GEORGE v. RECORD CUSTODIAN,

169 Wis.2d 573 (Ct.App. 1992)

485 N.W.2d 460




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Larry GEORGE, Petitioner-Appellant, v. RECORD CUSTODIAN, Respondent-Respondent.
Court of Appeals No. 91-1065. Submitted on briefs November 6, 1991. Ä Decided May 28, 1992.
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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.
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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.



GARTZKE, P.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).
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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).
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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.



FIRST REQUEST



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.



SECOND REQUEST



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.
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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

attorney/client privilege.



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.
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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.



Journal/Sentinel,

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

          expected."
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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]
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THIRD REQUEST



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.
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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

          before release.
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