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).)
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.
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 . . . ."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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]
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).
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.
I am authorized to state that Justice Donald W. Steinmetz
joins in this dissenting opinion.
DECISIONS AND OPINIONS:
PENDING