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STATE EX REL. HILL v. ZIMMERMAN, 196 Wis.2d 419 (Ct.App. 1995) 538 N.W.2d 608
422 423 424 425 426 427 428 429 430 431 432 _________________________________________________________________ STATE of Wisconsin
EX REL. Hubert HILL,
Petitioner-Appellant,



v.



Paul ZIMMERMAN and
Mya Haessig, Respondents-Respondents.

_________________________________________________________________



Court of Appeals No. 94-1861.



Submitted on briefs May 10, 1995. Ä



Decided August 16, 1995.
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APPEAL from an order of the circuit court for Racine County:

GERALD P. PTACEK, Judge. Affirmed.



On behalf of the petitioner-appellant, the cause was

submitted on the briefs of Hubert Hill, pro se.



On behalf of the respondents-respondents, the cause was submitted

on the brief of James E. Doyle, attorney general, and

Alan Lee, assistant attorney general.



Before Brown, Nettesheim and Snyder, JJ.
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NETTESHEIM, J.



Hubert Hill, an inmate in the Waupun Correctional Institution,

appeals pro se from an order quashing an alternative writ of

mandamus directed to the record custodian at the Division of

Probation and Parole of the Department of Corrections (DOC)

and dismissing his petition for the writ.



On appeal, Hill contends that the trial court erred when it

concluded:



(1)  the DOC record custodian was not required to grant Hill

     access to a copy of his presentence report without Hill

     first obtaining court authorization, and



(2)  the record custodian did not misuse its discretion when

     it required Hill to prepay for requested copies of

     documents in his file.



We reject Hill's challenges and affirm the trial court order.



BACKGROUND



On February 2, 1993, Hill sent a letter to Paul Zimmerman,

a DOC probation and parole supervisor, requesting copies

of "any and all . . . records" in his file.



Zimmerman responded to Hill's request in a letter dated

February 23, 1993, which informed Hill that his complete

file contained approximately 210 pages of material

and was close to three inches thick.



The letter estimated that at fifteen cents per page,

the copying charges would total "roughly $31.50."



The letter also informed Hill that if he would be

more specific about his request, he would not

have to incur unnecessary copying charges.



Subsequently, there were several communications between Hill and

the DOC whereby Hill further sought to obtain his file records.



On March 6, 1993, the DOC mailed Hill seventeen pages

from his file after receiving $2.55 from him.



A notation on the February 23, 1993, letter indicates that on

March 17, 1993, Hill was told that copying the remaining

documents "might cost $55.00."



In a letter dated April 29, 1993, Hill requested a copy

of his presentence report and "copies of documents

or any other papers which refer to me.'
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The following day, the record custodian sent Hill a Record

Request Response form, denying his request to his presentence

report due to confidentiality under Section 972.15(4), STATS.,

but granting access to the other file documents which

referred to him.



The response stated that Hill's "complete file has 276 pages" and

asked for prepayment of $41.40 pursuant to Section 19.35(3)(f),

STATS., for the cost of reproducing the documents.



Because Hill did not prepay the photocopying costs, the record

custodian did not release the requested documents to him.



Hill petitioned the Racine County Circuit Court for a writ

of mandamus ordering the release of the documents.



In its response, the DOC stated that it had complied with

Hill's requests, and that he would be sent the photocopies

when he prepaid the copying charge.



The trial court concluded that the DOC had complied

with its duties under the public records law.



It determined that until Hill prepaid the copying costs

and obtained court authorization to release his presentence

report, the DOC was not obligated to provide Hill

with copies of the documents.



Accordingly, the trial court quashed the writ

and dismissed the case.



Hill appeals.



DISCUSSION



The ultimate decision whether to grant mandamus

lies within the trial court's discretion.



George v. Record Custodian,

169 Wis.2d 573, 578,

485 N.W.2d 460, 462 (Ct.App. 1992).



A trial court properly exercises its discretion if it

reaches a reasonable conclusion based upon a consideration

of the applicable law and facts of record.
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Peplinski v. Fobe's Roofing, Inc.,

193 Wis.2d 6, 20,

531 N.W.2d 597, 602 (1995).



1.   Presentence Investigation Report



Hill argues that the trial court erred when it determined that

the record custodian was not required to grant him access to his

presentence report after sentencing under Section 972.15(4),

STATS., without first obtaining court authorization.



He contends that he should have been granted access to his

presentence report pursuant to Subsection 972.15(5)

of the statute.[fn1]



The interpretation of Section 972.15 presents a

question of law which we review de novo.



State v. Crowe,

189 Wis.2d 72, 76,

525 N.W.2d 291, 293 (Ct.App. 1994).[fn2]



The purpose of statutory construction is to ascertain

the intent of the legislature, and we look first

to the language of the statute itself.



Northwest Wholesale Lumber v. Anderson,

191 Wis.2d 278, 284,

528 N.W.2d 502, 505 (Ct.App. 1995).





If the words of the statute convey the legislative intent,

we end our inquiry and will not look beyond the statute's

plain language in search of other meanings. Id.



Section 972.15(2), STATS., allows a defense attorney, or a

defendant not represented by an attorney, access to the

contents of a defendant's presentence investigation

report prior to sentencing.[fn3]
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After sentencing, the presentence report is confidential

and is only available upon the authorization of the court

unless its release is authorized by Subsection 972.15(5).



Section 972.15(4).



Subsection 972.15(5) permits the DOC[fn4] to make the report

"available to other agencies or persons to use for purposes

related to correctional programming, parole consideration,

care and treatment, or research."



Hill contends that the DOC should have granted him access to

his presentence report pursuant to Section 972.15(5), STATS.,

because defendants are "other . . . persons" within the

meaning of the statute.



We are unpersuaded by this argument and conclude that Subsections

972.15(2) and (4) of Section 972.15 are the statutory subsections

that grant a defendant access to his or her presentence report.



Section 972.15(2), STATS., provides, "When a presentence

investigation report has been received the judge shall

disclose the contents of the report to the

defendant's attorney...prior to sentencing."



(Emphasis added.)



Thus, before sentencing, a defendant has an absolute

right to obtain the presentence report.



In such a setting, the defendant need not first

obtain the authorization of the circuit court.
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However, after sentencing, the presentence report



     "shall be confidential and shall not be made

     available to any person except upon specific

     authorization of the court."



Section 972.15(4) (emphasis added).



In contrast, Section 972.15(5), STATS., upon which

Hill relies, provides that the DOC



               "may make the report available

                to other agencies or persons."



(Emphasis added.)



We conclude that this language is clear and unambiguous.



The use of the word "may" implies the discretionary element

given to the department in making presentence reports

available to "other agencies or persons."



See Swatek v. County of Dane,

192 Wis.2d 47, 59,

531 N.W.2d 45, 50 (1995); Section 972.15(5).



In addition, the use of the word "other" refers to persons other

than the defendant, since the two preceding subsections already

cover the scenarios under which the defendant may obtain access

to the report.



Our examination of the legislative history of Section 972.15(5),

STATS., supports this interpretation.[fn5]



Included in the drafting record of the proposal to add Subsection

972.15(5) to Section 972.15 is an explanatory note describing

the purpose of the requested change.



The explanation reads:



     This proposal clarifies the department's authority

     to use the presentence investigation report.



     The report is critical for various correctional

     purposes such as parole board decisions,

     classification and treatment needs.
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     Under current law, it has not been clear if the PSI

     is allowed for departmental use and this draft

     clarifies our accessibility to the report.



LEGISLATIVE REFERENCE BUREAU DRAFTING RECORD,

1987 Wis. Act 227, Section 2.



We conclude that the addition of Subsection 972.15(5) to

Section 972.15, STATS., is simply an expression of legislative

intent to authorize the DOC to use presentence reports for

"correctional programming, parole consideration, care and

treatment, or research" and to make the reports available to

other agencies and persons other than a defendant for those

narrow purposes.



There is no indication of legislative intent to change the

procedures by which the defendant may already obtain

access to the presentence report as provided in

Subsections 972.15(2) and 972.15(4).[fn6]



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2.   Section 19.35, STATS.



Hill also objects to the record custodian requiring

prepayment of the reproduction costs.



He contends that he was not provided an



     "actual cost/fee for production of the requested documents."



See Section 19.35(3)(a), STATS.



Hill further maintains that he has "no legal duty

to pre-pay rough estimates" of the copying costs.



To address this argument, we are again required

to engage in statutory interpretation.



We conclude that the legislature's intent is

clear from the language of the statute.



The public records law permits access to



          "any material on which . . . information is

          recorded or preserved, regardless of physical

          form or characteristics, which has been

          created or is being kept by an

          authority."[fn7]



Sections 19.32(2), 19.35, STATS.



Section 19.35(1) grants any requester

the right to inspect any record.



Subsection 19.35(3)(a) permits an authority to



          "impose a fee upon the requester of a copy of

           a record which may not exceed the actual,

           necessary and direct cost of reproduction

           and transcription of the record."



Although an authority may not impose a fee that exceeds the

actual cost of reproducing documents, it may require prepayment

of the fees imposed if the total amount exceeds five dollars.



Section 19.35(3)(f), STATS.



We reject Hill's argument that an authority may not

give a reasonable estimate of the costs expected to



exceed five dollars and require payment before

it undertakes large copying tasks.
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This subsection is clearly intended to protect an

authority from squandering staff time, supplies

and equipment usage for a substantial copying

project that a requester might later disavow.



To read the statute otherwise would require the authority

to actually copy the documents to obtain an exact amount

of the costs, which would soundly defeat the purpose

of Section 19.35(3)(f).



In construing a statute, this court is to favor the

construction that fulfills the purpose of the

statute over one that defeats the purpose.



Seaquist v. Physicians Ins. Co.,

192 Wis.2d 530, 545,

531 N.W.2d 437, 442 (Ct.App. 1995).



We will not adopt an interpretation of a statute that leads to

an unreasonable result where there is a reasonable alternative.



Id.



Here, Hill makes no argument that the charges

were unreasonable or miscalculated.



Although Hill was given estimates prior to receiving a formal

Record Request Response, he was given an exact amount.



The record custodian informed Hill that his file

contained 276 pages and gave a final cost of

$41.40 based on a charge of fifteen cents per page.



In addition, Hill had previously been asked if he wanted to

narrow his request so as to reduce the copying charge.



We conclude that the trial court properly exercised its

discretion when it determined that the record custodian

acted within its authority under Section 19.35(3)(f), STATS.,

when it refused to copy Hill's file until payment was received.



The statute specifically authorizes an authority to

request prepayment if the cost exceeds five dollars.



If, when Hill prepays, the estimate exceeds the

actual cost, the overpayment can be refunded.
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We affirm the trial court's order quashing the alternative writ

of mandamus directed to the record custodian at the DOC.



By the Court. Order affirmed.



[fn1]     Section 972.15(5), STATS., provides in part: "The

          department may make the report available to other

          agencies or persons to use for purposes related to

          correctional programming, parole consideration,

          care and treatment, or research."



[fn2]     Section 972.15(1), STATS., provides that a

          trial court "may" order a presentence

          investigation report.



          Such reports are not constitutionally required,

          nor has the legislature mandated the use of them.



          Bruneau v. State,

          77 Wis.2d 166, 174,

          252 N.W.2d 347, 351 (1977).



[fn3]     Defendants represented by counsel also have

          the right to obtain copies of their

          presentence investigation reports.



          In



          State v. Skaff,

          152 Wis.2d 48, 56-57,

          447 N.W.2d 84, 88 (Ct.App. 1989),



          the court of appeals concluded that Section 972.15(2),

          STATS., could not be interpreted to grant defendants

          appearing without counsel greater rights to their

          presentence reports than those with counsel.



[fn4]     See Section 967.02(2), STATS. (in Chapters

          967 to 979, STATS., "Department" refers to

          the department of corrections except as

          provided in Section 975.001, STATS.).



[fn5]     Notwithstanding our determination that

          Subsection 972.15(5) is clear on its face,

          we may properly look to the legislative

          history to reinforce our conclusion

          that it is indeed unambiguous.



          See



          Novak v. Madison Motel Assocs.,

          188 Wis.2d 407, 416,

          525 N.W.2d 123, 126 (Ct. App. 1994).



[fn6]     Hill also argues that the Freedom of Information Act

          (FOIA) grants him a right to his presentence report

          because the DOC is an "agency" within the meaning of

          this federal statute.



          See 5 U.S.C. Section 552.



          However, for purposes of 5 U.S.C. Section 552, an

          "agency" is defined as "each authority of the

          Government of the United States."



          5 U.S.C. Sections 551(1), 552(f).



          A Wisconsin state agency is therefore not

          under the purview of 5 U.S.C. Section 552.



          Although Wisconsin courts have looked to federal case

          law interpreting the FOIA, it is only persuasive

          authority for Wisconsin's open records law, which

          governs Hill's claim.



          See



          State ex rel. Lank v. Rzentkowski,

          141 Wis.2d 846, 856 n.5,

          416 N.W.2d 635, 638 (Ct.App. 1987).



          It has been noted that enforcement of the FOIA has been

          less successful than the enforcement of Wisconsin's

          open records law, primarily because of the nine

          categories of exemptions in the FOIA.



          See



          Wisconsin Family Counseling Servs., Inc. v. State,

          95 Wis.2d 670, 672-73,

          291 N.W.2d 631, 633-34 (Ct.App. 1980);



          5 U.S.C. Section 552(b)(1)-(9).



[fn7]     An "authority" includes "any of the following

          having custody of a record: a state or local

          office, elected official, agency, board,

          commission, committee, council, department or

          public body corporate and politic created by

          constitution, law, ordinance, rule or order."



          Section 19.32(1), STATS.
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