MAYFAIR Chrysler-Plymouth v. Baldarotta,
162 Wis.2d 142 (1991)
469 N.W.2d 638
MAYFAIR Chrysler-Plymouth, Inc., Plaintiff-Respondent,
Nick BALDAROTTA, Legal Custodian of Records of the
Wisconsin Department of Revenue and
Wisconsin Department of Revenue,
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).)
for decisions and opinions citing MAYFAIR.
REVIEW of a decision of the Court of Appeals
affirming a judgment of the Circuit Court
for Dane County, Judge Angela B. Bartell.
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,
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.
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
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]
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 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,
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,
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.
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.
The court of appeals affirmed,
"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."
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."
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
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
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.
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.
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.
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.,
"[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
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.
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
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.
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.
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.
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.
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 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.
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]
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.
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
See Breier, 89 Wis.2d at 427.
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
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.
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.
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]
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).
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
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.
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
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.
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.
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.
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.
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
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;
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."