GJS
HOME
MAIL
STATE EX REL. MORKE v. DONNELLY,

155 Wis.2d 521 (1990)

455 N.W.2d 893
               

522  526  530  534

523  527  531  535

524  528  532  536

525  529  533  537          DECISIONS AND OPINIONS




STATE of Wisconsin Ex Rel Thomas R. MORKE,                    Petitioner-Appellant-Petitioner, v. Jennifer DONNELLY, Respondent.
Supreme Court No. 88-1061. Argued March 27, 1990. Decided June 6, 1990. Reversing and remanding 151 Wis.2d 219, 444 N.W.2d 730 (Ct. App. 1989).)
TOP
PREVIOUS
NEXT PAGE 522
REVIEW of a decision of the court of appeals. Reversed and

remanded to the circuit court for further proceedings consistent

with this opinion.



For the petitioner-appellant-petitioner there was a brief by

Thomas R. Morke, Lexington, Virginia, and a brief by Bryan D.

Woods, Bruce K. Kaufmann and Jenswold, Studt, Hanson, Clark &

Kaufmann, Madison and oral argument by Mr. Woods.



For the respondent the cause was argued by Frank D. Remington,

assistant attorney general, with whom on the brief was Donald J.

Hanaway, attorney general.



CALLOW, WILLIAM G., J.



This is a review of a decision of the court of appeals,

State ex rel. Morke v. Donnelly, 151 Wis.2d 219, 444 N.W.2d 730

(Ct. App. 1989), which affirmed an order of the circuit court

for Dane County, Judge Angela B. Bartell.



The order of the circuit court granted Jennifer Donnelly's

(Donnelly's) motion to quash the alternative writ of mandamus

that the circuit court had previously issued.



The circuit court granted the motion to quash because it

concluded that Thomas R. Morke's (Morke's) petition for writ

of mandamus failed to state a cause of action under the

public records statute, Section 19.21, Stats., et seq.



The issue in this case is whether the facts in Morke's petition

for writ of mandamus state a cause of action under the public

records statute, Section 19.21, Stats., et seq.



We hold that Morke's petition for writ of mandamus

states a cause of action under the public records statute;

therefore, we reverse the decision of the court of appeals.
TOP
PREVIOUS
NEXT PAGE 523
We begin by setting forth the relevant facts.



While Morke was an inmate at Kettle Moraine Correctional

Institution, he read a newspaper article stating that two hacksaw

blades had been found in an inmate's cell at Waupun Correctional

Institution (Waupun) and that investigators were looking for a

gun that an informant said had been smuggled into Waupun.



The article also stated that the president of the guard union

at Waupun requested the acting warden at Waupun

to lock down Waupun for a complete search.



After reading the newspaper article, Morke wrote the records

custodian at Waupun, seeking to obtain copies of incident reports

regarding the hacksaw and gun investigation and copies of records

regarding the request for the lock down and search and the

response to the request.



Morke's written request cited Sections 19.35(4) and 19.36(6),

Stats.[fn1]



In a written response to Morke's request, the records custodian

at Waupun refused to give Morke copies of the requested records

because the records related to



     "an ongoing and sensitive investigation which deals with

      the safety and security of the institution . . . ."
TOP
PREVIOUS
NEXT PAGE 524
The Waupun records custodian informed Morke that he could

appeal the denial to Donnelly, records custodian for the

Wisconsin Department of Health and Social Services.



Morke then wrote to Donnelly, appealing the refusal of

the Waupun records custodian to provide him with

copies of the records that he had requested.



In a letter dated October 16, 1987, Donnelly affirmed the Waupun

records custodian's denial of Morke's request for copies of the

incident reports regarding the hacksaw and gun investigation.



Donnelly provided the following reasons for

denying this portion of Morke's request:



   The investigation [regarding the hacksaw and gun

   incident] is continuing, but even after the investigation

   concludes I would deny your request.



   It is my opinion that disclosure of the records would present

   an increased risk that you or other prisoners would defeat our

   security measures, thereby presenting the possibility of an

   escape attempt or violent incident within our institutions.



   Disclosure would be of clear overriding harm

   to the public interest.



In the same letter, Donnelly informed Morke that both the request

for the lock down and search of Waupun and the response to the

request were oral, thus no such records existed.
TOP
PREVIOUS
NEXT PAGE 525
After Donnelly refused Morke's request, Morke petitioned

for a writ of mandamus in the circuit court.



Morke's petition Ä which incorporated by reference his request to

the records custodian at Waupun, the Waupun records custodian's

denial, his appeal to Donnelly, and Donnelly's response Ä

contains the following allegations:



     that Donnelly is a records custodian for the

     Wisconsin Department of Health and Social Services

     and is therefore charged with custodial duties set

     forth in the public records law;



     that Morke requested that Donnelly provide him with

     nonconfidential information contained in public

     records he had learned about through a newspaper article;



     that the request was made pursuant to the public records

     law, Chapter 19 of the Wisconsin Statutes; that Donnelly

     denied a portion of his request and stated that no

     records existed with respect to the remainder; and



     that the records were withheld in violation

     of the public records law.



On November 12, 1987, an alternative writ of

mandamus was issued by the circuit court.



Stating that Donnelly had refused to perform her public duty to

allow Morke access to public records in her custody and that her

refusal denied Morke of his clear legal right to such records,

the alternative writ of mandamus commanded that Donnelly

either provide Morke with access to the requested public

records or show cause for withholding the records.



Subsequently, Donnelly moved to quash the

alternative writ of mandamus.



Donnelly argued that the motion to quash should be granted

because Morke's petition failed to state a claim

upon which relief could be granted.



The circuit court granted the motion to quash.



Morke appealed, and the court of appeals affirmed,

with one judge dissenting.



State ex rel. Morke v. Donnelly, 151 Wis.2d 219.



This court granted the petition for review.
TOP
PREVIOUS
NEXT PAGE 526
In determining whether it was proper to grant Donnelly's motion

to quash, the issue before this court is the same as the issue

that was before both the circuit court and the court of appeals.



A motion to quash a writ of mandamus "shall be deemed

a motion to dismiss the complaint under s. 802.06(2)."



Section 783.01, Stats.



The issue this motion presents is whether the facts alleged in

the petition for writ of mandamus state a cause of action under

the public records statute, Section 19.21, Stats., et seq.



State ex rel. Dalton v. Mundy,

 80 Wis.2d 190, 194-95,

257 N.W.2d 877 (1977).



The following principles guide the resolution of this issue:



   [The] petition should not be interpreted

   narrowly to defeat it.



   The general rule is that a pleading will be

   fairly and liberally construed to give

   effect to its object and purpose.



   This rule is especially applicable in this case

   where the action is to compel public officers

   to perform their prescribed statutory duties.



This court has previously noted that the



          "public policy, and hence the

           public interest, favors the

           right of inspection of

           documents and public records."



Beckon v. Emery,

 36 Wis.2d 510, 516,

153 N.W.2d 501 (1967).



Dalton, 80 Wis.2d at 196.



Because the outcome of the case at hand is controlled

by the Dalton case, we discuss Dalton in detail.



In Dalton, it was Joan Dalton's desire to inspect Milwaukee

County General Hospital records regarding that hospital's

policies and practices in handling abortion cases.



The request was directed to two county

officers of Milwaukee county.



One of the county officers referred the request to the Milwaukee

County Corporation Counsel because, according to the county

officer, the request involved individual patient records, the

disclosure of which would result in a breach of confidence.
TOP
PREVIOUS
NEXT PAGE 527
Although Dalton made it clear to corporation counsel that

she sought to discover statistical information about the

hospital's handling of abortion cases, not to discover

the identity of patients, the request was refused.



Id. at 192-94.



After the request was refused, Dalton petitioned in

the circuit court for an alternative writ of mandamus.



This court summarized Dalton's petition as alleging as follows:



   that Milwaukee County General Hospital is a public

   hospital operated by Milwaukee County through the

   Milwaukee County Board of Public Welfare and that

   [the persons to whom the request was directed] are

   county officers within the meaning of Section 19.21,

   Wis. Stats.; that [the county officers] have in their

   lawful possession or control or are lawfully entitled

   to the possession or control of records and documents

   relating to the operation of the hospital and in

   particular those requested by Dalton; that Dalton

   requested permission to examine or copy certain

   public records and documents . . .; and that

   her request was refused in violation of

   Section 19.21, Wis. Stats.



Id. at 194 (footnote omitted).



An alternative writ of mandamus was then

issued by the circuit court.





The county officers moved to quash the writ.



The circuit court denied the motion to quash and

granted the county officers leave to file a return.



Id.



In this court (and in the circuit court), the county officers

argued that the petition failed to state a cause of action

because Dalton's request was for individual patient

records which should not be considered public

records under Section 19.21, Stats.



This court rejected the county officers' argument, agreeing with

the circuit court that the petition was not properly interpreted

as requesting individual patient records.



Id. at 195.
TOP
PREVIOUS
NEXT PAGE 528
This court concluded that the petition



     "encompasses only records which the trial court

     properly described as statistical records,

     administrative records and records which

     are not personal to or identifiable

     with individual patients.



     The petition thus states a cause of action under

     Section 19.21, Stats., and the motion to

     quash was properly denied."



Id. at 197.



Finally, this court discussed the point in the proceedings where

it was appropriate for the court to consider the county officers'

reasons for withholding the records:



   Any assertions by [the county officers] that they cannot

   comply with the writ because, for example, they

   do not have the records requested by Dalton (the

   existence of which is admitted for purposes of the

   motion to quash), or because the information

   requested is available only in individual patient medical

   records which they claim are not within the public

   records statute or are privileged, were not properly

   before the trial court and are not properly before this

   court at this stage of the proceedings.



   These defenses, if they exist in this case, and any others,

   may be  raised in making a return to the alternative

   writ of mandamus, and the trial court will then

   determine the validity of the defenses.







Id. at 196 (footnotes omitted).



In light of this court's decision in Dalton, we now

determine whether Morke's petition for writ

of mandamus states a cause of action.



The summary of the allegations in Morke's petition (supra at 525)

is in substance identical to the summary of allegations in

Dalton's petition (supra at 527), and this court concluded

that Dalton's petition stated a cause of action.



In Dalton, the only reason the county officers provided in

support of their contention that the petition failed to state a

cause of action was that the records requested in the petition

were individual patient records; according to the county

officers, individual patient records could not be

considered public records under Section 19.21, Stats.
TOP
PREVIOUS
NEXT PAGE 529
As previously stated, this court interpreted Dalton's petition as

requesting public records, not individual patient records, and

therefore determined that the petition stated a cause of action.



In this case, there appears to be no dispute that the

records Morke requests in his petition are within

the scope of the public records statute.



Thus, Morke's petition states a cause of action under the

public records statute, and the motion to quash the

alternative writ of mandamus should have been denied.



Throughout the proceedings in this case, Donnelly has contended

that a portion of Morke's request cannot be complied with because

no records exist[fn2] and that disclosure of the remainder of the

requested records would be detrimental to the public interest.



     "[These defenses] were not properly before the trial court

     and are not properly before this court at this stage

     of the proceedings.



     These defenses, if they exist in this case, and any others,

     may be raised in making a return to the alternative

     writ of mandamus, and the trial court will then

     determine the validity of the defenses."



Dalton, 80 Wis.2d at 196.



Because Morke's petition states a cause of action,

this case must be remanded to the circuit court.



On remand, Donnelly may raise her defenses in filing a

return to the alternative writ of mandamus, and the circuit court

can then determine the validity of the defenses.
TOP
PREVIOUS
NEXT PAGE 530
As has been stated, in Donnelly's refusal, she contended

that disclosure of a portion of Morke's request would

be contrary to the public interest.



Under the decision of the court of appeals, if she raises this

defense in her return, the circuit court would not be required,

in reviewing the validity of this defense,

to examine the records in camera.



We conclude that, because the content of the requested records

is not known, the court of appeals erred in holding

that the in camera inspection was unnecessary.



In



State ex rel. Youmans v. Owens,

 28 Wis.2d 672,

137 N.W.2d 470 (1965),



we set forth the procedure that is to be followed in arriving at

the determination of whether the harm done to the public interest

by disclosing the public record outweighs the right of a member

of the public to have access to the public record:



   The duty of first determining that the harmful effect

   upon the public interest of permitting inspection outweighs

   the benefit to be gained by granting inspection

   rests upon the public officer having custody of

   the record or document sought to be inspected.



   If he determines that permitting inspection would result in

   harm to the public interest which outweighs any benefit

   that would result from granting inspection, it is

   incumbent upon him to refuse the demand for inspection

   and state specifically the reasons for this  refusal.



   If the person seeking inspection thereafter institutes

   court action to compel inspection and the officer depends

   upon the grounds stated in his refusal, the proper procedure

   is for the trial judge to examine in camera the record or

   document sought to be inspected.



   Upon making such in camera examination, the trial judge should

   then make his determination of whether or not the harm likely

   to result to the  public interest by permitting the inspection

   outweighs the benefit to be gained by granting inspection.
TOP
PREVIOUS
NEXT PAGE 531
   In reaching a determination so based upon a balancing

   of the interests involved, the trial judge must ever

   bear in mind that public policy favors the right of

   inspection of public records and documents, and,

   it is only in the exceptional case that

   inspection should be denied.



   In situations, such as in the instant case, where

   inspection is sought of a number of documents, the

   ultimate decision after conducting the balancing

   test might be to grant inspection as to certain

   of the documents and deny it as to others.



   If a single record or document is sought to be inspected,

   and disclosure of only a portion is found to be prejudicial

   to the public interest, the trial judge has the power to

   direct such portion to be taped over before granting

   inspection.



Youmans, 28 Wis.2d at 682-83 (footnote omitted).



Youmans shows that the in camera inspection assists the court in

determining whether the harm to the public interest by allowing

inspection outweighs the public interest in inspection.[fn3]



After reviewing the records in camera, the court may decide

that only certain records or portions of a particular

record should be released.



The case of



Newspapers, Inc. v. Breier,

 89 Wis.2d 417,

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



provides an example of a situation where an

in camera inspection would not be required.



In Newspapers, Inc., the managing editor of the Milwaukee Journal

sought regular access to certain police records.



The Chief of Police for the city of Milwaukee

granted the editor access to records showing



     "the name, age, and date of birth of all persons taken into

     custody, the time the suspect was taken into custody, and

     the names of the arresting officers . . . but he refused to

     permit . . . access to records showing the charge on which

     particular persons were arrested."



Newspapers, Inc., 89 Wis.2d at 421.
TOP
PREVIOUS
NEXT PAGE 532
The Chief of Police's reason for withholding the records

showing the charges upon which persons were arrested was

"possible personal and economic harm to individuals arrested."



Id.



This court concluded that the public interest in allowing

inspection of the records showing the charges for which persons

were arrested outweighed any interest of the public in protecting

the arrested persons' reputations by withholding the records.



Id. at 440.



To reach this conclusion, conducting an in camera inspection 

of the records of the charges was not necessary.



This court determined that the charges were to be made

available in all cases, regardless of the

particular individual or charge involved.



Id. at 439.



Thus, it was known by all parties involved, including the court,

without inspection, the content of the requested records,

and the only question was whether the records

of the charges should be disclosed.



In the case at hand, we know little about the content

of the requested records, assuming they exist.



We do know that some of the information printed in the newspaper

article Morke read might be contained in the requested records.



The records may contain some information the disclosure of which

would be harmless to any asserted public interest, or they may

be entirely unavailable to Morke for the reasons stated

in Donnelly's original denial of Morke's request.



The content of the requested records is known

only by Donnelly, the custodian.
TOP
PREVIOUS
NEXT PAGE 533
The law is clear, however, that the custodian does not

have the final word on the question of whether the

requested record or records will be disclosed.



Rather, the law provides that the requester may seek court

review of the custodian's decision refusing disclosure.



In order for the court to fulfill its role of deciding whether

Donnelly was correct in concluding that the public interest made

the requested records entirely unavailable to Morke, the court

must, like the custodian, know the content of the records.



The reviewing court can then determine whether, as a matter of

law, the entire request must be either granted or denied,

or whether certain documents or portions of

particular documents may be disclosed.





It is impossible to make this determination in this case without

an in camera inspection because the content of the requested

records is not known by the court.



We conclude that Morke's petition for writ of mandamus states

a cause of action under the public records statute,

Section 19.21, Stats., et seq.; therefore, it was

improper for the circuit court to grant

Donnelly's motion to quash.



On remand, Donnelly's defenses to the disclosure of the requested

records may be raised in making a return to the alternative writ

of mandamus, and the circuit court will then evaluate the

validity of the defenses.



If Donnelly maintains in her return that any portion of the

request must be withheld because disclosure would be contrary to

the public interest, the circuit court must examine the records

in camera to determine what, if any, may be disclosed.[fn4]
TOP
PREVIOUS
NEXT PAGE 534
By the Court. Ä The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court

for further proceedings consistent with this opinion.



[fn1]     Section 19.35(4), Stats., provides as follows:



          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 a request is made orally, the

                         authority may deny the request orally

                         unless a demand for a written statement

                         of the reasons denying the request is

                         made by the requester within five

                         business days of the oral denial.



                         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 a

                         19.37(1) or upon application to the

                         attorney general or a district attorney.



     Section 19.36(6), Stats., provides as follows:



          SEPARATION OF INFORMATION.



          If a record contains information that may be made

          public and information that may not be made public,

          the authority having custody of the record shall

          provide the information that may be made public

          and delete the information that may not be made

          public from the record before release.







[fn2]     "[T]he existence of [these records] is admitted for

          purposes of the motion to quash . . . ."



     Dalton, 80 Wis.2d at 196.



[fn3]     "Whether harm to the public interest from inspection

          outweighs the public interest in inspection

          is a question of law."



     Newspapers, Inc. v. Breier,

      89 Wis.2d 417, 427,

     279 N.W.2d 179 (1979).







[fn4]     The circuit court granted Donnelly's motion to quash,

          concluding that Donnelly's denial contained a

          sufficient explanation showing that the disclosure

          would be detrimental to the public interest.



          The circuit court was premature in determining

          what the public interest required.



          According to Dalton, the issue of whether the

          public interest requires disclosure is properly

          considered when a return has been filed.



CALLOW, WILLIAM G., J. (concurring).



The dissent concludes that the majority opinion will further

complicate the problems in maintaining a prison system.



Nothing could be further from the truth.



Nowhere does the majority opinion state that Morke

should be given access to the requested records.



In fact, the majority opinion cites with approval the principle

announced in Youmans that public records are properly withheld

when the harm done to the public interest in disclosing the

records outweighs the right of a member of the public to

have access to the records.



The majority opinion holds that Morke's petition is adequate and

that the issues of the public interest and the existence of the

requested records are relevant once those issues have been raised

in a return, not at the motion to quash stage.



The majority opinion also holds that an in camera

inspection is necessary in this case.



Thus, the majority opinion simply declares that the proper

procedures were not followed here, and I find no basis in

the law for abandoning the proper procedures due to the

status of the requestor.



In this case, following the proper procedural course does not

"waste" judicial resources because evaluating the records

custodian's defenses after a return has been filed is no more

time consuming than evaluating them at the motion to quash stage.



I find no support for the dissent's erroneous conclusion

in the only case the dissent cites, Oshkosh Northwestern



Co. v. Oshkosh Library Board,

125 Wis.2d 480,

373 N.W.2d 459 (Ct. App. 1985).
TOP
PREVIOUS
NEXT PAGE 535
LOUIS J. CECI, J.  (dissenting).



The prison staff discovered a gun and hacksaw

blades in the control of prison inmates.



Very properly, the prison officials refused to give

prisoner Morke the facts as to how that information

was acquired and/or developed.



Common sense would dictate that such information

not be given out to other prison inmates.



The circuit court and the court of appeals agreed, without

an in camera inspection of records, that the requested

information should not be provided.



Those decisions were predicated upon the state's response to

the writ of mandamus, in the form of a motion to quash which

was filed on behalf of the records custodian of the

department of health and social services.



It is obvious that the lower courts did not believe the prisoner

had a clear legal right to the information.



See



Oshkosh Northwestern Co. v. Oshkosh Library Board,

125 Wis.2d 480,

373 N.W.2d 459 (Ct. App. 1985).



I wholeheartedly agree with the determinations made

by the circuit court and the court of appeals.



The judiciary should not have to waste valuable resources on

this type of case and then require an additional hearing to

decide that a prisoner in a maximum-security prison

should not be given this information.



Where do we stop?  Would the majority require an in camera

inspection if an inmate demanded a copy of the prison blueprints?



I do not believe the legislature could have agreed that the open

records statute would be applied to these facts.



It seems to me that the almost overwhelming problems in

maintaining a prison system will be further complicated

by this decision, and I therefore dissent.
TOP
PREVIOUS
NEXT PAGE 536
I am authorized to state that Justice Donald W. Steinmetz

joins in this dissenting opinion.
TOP
PREVIOUS
NEXT PAGE 537


DECISIONS AND OPINIONS:

PENDING