MILWAUKEE JOURNAL v. CALL,

153 Wis.2d 313 (Ct.App. 1989)

450 N.W.2d 515


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MILWAUKEE JOURNAL, Plaintiff-Appellant,



v.



Patrick L. CALL, City of Mequon Chief of Police,



and



Fernando Perez, Ozaukee County Sheriff,



Defendants-Respondents.



_________________________________________________________________



Court of Appeals No. 88-2201.



Argued September 28, 1989. 



Decided November 22, 1989.
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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,

of Madison.



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.
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BROWN, P.J.



In this public records case, we revisit the question raised



in



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

was held.



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.
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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.



Aagerup,

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.



Id.



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.
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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

requirement.



Aagerup,

145 Wis. 2d at 826,

429 N.W.2d at 775;[fn2]



see also



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.



Aagerup,

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.
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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.



See



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.



See



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.
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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.
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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.
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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  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.  



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.



          Aagerup,

          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."


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