
communications claimed to exist, and release to George copies
of all documents not including such a communication.
By the Court. Ä Order affirmed in part and reversed
in part and remanded for further proceedings.
[fn1] Section 893.82(3), Stats.,
provides in relevant part:
[N]o civil action or civil proceeding may be
brought against any state officer, employe or
agent for or on account of any act growing
out of or committed in the course of the
discharge of the officer's, employe's or
agent's duties . . . unless within 120 days
of the event causing the injury, damage or
death giving rise to the civil action or
civil proceeding, the claimant in the action
or proceeding serves upon the attorney
general written notice of a claim stating the
time, date, location and the circumstances of
the event giving rise to the claim. . . .
[fn2] This may require deleting privileged material
from a document and then releasing the edited
document Section 19.36(6), Stats., provides:
If a record contains information that may be
made public and information that may not be
made public, the authority having custody of
the record shall provide the information that
may be made public and delete the information
that may not be made public from the record