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,
Paul ZIMMERMAN and
Mya Haessig, Respondents-Respondents.
Court of Appeals No. 94-1861.
Submitted on briefs May 10, 1995. Ä
Decided August 16, 1995.
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.
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
(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.
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.'
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.
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.
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]
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).
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."
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.
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."
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.
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
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]
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
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.
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.
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.
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
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.
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.
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.
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.
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.