MILWAUKEE JOURNAL v. CALL,
153 Wis.2d 313 (Ct.App. 1989)
450 N.W.2d 515
MILWAUKEE JOURNAL, Plaintiff-Appellant,
Patrick L. CALL, City of Mequon Chief of Police,
Fernando Perez, Ozaukee County Sheriff,
Court of Appeals No. 88-2201.
Argued September 28, 1989. Ä
Decided November 22, 1989.
APPEAL from orders of the circuit court for
Ozaukee county: JOSEPH D. McCORMACK, Judge.
Reversed and cause remanded with directions.
On behalf of the plaintiff-appellant, the cause was submitted on
the briefs of Eugenia G. Carter and Brady C. Williamson of
LaFollette & Sinykin and oral argument by
Brady C. Williamson, of Madison.
On behalf of the defendant-respondent, Patrick L. Call, there was
a brief and oral argument by John A. Meyer of Prieve, Meyer &
Nestigen, of Milwaukee.
On behalf of the defendant-respondent, Fernando Perez, there was
a brief and oral argument by John H. Lindquist of vonBriesen &
Purtell, of Milwaukee.
On behalf of the State of Wisconsin, there was an amicus brief by
Donald J. Hanaway, attorney general and Robert W. Larsen,
assistant attorney general and oral argument by Robert W. Larsen,
On behalf of the Wisconsin Newspaper Association, Wisconsin
Freedom of Information Council and Wisconsin Broadcasters
Association, there was an amicus brief by Jon M. Counsell and
Gregory B. Conway of Liebmann, Conway, Olejniczak & Jerry, of
Green Bay and oral argument by Gregory B. Conway.
Before Brown, P.J., Scott and Nettesheim, JJ.
In this public records case, we revisit the question raised
Journal/Sentinel, Inc. v. Aagerup,
145 Wis.2d 818,
429 N.W.2d 772 (Ct. App. 1988),
of what documents may be properly withheld from the
public in an unresolved murder investigation.
We hold that in this case the trial court did not properly
evaluate the sufficiency of the custodians' reasons for denying
the Milwaukee Journal access to the documents it sought.
We reverse and remand to give the trial court
an opportunity to do so.
In July of 1987, Tara Kassens was found dead,
presumably the victim of a homicide.
No one has yet been charged with her murder, but the police have
accumulated a multitude of documents in connection with the case.
In August of 1987, two reporters from the Journal wrote to
Ozaukee County Sheriff Perez and City of Mequon Chief of Police
Call, custodians of the Kassens file, requesting access to
that file pursuant to the Wisconsin Open Records Law.
See Sections 19.31 through 19.37, Stats. Access was denied.
The Journal then instituted this mandamus action.
The Journal moved for summary judgment, arguing that
the reasons for denial of access were insufficient.
The court denied the motion.
It then ordered an in camera hearing
regarding the records sought.
Following an aborted evidentiary hearing and a three-week recess
for the custodians' file review, a scheduling conference
At that time, Sheriff Perez and Chief of Police Call
objected to the Journal's counsel participating
in the hearing and file review.
The court agreed with Perez and Call and denied
the Journal's motion for limited access.
Pursuant to the trial court's order, Perez and Call
submitted affidavits describing in some detail why
access to each document should be denied to the public.
They also submitted under seal all documents that
they claimed were exempt from disclosure.
The court thereafter reviewed the documents alone and in camera.
It found no public interest in release and denied
the Journal's request.
At the same time, the court denied the Journal's
renewed motion for limited access to the documents.
The court then dismissed the case and the Journal appeals.
In Aagerup, this court set out the two-step process of
our review in 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.
145 Wis.2d at 821,
429 N.W.2d at 773.
Second, we determine whether the stated reasons are sufficient
to permit withholding, itself a two-step analysis.
at 825-26, 429 N.W.2d at 775.
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.
Our first line of inquiry is directly controlled by Aagerup.
There, as here, the custodian refused release of approximately
one-quarter of an autopsy report on the grounds that it fell
within a recognized exception to the open meetings law,
specifically crime detection.[fn1]
We held that this was sufficiently specific.
Id. at 823-24, 429 N.W.2d at 774.
The custodians here did the same.
Chief Call cited the documents' status as part of an
ongoing criminal investigation that could be
prejudiced by disclosure of details.
He cited concern for detecting and prosecuting offenders.
He cited informant confidentiality.
Prejudice to an ongoing criminal investigation, crime detection
and informant confidentiality are all specific public policy
reasons for confidentiality that meet the specificity
145 Wis. 2d at 826,
429 N.W.2d at 775;[fn2]
Newspapers, Inc. v. Breier,
89 Wis.2d 417, 437-38,
279 N.W.2d 179, 188-89 (1979).
Sheriff Perez cited crime detection as the only specific
protected public interest implicated.
As we noted in Aagerup, this is a succinct but adequate recital.
145 Wis.2d at 823-24,
429 N.W.2d at 774.
We turn then to the second question in our review: did the trial
court make a determination supported by the record regarding
whether the public policy interests in secrecy asserted by the
custodians are in fact implicated by the documents.
We hold that it did not do so.
The trial court conducted an in camera proceeding, without
the presence of appellant's counsel, in which it
reviewed each document and photo.
Its decision appears to reflect two factual findings:
one, "a great deal of [the documentation] could
be released without much chance of
apparent harm to the investigation";
two, "it is also clear on the face of other
information that its release would be
destructive to the investigation."
We will uphold a trial court's findings of fact
unless they are clearly erroneous.
Sec. 805.17(2), Stats.
These findings of fact, however, are insufficient
for our review. The record here is voluminous.
There is no document-by-document discussion
of pertinence in the record.
We have reviewed the record, and we are unable to determine
which documents constitute those that the trial court thought
could be released and those that could not without making our
own findings of fact.
Ours is an error-correcting, not a fact-finding, tribunal.
State v. Grawien,
123 Wis.2d 428, 432,
367 N.W.2d 816, 818 (Ct. App. 1985).
When faced with inadequate findings, this court can
supplement those findings when the evidence is clear,
or remand for further findings when it is not.
State v. Williams,
104 Wis.2d 15, 22,
310 N.W.2d 601, 605 (1981).
We conclude that the latter is the appropriate remedy here.
Findings as to each document's efficacy as a crime detection
tool when secret and/or its ability to reveal an informant's
identity are factual.
Many of the documents here are cryptic and susceptible of
competing inferences as to their value to the investigation.
Fact finding and the drawing of inferences
are for the trial court.
Onalaska Elec. Heating, Inc. v. Schaller,
94 Wis.2d 493, 501,
288 N.W.2d 829, 833 (1980).
We would not here be evaluating the determinations of
the trial court; we would be second-guessing it instead.
Remand is therefore necessary.
Relying on a provision in sec. 19.37(1)(a), Stats.,[fn3]
the Journal next argues that the trial court abused its
discretion in denying counsel access to the documents
for the limited purpose of advocating release.
Assuming that this clause applies to documents before
mandamus has issued, the trial court's decision not
to allow counsel for the Journal to participate in
the in camera document review process was not an
abuse of discretion.
While expressing "utmost confidence" in counsel,
the court was convinced that the more persons
with access to vital information, the more
possibility for inadvertent release.
That determination demonstrates a process of reasoning dependent
upon the facts of record and a conclusion based on logical
rationale founded upon proper legal standards.
McCleary v. State,
49 Wis.2d 263, 277,
182 N.W.2d 512, 519 (1971).
It is true, as the Journal argues, that counsel would be
reviewing the materials inside the judge's chambers,
such that inadvertent release of the actual records
would be an improbability, especially so in light
of the judge's expressed confidence in the attorney.
However, the court was concerned about
the unintentional happening.
For example, counsel might make notations for his
own records which could possibly be glanced
at by the unintended but roving eye.
Or, if counsel were to direct a secretary to
type a motion pertinent to the review, the
possibility of disclosure might increase.
Thus, we decide that the court's reason is valid.
Nonetheless, in light of our decision to remand, we note
that we know of nothing that prevents the trial court from
reevaluating its decision barring appellant's counsel from
participation in the in camera document review process.
We have no quarrel with the trial court's determining
that a possibility of inadvertent release militates against
allowing the Journal's attorney to review the documents.
However, there are cogent reasons for allowing the
advocacy process to take place in this situation.
As counsel for the Journal points out, complete denial of
access requires that the Journal litigate in the dark.
Review could well diminish the number of documents in dispute.
Further, review could bring into sharper relief
the competing interests implicated.
As a practical matter, review could provide this court
with a better record from which to evaluate the
soundness of the court's findings of fact.
In determining whether to allow the Journal's counsel access
to the documents on remand, the trial court might be well
served to weigh these, and other reasons for counsel to
review, against any reasons for denial, including
well-founded concerns regarding improper disclosure.
Finally, we find error in the trial court's
application of the balancing test.
The trial court found that there existed no public
interest in releasing these public records.
It then found that the slight possibility of harm to the
investigation posed by release outweighed a nonexistent
public interest in disclosure.
This is an incorrect application of public records law.
The public records law reflects a legislative determination that
the public interest favors inspection of public records.
Hathaway v. Joint School Dist. No. 1,
116 Wis.2d 388, 397,
342 N.W.2d 682, 687 (1984).
The law was intended to be a means by which citizens could
more effectively monitor the activities of government.
Comment Public Access to Law Enforcement Records in Wisconsin,
68 Marq. L. Rev. 705, 714 (1985).
There can thus never be occasion for finding "no public interest"
in disclosure of such documents; the interest
is legislatively presumed.
See Breier, 89 Wis.2d at 438, 279 N.W.2d at 189.
Therefore, the trial court, after finding facts as to any
public interests in secrecy implicated by the documents,
must balance the legislatively presumed interests in
openness and public scrutiny against the public policy
considerations that weigh against inspection and determine
whether the latter are sufficient to outweigh the former.
See Aagerup, 145 Wis.2d at 825-27, 429 N.W.2d at 775-76.
Wisconsin courts recognize that records pertinent to
ongoing criminal investigations may implicate an
overriding public interest in preserving secrecy.
Breier, 89 Wis.2d at 438, 279 N.W.2d at 189.
If the court finds that the Kassens murder investigation is
ongoing and that interests in secrecy are implicated here, it
must then determine which is weightier Ä the legislative
presumption of release or the interest in secrecy.
If the court concludes that the interests in crime detection
outweigh those in openness, the file may remain
unavailable to the public.
If, however, the court finds that disclosing only a portion of a
document or of the file as a whole is prejudicial, it must
order that portion alone cloaked from public view.
State ex rel. Youmans v. Owens,
28 Wis.2d 672, 683,
137 N.W.2d 470, 475 (1965).
By the Court. Ä
Orders reversed and cause remanded with directions.
[fn1] Section 19.85(1)(d), Stats., permitting
closed meetings regarding strategies
for crime detection, is applicable
to written records.
Journal/Sentinel, Inc. v. Aagerup,
145 Wis.2d 818, 822,
429 N.W.2d 772, 774 (Ct. App. 1988).
[fn2] Appellants argue that the statutory
citations relied on by Chief Call
were incorrect and irrelevant.
Our concern, however, is with
the reasons recited, and not
their statutory source.
The specificity requirement mandates the
recital of public policy reasons for refusing
release and mere citation to the exemption
statute is not sufficient.
145 Wis.2d at 823,
429 N.W.2d at 774.
[fn3] Section 19.37(1)(a), Stats., states, in
pertinent part, that
"[t]he 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."