MAYFAIR Chrysler-Plymouth v. Baldarotta,
162 Wis.2d 142 (1991)

469 N.W.2d 638

_______________________________________ CONTENTS



MAYFAIR Chrysler-Plymouth, Inc., Plaintiff-Respondent,



v.

  

Nick BALDAROTTA, Legal Custodian of Records of the

                 Wisconsin Department of Revenue and

                 Wisconsin Department of Revenue,



                 Defendants-Appellants-Petitioners.

_________________________________________________________________



Supreme Court No. 89-0985.    Argued 3/26/91.    Decided  5\23\91

_________________________________________________________________



TABLE OF CONTENTS TO PAGINATIION NUMBERS IN REPORTER:



142   150   153   156   159   162   165   168    171

148   151   154   157   160   163   166   169    172

149   152   155   158   161   164   167   170    173





(Reversing 154 Wis.2d 793, 453 N.W.2d 922 (Ct. App. 1990).)
Click HERE for decisions and opinions citing MAYFAIR.
 
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PAGE 148
REVIEW of a decision of the Court of Appeals

affirming a judgment of the Circuit Court

for Dane County, Judge Angela B. Bartell.



Reversed.



For the defendants-appellants-petitioners

the cause was argued by Robert W. Larsen,

assistant attorney general, with whom on

the briefs was Donald J. Hanaway,

attorney general.



For the petitioner-respondent there was a brief by

Jeffrey A. Kremers, Diane Slomowitz and Fox, Carpenter,

O'Neill & Shannon, S.C., Milwaukee and

oral argument by Mr. Kremers.
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PAGE 149
WILLIAM A. BABLITCH, J.



The issue presented involves Wisconsin's Open Records Law.



The question is whether the Department of Revenue must, in

essence, reveal the name of an informant who was promised

anonymity by field auditors for the Department of Revenue

(Department) in exchange for information regarding

certain actions by the informant's employer,

Mayfair Chrysler-Plymouth, Inc. (Mayfair).



The Department seeks review of a court of appeals' decision which

affirmed the circuit court's mandamus judgment compelling the

Department to permit Mayfair to inspect certain records in

the Department's custody relating to the Department's

audit of Mayfair's tax returns.



The Department denied access to portions of the records on the

ground that the records would reveal the name of a confidential

informant who had been given a pledge of confidentiality by the

Department in exchange for the information.



The court of appeals held that the Department's stated reason for

the denial was insufficient to overcome the general presumption

of access to public records in Wisconsin.



We hold that the Department's denial was legally specific.



In addition, we hold that the denial was legally sufficient

because the harm to the public interest from the disclosure

of portions of records which would reveal the identity of a

confidential informant who received a pledge of confidentiality

outweighs the public interest in disclosing these records.



Accordingly, we reverse the decision of the court of appeals.



On January 13, 1988, the plaintiff, Mayfair, submitted a written

request to the Department pursuant to Section 19.35, Stats.,[fn1]

to inspect and copy certain records in the Department's

possession.
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PAGE 150
These records, which had been provided by a former employee of

Mayfair, consisted of checks and business records which related

to alleged accounting procedures and practices of Mayfair.



The Department denied Mayfair's request on the ground that the

information was not a "record" as defined in Section 19.32(2).



In response Mayfair initiated this action for mandamus

relief, seeking release of the records pursuant

to Section 19.37(1)(a).[fn2]

                                                         Page 151
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PAGE 151
The circuit court held a telephone conference between the

parties on June 15, 1988, in which the Department agreed

to provide Mayfair redacted copies of documents it held

relating to Mayfair's business practices.



These copies were edited to delete any references which

would suggest the identity of the ex-employee informant

who provided the information to the Department.



This sanitization erased all numeric figures from

the documents creating, in effect, blank forms.



At this time, the Department also provided the circuit court

with unredacted copies of the documents for in camera review.



Mayfair then sent a supplemental request to the Department

seeking all records, including check stubs, cancelled checks

and timecards, and other business records which were received

from any source other than Mayfair.



The Department denied this request, stating that it could

provide no additional information because it had given a



     "pledge of confidentiality . . . to the informant,

      [and] the department must continue to deny access

      to portions of records which may identify

      the informant."[fn3]

                                                         Page 152
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PAGE 152
The Department also identified Steven Koritzinsky and

Brian Ertmer as the field auditors from the Department

who had had contact with the informant.



Mayfair deposed Koritzinsky and Ertmer regarding those contacts.



At his deposition, Koritzinsky recalled the Department's initial

contact with the informant:



     I was working at a taxpayer's office in a room, and he

     [the informant] walked into the room and first of all

     asked me if I was a field auditor with the Wisconsin

     Department of Revenue, and I told him that yes,

     I was.



     And he asked me or he told me he had some information,

     but before he said anything, he wanted to know if it

     would be given in confidence and if I had the power

     to give him a pledge of confidentiality.



Koritzinsky also testified as follows:



     Q:   Please continue with what happened after he

          asked you whether you had the authority to

          give a pledge of confidentiality.



     A:   I told him that I would give a pledge of

          confidentiality that would bind the

          department, and I said that, you

          know, we discussed, you know,

          preliminary discussions.



He was saying, well, what does this entail, you know,

giving me the impression that if I hadn't given the

pledge of confidentiality, he would not have

given me any information.
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PAGE 153
     Q:   Tell me as best you recall the exact words that

          he used when he first came into the room and

          after he asked if you were, in fact, a field

          auditor for the Wisconsin Department of Revenue?



     A:   I can tell you that it went something like this,

          that he had some information and that he would

          not disclose it unless we gave a pledge that we

          would not disclose his name in any proceedings.



                          *  *  *  *



     Q:   Tell me again what he asked for by way

          of a pledge of confidentiality?



     A:   Well, he did not want his name revealed

          in any way, shape, or form.



Regarding the scope of the pledge, Koritzinsky told the

informant that the Department would not disclose who he was

or provide documents that would give away his identity.



Ertmer met with the informant after

he was assigned the audit of Mayfair.



Ertmer told the informant that the information

he provided would be kept confidential.



The informant was never asked by Ertmer if he would provide

the documents without a pledge of confidentiality.



Ertmer acknowledged at the deposition that the documents

provided by the informant could have been obtained

by subpoena of Mayfair's records.



Mayfair then moved for summary judgment seeking release

of the records on the ground that the Department's reasons

for denying the request were not legally sufficient.



The circuit court granted Mayfair's request for summary

judgment and writ of mandamus, and awarded damages of $100.00,

statutory costs, and reasonable attorney's fees.
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PAGE 154
The court of appeals affirmed,

concluding that



               "the reasons asserted by the department were

               insufficient as a matter of law to support

               the denial of access to the records. . . ."



Mayfair Chrysler-Plymouth, Inc. v. Baldarotta,

154 Wis.2d 793, 795,

453 N.W.2d 922 (1990).



The court emphasized that the Department had violated Mayfair's



     "absolute right to inspect a public document in the absence

     of specifically stated sufficient reasons to the contrary."



Id. at 802 (quoting Newspapers, Inc. v. Breier,

 89 Wis.2d 417, 427,

279 N.W.2d 179 (1979).



Judge Gartzke dissented, arguing that because of the Department's

law enforcement functions, the Department must be able to protect

confidential informers who rely on its pledge of confidentiality.



This case presents two issues.



The first issue is whether the Department's denial of access to

portions of its records, on the ground that the information would

reveal the identity of a confidential informant who provided

information to the Department under a pledge of confidentiality,

satisfies the standards of legal specificity required by

Wisconsin's Open Records Law, Sections 19.31-.39, Stats.,

and our prior decisions.



The second issue, which arises only if the Department's

denial was legally specific, is whether the existence

of the Department's pledge of confidentiality to the

informant was a legally sufficient reason for denying

access to records that overcomes the public policy

presumption in favor of access to public records.



Both of these issues require us to apply Wisconsin's Open Records

Law and prior substantive common law principles construing the

right to inspect public records to the facts of this case.



     "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."
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PAGE 155
Breier, 89 Wis.2d at 427.



     "Whether harm to the public interest from inspection

     outweighs the public interest in inspection

     is a question of law."



Id.



This court reviews questions of law independently,

without deference to the trial court.



We hold that by stating that the requested records would reveal

the identity of a confidential informant who had been given a

pledge of confidentiality, the Department stated a legally

specific reason for denying Mayfair's record request.



The stated reason of informant confidentiality implies obvious

and well-known public policy interests in effective law

enforcement that carry sufficient meaning and import for

the requester to understand the basis for the denial.



We also hold that the denial was legally sufficient because the

harm to the public interest from disclosure of portions of

records which would reveal an informant's identity outweighs

the public interest in disclosing these records.



The Wisconsin Open Records Law reflects the common law principles

favoring access to public records that have long been recognized

in Wisconsin.



The strong public policy favoring access is stated in

Section 19.31, Stats.:



     Declaration of policy.



     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.
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PAGE 156
The right to inspect records is not, of course, absolute.



In some instances, the custodian should deny access to public

records because the harm to the public interest from

inspection outweighs the public interest in inspection.



Breier, 89 Wis.2d at 427; State ex rel.



Youmans v. Owens, 28 Wis.2d 672, 681, 137 N.W.2d 470 (1965).



Access should also be denied where there is a clear statutory

exception or an existing common law limitation to the general

presumption favoring the right of inspection of public records.



Breier,

89 Wis.2d at 426;



Hathaway v. Green Bay School Dist.,

116 Wis.2d 388, 395-96,

342 N.W.2d 682 (1984).



The existence of a statutory exception or common law

limitation indicates that the legislature or this

court has predetermined that the harm to the public

interest from inspection outweighs the benefits.



     "Thus, the general presumption of our law is that public

     records shall be open to the public unless there is a clear

     statutory exception, unless there exists a limitation under

     the common law, or unless there is an overriding public

     interest in keeping the public record confidential."



Hathaway, 116 Wis.2d at 397.



In addition to the substantive standards which protect the

public's interest in having access to public records, this

court has imposed procedural standards for custodians to

follow when considering a public records request to

preserve the integrity of the public records law.
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PAGE 157
When a demand to inspect public records is made, the

custodian must weigh the competing interests involved

and determine whether permitting inspection would result

in harm to the public interest that outweighs the recognized

public interest in inspecting public records.



Breier, 89 Wis.2d at 427.



If the custodian determines that the records request should

be denied, then he must state the specific policy reasons

that he relied on to make that determination.



Breier, 89 Wis.2d at 927; Youmans, 28 Wis.2d at 682.



In addition, Section 19.35(4)(b), Stats.,

requires that

               "[i]f an authority denies a written request

                in whole or in part, the requester shall

                receive from the authority a written

                statement of the reasons for denying

                the written request."



The court of appeals in Milwaukee Journal v. Call,



153 Wis.2d 313, 317,

450 N.W.2d 515 (Ct. App. 1989),



recognized that these procedural and substantive standards

established by our prior decisions essentially comprise a

two-step procedure for reviewing public records cases:



First,    we must decide if the trial court correctly

          assessed whether the custodian's denial of

          access was made with the requisite specificity.



Second,   we determine whether the stated reasons are

          sufficient to permit withholding,

          itself a two-step analysis.



Here, our inquiry is:    (1)  did the trial court make a factual

                              determination supported by the

                              record of whether the documents  

                              implicate the public interests in

                              secrecy  asserted by the custodians



and, if so,              (2)  do the countervailing interests

                              outweigh the public interest

                              in release.

(Citations omitted.)
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PAGE 158
We adopt this framework for analyzing the question of

whether a custodian's denial of access can be

sustained by the reviewing court.



Under the Call test, the threshold issue is whether the

custodian has stated legally specific reasons for

denying the records request.



Because the development of the specificity requirement in

our prior decisions is important to understanding its

purpose and application, we first discuss several of

the cases in which we have addressed this standard.



We established in Youmans, 28 Wis.2d at 682, that

any denial of a public records request must



     "state specifically the reasons for this denial."



The request in Youmans was for reports concerning an

investigation into alleged police misconduct that had been

compiled by the Waukesha City Attorney for the mayor of Waukesha.



The request was denied on the grounds that the reports were

attorney work product and that their disclosure



     "would be harmful to the public interest."



Id. at 683.



We concluded that there was no authority to support the work

product theory and that the stated justification that disclosure

would be harmful to the public interest was the equivalent of

offering no reason at all for denying the request.



Id. at 683-84.



Because no prior Wisconsin case had required the reasons for

denial to be specially stated, we remanded the case to

allow the defendant to advance more specific

reasons for denying the request.



Id. at 685a.



Our first opportunity to apply the standards established in

Youmans, was in Beckon v. Emery, 36 Wis.2d 510, 513-14,

153 N.W.2d 501 (1967), in which a police chief refused

to produce requested police reports on the grounds that

the reports were "confidential" and that access to them



     "would not be in the public interest."



We held that this denial did not provide specific reasons

for denying inspection and that the stated justifications

were no more than legal conclusions.
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PAGE 159
In addition, we emphasized the following factors:



     In the instant case the failure of the custodial

     officer to state with specificity his reasons for

     withholding public records made it impossible for

     the courts to make the contemplated review.



     No doubt a number of plausible and perhaps valid

     reasons for withholding these documents could have

     been specified and, if so specified, the trial

     court might after the determination outlined

     in Youmans have upheld the police

     chief's determination.



     But no reason was given, and from the record

     it is obvious that no attempt was made by

     the chief of police or his representatives

     to comply with Youmans and its rationale.



Id. at 518.



Thus, Beckon stressed that specific policy reasons are necessary

to provide a basis for the courts to review the denial and

to ensure that the custodian does not arbitrarily reject

requests without applying the substantive standards

established by this court.



Because no specific reasons were given for denying inspection

in Beckon, we granted the writ of mandamus compelling

the production of the reports.



Id.



The final case we consider is Breier, 89 Wis.2d at 421, in which

the police chief refused to disclose to the press and the public

the charges upon which suspects were arrested on the grounds

that disclosure may cause "personal and economic harm"

to the individual's arrested.



We stated that to deny a request for inspection the custodian

"must state specific public-policy reasons for the refusal."



Id. at 427.



We also emphasized that:



     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.
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PAGE 160
     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.



Id.



We concluded that the police chief had stated specific

public-policy reasons by asserting his concern the personal

and economic welfare of arrested suspects if the fact of the

arrest became known to others.



We construed this reasoning as implicating a concern for

the reputation of arrested citizens, which we held

was a legitimate public-policy interest.



Id. at 429.



We held, however, that while the denial was legally specific,

the writ of mandamus should be granted because



     "as a matter of law . . the harm to the public interest

      in the form of possible damage to arrested persons'

      reputations does not outweigh the public interest

      in allowing inspection of the police records which

      show the charges upon which arrests were made."



Id. at 440.



These three cases demonstrate the two primary reasons

for requiring the custodian's denial of a records

request to state specific policy reasons.



First, the specificity requirement provides a means of

restraining custodians from arbitrarily denying access to public

records without weighing whether the harm to the public interest

from inspection outweighs the public interest in inspection.



Second, specific policy reasons are necessary to provide the

requester with sufficient notice of the grounds for denial to

enable him to prepare a challenge to the withholding and to

provide a basis for review in the event of a court action.



The specificity requirement is, therefore, procedural in nature.



The focus at this stage is not on whether the custodian was

correct in denying the inspection request; it is on whether the

custodian has fulfilled his obligation to the public to provide

a meaningful and reviewable response to the request.
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PAGE 161
Mayfair asserts that the Department's denial, which

relied solely on the pledge of confidentiality

given to its informant, failed to state any



     "specific public policy reasons"



as required by Breier and should be rejected on that basis.



Mayfair argues that although the Department has asserted that

a denial based on informant confidentiality implies a public

interest in efficient and effective law enforcement, these

reasons cannot be considered by this court under Breier

because the Department never made reference to law

enforcement interests in its denial and the

Department was not acting as a law enforcement agency.



In addition, Mayfair argues that the Department's sole reliance

upon informant confidentiality is as unspecific as the reasons

rejected by this court in Beckon.



Mayfair asserts that, as in Beckon, the written denial in the

present case was not sufficiently specific because it did not

provide any foundation from which to evaluate the substantive

merits of the Department's denial.



We disagree.



We conclude that the Department's stated reason for denying

Mayfair's request was sufficiently specific because it

satisfied the purposes of the specificity requirement.



Unlike the "reasons" stated in Youmans and Beckon, the

Department's denial provided Mayfair with sufficient

notice of the basis for the denial.



By stating that the request was being denied because a pledge of

confidentiality has been given to an informant who provided

information to the Department, the Department made it known

that its decision was controlled by the obvious and well-known

public interest in effective law enforcement that is

served by providing informants with confidentiality.
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PAGE 162
Contrary to Mayfair's assertion, the reason for denying

the request in this case was in no way analogous to the

police chiefs reasons in Beckon that the report was

"confidential" and its release "would be

contrary to the public interest."



The reasons stated in Beckon were legal conclusions that

provided no inkling of what facts were being relied on

to deny the request or of the type of public interest

implicated by the records request.



By contrast, the Department's reason for denying the request in

this case informed Mayfair that the records were not accessible

because they would reveal the name of a confidential informant

who had received a pledge of confidentiality.



Thus, the denial apprised Mayfair of the underlying facts

affecting the Department's decision and focused Mayfair's

attention on whether the public interest in maintaining

the confidentiality of informants outweighed that of

access to public records.



Under these circumstances, we cannot say that the Department

arbitrarily denied the records request or failed to provide

sufficient notice of the basis for the denial to enable

Mayfair to choose a course of action.



The denial identified that there was a pending audit of Mayfair,

informed Mayfair of the type of records involved, explained that

the information was deleted solely out of concern for maintaining

pledges of confidentiality to informants, and identified the

Department employees who dealt with the informant.



The denial stated a legitimate policy interest in maintaining

pledges of confidentiality to informants.



This information was more than sufficient to permit Mayfair

to make an informed decision whether to challenge the

denial and to provide a basis for the court

to review the sufficiency of the denial.[fn4]
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PAGE 163
Moreover, Mayfair's strict interpretation of Breier's requirement

that public policy reasons must be specifically stated in the

denial ignores the purpose of the specificity requirement.



Where the public policy reasons behind the stated reason for the

denial are obvious and well-known, as in this case, we will not

refuse to consider the merits of the denial.



And while, as we said in Breier, we will not "hypothesize"

reasons why disclosure would be harmful to the public interest

or consider additional reasons not asserted in the denial,

such hypothesizing is unnecessary in a case such as this

where the arguments supporting the reason for the

denial are obvious to all.



The stated reasons for the denial must be specific,

but they need not state the obvious.



Because the Department's custodian cited reasons that carried

sufficient meaning and import to allow Mayfair to understand

the basis for the denial, we conclude that the merits of

the Department's denial should be considered.



We refuse to exalt form over substance when the basic

purposes of the specificity requirement have been met.
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PAGE 164
Accordingly, we hold that the Department's denial

in this case was sufficiently specific.



The second issue is whether the existence of the Department's

pledge of confidentiality to the informant was a legally

sufficient reason for denying access to the records that

overcomes the public policy presumption in favor

of access to public records.



The Call test provides a two-step analysis

for making this determination.



The reviewing court must first determine whether the circuit

court made a factual determination supported by the record

of whether the documents implicate the public interests

in confidentiality asserted by the custodian.



The reviewing court must also determine whether the

countervailing interests in confidentiality outweigh

the public interest in release.



We first address the question of whether the circuit court made

a determination supported by the record regarding whether the

public policy interest in informant confidentiality asserted

by the custodian in this case is in fact implicated by the

records withheld by the Department.



Our review of the withheld documents confirms the circuit court's

implicit finding that their release would divulge the name

of the confidential informant who provided the records.



The informant's name could easily be determined through the

information contained on the checks, earnings statements,

time cards, etc. that the Department obtained from

the informant and withheld from Mayfair.



We next address the question of whether the asserted interests

in preserving the confidentiality of the informer who was

given a pledge of confidentiality outweigh the recognized

public interest in the release of public records.



As we noted above, the question of whether harm to the public

interest from inspection outweighs the public interest in

inspection is a question of law, which this court reviews

independently.



See Breier, 89 Wis.2d at 427.
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PAGE 165
The Department contends that no balancing of interests is

necessary in this case because this court established in

Stelloh v. Liban, 21 Wis.2d 119, 124 N.W.2d 101 (1963),

that, as a matter of law, the government has a privilege

to provide confidentiality to informants in both civil

and criminal contexts.



The Department argues that Stelloh created a common law

limitation applicable to public records requests that

controls the outcome of this case.



We do not agree that the government has such a blank check.



In Stelloh, 21 Wis.2d at 119, which involved a civil action

against police for false arrest, we held that the police

had a privilege to withhold the identity of a confidential

informant whose information the police relied upon to

justify their arrest of the plaintiff.



We based our decision on the need to encourage citizen

participation in law enforcement:



     The plaintiff admits, as well he must, that there

     exists a privilege based on public policy on behalf of

     the government not to disclose the names of the

     informers.



This is a general rule in criminal cases.



8 Wigmore, Evidence (McNaughton rev.), p. 761,

Section 2374; see also Anno.

76 A.L.R. 2d 262.



     The basis for the privilege is grounded upon the duty of

     every citizen to aid in the enforcement of the law.



     To encourage such citizen participation in law enforcement,

     it is essential the informer's identity not be disclosed.



     Regardless of the informer's motive, he is entitled to

     protection for "himself and his family from harm, to

     preclude adverse social reactions and to avoid the

     risk of defamation or malicious prosecution

     actions against him."



Wigmore, Evidence, supra, page 762.  Id. at 125.
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PAGE 166
We further stated in Stelloh, 21 Wis.2d at 127, that



     "the privilege of nondisclosure of identity

      applies to a civil suit for the same reason

      it exists in a criminal action."



The public policy interest in informant confidentiality is also

reflected in Section 905.10(1), Stats.[fn5] which provides the

government with a privilege to refuse to disclose the identity

of an informant who has furnished investigative information to

a law enforcement officer or member of a legislative committee

or its staff.



The Federal Advisory Committee's Note to Fed. R. Evid. 510,

on which Section 905.10, is based, states that



          "[a]lthough the tradition of protecting the identity

           of informers has evolved in an essentially criminal

           setting, noncriminal law enforcement situations

           involving possibilities of reprisal against

           informers fall within the purview of

           the considerations out of which

           the privilege originated."



See 59 Wis.2d R 146 (1974).



We do not agree with the Department that there is an established

common law limitation that permits any government agency to

withhold public records based on the fact that a pledge

of confidentiality has been given to a confidential

informant for the purpose of obtaining information.



Stelloh only contemplated the use of informants by law

enforcement officers, as does Section 905.10, Stats.



Moreover, Stelloh was not a public records request that

required the countervailing interests in secrecy

and disclosure to be weighed against each other.
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PAGE 167
Nevertheless, we are persuaded, for the same policy reasons that

controlled our decision in Stelloh, that government agencies that

are engaged in a law enforcement function may refuse to disclose

portions of records that would reveal the names of confidential

informants who have been given a valid pledge of confidentiality.



The confidential informant enhances law enforcement efforts by

providing information about criminal and noncriminal law

violations that often cannot be obtained through

conventional investigation methods.



The efficiency of law enforcement efforts is served by focusing

the attention of investigators upon suspected offenders.



The informant may also be in a position to provide

evidence and insight into the alleged violations.



As Stelloh emphasizes, however, all these advantages to efficient

and effective law enforcement would be lost if informants were

not adequately protected from the stigma and potential harm of

public disclosure of their identities.



For this reason, we hold as a matter of law that where

criminal or noncriminal law enforcement interests are

at stake, the need to maintain the integrity of the

government's pledges of confidentiality to informants

may on balance outweigh the public's interest in

having access to portions of records that could

identify a confidential informant.[fn6]
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PAGE 168
We therefore turn to the ultimate question: does the

Department's pledge of confidentiality in this case

outweigh the public's interest in having access to

what would otherwise be public records?



Mayfair vigorously challenges the Department's use of

the pledge, echoing the view expressed by the

circuit court and the court of appeals that



     " allowing a custodian to hand out pledges of

       confidentiality freely, with no explanation

       or showing of necessity, is contrary to the

       legislative policy objectives of the

       Open Records Law."



Mayfair, 154 Wis.2d at 799.



Mayfair emphasizes that the Wisconsin Attorney General has

repeatedly and consistently ruled that for a pledge of

confidentiality to warrant nondisclosure under the Act

the pledge must satisfy the following four criteria:



First,    there must have been a clear pledge made.



Second,   the pledge should have been made in

          order to obtain the information.



Third,    the pledge must have been necessary

          to obtain the information.



Finally,  even if a pledge of confidentiality

          fulfills these criteria, thus making

          the record containing the information

          obtained clearly within the exception,

          the custodian must still make an additional

          determination in each instance that the harm

          to the public interest that would result from

          permitting inspection outweighs the great public

          interest in full inspection of public records.



60 Op. Atty. Gen. 284, 289 (1971).



This test has since been reiterated in succeeding

Attorney General Opinions.



See  74 Op. Atty. Gen. 14, 15 (1985);

     63 Op. Atty. Gen. 400, 407-08 (1974);

     61 Op. Atty. Gen. 361, 365 (1972).
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We conclude that these four criteria serve as

an appropriate basis for our review.



Mayfair asserts that none of these factors were met by the

Department, contending that the Department agreed to issue

the pledge without making any base inquiries as to:



     the nature of the informant's purported information;



     whether such information could be obtained through

     alternate sources;



     whether any information would in fact be obtainable

     from the informant absent the issuance of a pledge;



     the scope of the pledge itself;



     or the extent to which the public interest would

     be offended by the issuance of the pledge.



We agree with Mayfair that the attorney general's four-prong

test provides a valuable framework for evaluating the

validity of a pledge of confidentiality.



The circuit court applied this test and determined that while the

Department had satisfied the first two prongs of the test,

they had not satisfied the third and fourth prongs.



We agree with the circuit court with respect

to the first two factors.



We conclude that the circuit court did not apply the proper

standard with respect to the third and fourth prongs of the test.



We find that the Department satisfied the four factors

necessary to establish a valid pledge of confidentiality.



The first three factors of the test are established by Steven

Koritzinsky's testimony indicating that he told the informant

that he would give him a pledge of confidentiality after the

informant had first informed Koritzinsky that he would not

provide information if it could not be given in confidence.



The circuit court and the court of appeals erroneously

determined that the third factor, which requires that

the pledge was necessary to obtain the information,

was not met because Mayfair's records could have

been obtained by subpoena rather than directly

from the informer.
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The lower courts' interpretation of this factor ignores

the distinct probability that no information at all

would have been obtained from the informant if the

Department had not met his initial request

for confidentiality.



The only reason the Department knew who to look at,

what records to look at, and what to look for

is because the informant told them.



The Department's subpoena authority would have been useless

if the informant never told them who or what he suspected.



The Department would never have known that the target

was Mayfair, much less what to look for at Mayfair.



The evidence provided by the informant gave the Department

a basis for determining whether the informant's allegation

was of any merit and targeted Mayfair and the specific

files of Mayfair's that needed to be examined

by the Department's auditors.



In addition, if Mayfair had not provided complete records

to the Department, the informant's documents may also

have served to alert the Department of that fact.



Based on the above, we conclude that the circuit court was

in error in determining that the third factor was not met.



The fourth prong of the test, requiring the custodian to make

an additional determination in each instance that the harm

to the public interest that would result from permitting

inspection outweighs the great public interest

in full inspection, is likewise met.



Mayfair argues that the Department never conducted the

weighing required by the fourth prong of the test.



We disagree.



The record reveals that the informant emphasized to the

Department's auditor, Steven Koritzinsky, that he would

not give any information to the Department if his name

would be revealed in "any way, shape, or form."



Implicit in the Department's refusal to permit full

inspection of the records because of its pledge of

confidentiality is the obvious and well recognized

public interest in effective law enforcement that

is served by providing informants with confidentiality

and maintaining that confidentiality.
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Anonymous sources at times provide the only source

for valuable information.



Although the public may be well served by knowing the name of the

informant in any particular case, the public in many instances is

better served by obtaining the information from an informant at

the expense of not learning the informant's identity.



Much valuable information could be lost to law enforcement

if it became known to potential informants that promises

of confidentiality were meaningless.



That is the obvious judgment made by the Department

in this case, and we will not reverse it.



There may be cases in which the overriding public interest in

inspection compels disclosure, but this is not such a case.



We conclude that the Department's denial of Mayfair's record

request satisfied the requirements of Wisconsin's Open Records

Law because it was legally specific and legally sufficient.



By informing Mayfair that their request was being denied because

a pledge of confidentiality had been given to a confidential

informant who had provided the records, the Department

adequately communicated that the denial was based on

the obvious and well-known law enforcement interests

served by confidential informants.



Thus, the Department satisfied its obligation to Mayfair to not

arbitrarily deny the request without providing reasons specific

enough for Mayfair to understand the basis for the denial.



The denial was legally sufficient because the harm to the

public interest in effective law enforcement from

disclosing portions of records that could reveal

the identity of a confidential informant outweighs

the public interest in inspection of those records.
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We also conclude it is in the public interest to permit the

Department to provide pledges of confidentiality to citizens who

may not otherwise step forward to assist law enforcement efforts.



Therefore, we reverse the decision of the court of appeals.



By the Court. Ä The decision of the court of appeals is reversed.



[fn1]     19.35          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.



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...



          19.35(4) TIME FOR COMPLIANCE AND PROCEDURES.



          19.35(4)(a)    Each authority, upon request for any

                         record, shall, as soon as practicable

                         and without delay, either fill the

                         request or notify the requester of

                         the authority's determination to

                         deny the request in whole or in

                         part and the reasons therefor...



          19.35(4(b)     If an authority denies a written request

                         in whole or in part, the requester shall

                         receive from the authority a written

                         statement of the reasons for

                         denying the written request.



                         Every written denial of a request by an

                         authority shall inform the requester

                         that if the request for the record was

                         made in writing, then the determination

                         is subject to review by mandamus under

                         s. 19.37(1) or upon application to the

                         attorney general or a district attorney.



[fn2]     19.37 Enforcement and penalties.



          19.37(1) MANDAMUS.



          If an authority withholds a record or a part of a

          record or delays granting access to a record or part

          of a record after a written request for disclosure is

          made, the requester may pursue either, or both, of the

          alternatives under paragraphs 19.37(1)(a) and (b).





          19.37(1)(a)    The requester may bring an action

                         for mandamus asking a court to

                         order release of the record.



The court may permit the parties or their attorneys to

have access to the requested record under restrictions

or protective orders as the court deems appropriate.



[fn3]     The Department's letter of denial provided in full:

          On July 6, 1988, I received your letter of July 1,

          1988, requesting access to records relating to

          pending audits of Mayfair Chrysler-Plymouth, Inc.

          which have been received from sources other

          than Mayfair.



          I am informed that you have already been provided with

          copies of the types of records which are responsive to

          your request and are in the possession of the

          department, except those copies are edited to delete

          content which would directly or circumstantially

          identify a confidential informant who provided

          information to the department.



          In respect to the pledge of confidentiality given by

          department employes to the informant, the department

          must continue to deny access to portions of records

          which may identify the informant.



          Enclosed as Exhibit A is a copy of the notes of

          department employe Brian Ertmer who obtained the

          records under a pledge of confidentiality.



          The remainder of the records are business records

          of Mayfair received from the informant.



          Exhibits B, C and D are representative

          of those records.



          Since the disclosure of virtually any entries on the

          records would tend to reveal the identity of the

          informant, all such entries have been deleted.



          Exhibits B, C and D are representative of the

          extent to which the department must delete

          information in honor of its pledge of

          confidentiality to the informant.



[fn4]     Furthermore we note that although the court of appeals

          has not directly addressed the question of whether

          informant confidentiality alone is a sufficiently

          specific reason for denying access to records, it has

          strongly suggested that informant confidentiality is a

          sufficiently specific reason for denying a request.



          See Call, 153 Wis.2d at 318.



               "Prejudice to an ongoing criminal investigation,

               crime detection and informant confidentiality are

               all specific public policy reasons for

               confidentiality that meet the specificity;

               requirement.";



          Journal/Sentinel, Inc. v. Aagerup, 

          145 Wis.2d 818, 826,

          429 N.W.2d 779 (Ct. App. 1988)



          (indicating that there was an overriding public

          interest in preserving secrecy when information

          might reveal an informer's identity).







[fn5]     905.10    Identity of informer.



          905.10(1) RULE OF PRIVILEGE.



                    The federal government or a state or

                    subdivision thereof has a privilege

                    to refuse to disclose the identity

                    of a person who has furnished

                    information relating to or

                    assisting in an investigation

                    of possible violation of law

                    to a law enforcement officer

                    or member of a legislative

                    committee or its staff

                    conducting an investigation.



[fn6]     This holding is not dependent on the government agency

          establishing that the informant would suffer adverse

          consequences from disclosure of his identity.



          If the informant has received a pledge of

          confidentiality in exchange for information,

          the agreement should not be broken on the basis

          of the circuit court's view that the informant did

          not need to seek the pledge of confidentiality for

          which he bargained.



          In the present case, the potential adverse consequences

          to the informant from disclosure are unknown, but, as

          Judge Gartzke noted in his dissent,



               "[t]he tenacity with which Mayfair seeks that

                name should gove the informer concern."
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MAYFAIR DECISIONS and OPINIONS

PENDING