NICHOLS v. BENNETT,
199 Wis.2d 268 (1996)
544 N.W.2d 428
270 271 272 273 274 275 276 277 278 279 280
SUSAN C. NICHOLS,
Petitioner-Appellant,
v.
MARK H. BENNETT, Columbia
County District Attorney,
Respondent-Respondent-Petitioner.
_________________________________________________________________
Supreme Court No. 93-2480
Oral argument November 30, 1995
Decided February 29, 1996
Affirming and remanding
190 Wis.2d 360,
526 N.W.2d 831 (Ct.App. 1994).
Review of a decision of the Court of Appeals.
Affirmed and remanded with directions.
For the respondent-respondent-petitioner there briefs and oral
argument by Mark H. Bennett, Columbia County District Attorney.
For the petitioner-appellant there was a brief by Norma Briggs
and Briggs Law Office, Madison and oral argument by Norma Briggs.
Amicus curiae brief was filed by Jeffrey J. Kassel and LaFollette
& Sinykin, Madison for the Wisconsin Newspaper Association.
JANINE P. GESKE, J.
This is a review of a published decision of the court of appeals
which reversed the circuit court's order denying an open records
petition for mandamus filed pursuant to Wis. Stat. Section
19.37(1)(a) (1991-92).[fn1]
The sole issue is whether open records requests made to a
district attorney and the district attorney's responses to
those requests are exempt from public inspection under
State ex rel. Richards v. Foust,
165 Wis.2d 429,
477 N.W.2d 608 (1991),
because they are contained in prosecutorial files.
We conclude that the requested records are subject
to inspection and copying under the open records law.
Although the district attorney placed these records into
prosecutorial files, it is the nature of the documents
and not their location which determines their status under
Sections 19.31 to 19.37, the Wisconsin open records law.
The court of appeals correctly held that these records do not
qualify for the common law exemption described in Foust.
We therefore affirm the court of appeals' decision.
FACTS
On August 28, 1992, Susan C. Nichols (Nichols), wrote to
Columbia County District Attorney, Mark H. Bennett (Bennett),
asking for copies of all the open records requests his office
had received from January 1, 1990, until that date.
She also requested copies of Bennett's responses to those
requests, but made it clear that she was not asking for
copies of the actual records he may have sent to requesters.
Bennett responded on September 1, 1992, stating that although
he did not have a "special file" containing the materials
requested, he and his staff would attempt to obtain
and promptly forward the information.
Nichols sent a second letter on September 28, 1992,
reiterating her initial request.
In response, Bennett informed Nichols that his office had
received four open records requests in the given time span.
He released a copy of one of these requests because it
was "not part of a prosecutorial file nor [did it]
contain investigative data."
Bennett declined to provide Nichols with copies of the
other three open records requests or his responses.
However, in his responsive letter, he did inform Nichols of the
nature of the requests and the substance of the action taken.
Two of the requests had been made by defense attorneys for
personnel records of police officers involved
in pending prosecution cases.
Bennett had forwarded these requests to the
specific law enforcement agency custodians.
In the remaining request, a prisoner asked
for his own closed prosecution file.
Bennett informed Nichols that he had responded to this
request by sending a copy of the file to the prisoner.[fn2]
Bennett wrote that: "It is my position that
you are not entitled to
letters or any documents
contained in the above
three closed
prosecutorial files or
any other closed
prosecution files in my
office."
He stated that Foust "holds that
prosecutorial
files are
exempt from
public access."
Nichols then filed a petition for a writ of mandamus pursuant to
Wis. Stat. Section 19.37(1)(a), seeking to compel Bennett to
release the remaining requested documents.
On March 31, 1993, the circuit court issued a memorandum
decision denying Nichols' petition.[fn3]
The court concluded that the records sought were not simply
stored in, but were "part of closed prosecution files and as
such, are exempted from disclosure under Foust."
Nichols appealed.
The court of appeals reversed and remanded with directions that
the writ of mandamus be granted on the basis that the Foust
exemption applies only to "items that actually pertain to
prosecution."
Nichols v. Bennett,
190 Wis.2d 360, 364,
526 N.W.2d 831 (Ct.App. 1994).
The court of appeals determined that the
principles underlying Foust limit its
application to
"information gathered in the
course of an investigation."
Id.
This court subsequently granted Bennett's petition for review on
the issue of the scope of the exception articulated in Foust.
This court is asked to determine whether open records requests
are themselves exempt from access under the open records
law when they are contained in a prosecutorial file.
Resolution of this issue involves the application
of the open records law to undisputed facts.
This presents a question of law which we approach without
deference to the conclusions of the courts below.
Mayfair Chrysler-Plymouth, Inc. v. Baldarotta,
162 Wis.2d 142, 155,
469 N.W.2d 638 (1991).
The open records law serves one of the basic tenets of our
democratic system by providing an opportunity for public
oversight of the workings of government.
Newspapers, Inc. v. Breier,
89 Wis.2d 417, 433-34,
279 N.W.2d 179 (1979).
This state recognizes a presumption of accessibility to public
records, reflected in both the statutes and in our case law:
[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.
Wis. Stat. Section 19.31.
This court has summarized its approach to the open records
law in the following manner:
[T]he 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 v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984).
Further, we narrowly construe any exceptions
to the general rule of disclosure.
Fox v. Bock,
149 Wis.2d 403, 411,
438 N.W.2d 589 (1989).
In Foust, we concluded that "the common law provides an
exception which protects the district attorney's files
from being open to public inspection."
Foust, 165 Wis.2d at 433-34.
We identified several grounds for protecting prosecutorial files
from inspection including the need to shield anonymous statements
and informants' identities in an on-going effort to encourage
public cooperation in criminal investigations.
Id. at 435.
In Foust, we concluded that "access to data collected and placed
into prosecutor files is not open to indiscriminate public view."
Id. at 436.
Bennett argues that Foust creates a bright-line rule
which exempts all documents contained in
prosecutorial files from public access.
He maintains that the court of appeals' decision "clouds
the clarity and certainty" of that bright-line rule.
Bennett asserts that Foust drew no distinction between types of
records contained in prosecutorial files nor did it set forth
any exceptions to the rule, and we should reject the court
of appeals' attempts to do so.
We conclude that neither the purposes underlying the open records
law nor the policy reasons supporting the Foust exemption are
served by nondisclosure of the letters at issue here.
The court of appeals held that a record should not be
"automatically exempt merely because a
custodian stores it in a closed
prosecutorial file."
Nichols, 190 Wis.2d at 364. We agree.
A prosecutor cannot shield documents subject to the open records
law simply by placing them into a "prosecutorial file."
It is the nature of the documents and not their
location which determines their status
under Sections 19.31 to 19.37.
To conclude otherwise would elevate form over substance.[fn4]
District Attorney Bennett, an elected public official,
is the legal custodian of public records in his office.
Wis. Stat. Section 19.33.
The declared public policy of this state is that the public is
entitled to the greatest possible information concerning the
official acts of its elected officials and government.
Wis. Stat. Section 19.31.
It is "an integral part of [Bennett's] routine duties" to
facilitate access to public records in his office and thereby
provide the public with information about his own official acts
as well as those of other government officials and employees.
Wis. Stat. Section 19.31.
Here, Nichols, a member of the public, is entitled to see
how Bennett handles the open records demands he receives.
As custodian of these records, Bennett must make available the
requested open records demands and his responses to them.
These records are not exempt from the open records
law and cannot be shielded from disclosure.
Finally, Bennett raised the argument on appeal that
compliance with Nichols' request would not be in the
public's best interest because it would place an
unreasonable burden upon his staff and resources.
Bennett did not raise this argument at the trial court
level and, more importantly, did not state it as one
of the specified reasons for denying Nichols' request.
As we noted in Breier, the custodian must "state
specific public-policy reasons for the refusal."
Breier, 89 Wis.2d at 427.
It is not "this court's role to hypothesize reasons or to
consider reasons for not allowing inspection which were
not asserted by the custodian" and the stated reasons
provide the necessary basis for review. Id.
We therefore decline to address this
argument in this review.[fn5]
For the reasons stated above, we affirm
the decision of the court of appeals.
By the Court. The decision of the court of appeals
is affirmed and cause is remanded with directions.
[fn1] Unless otherwise indicated, all subsequent references
are to the 1991-92 Wisconsin Statutes.
[fn2] The prisoner's request and Bennett's response had
occurred before the release of the Foust opinion.
[fn3] The records at issue were not inspected by the circuit
court in camera and are not a part of the appellate
record before us.
[fn4] This opinion should not be read as questioning or
weakening the exception we recognized in Foust.
We reaffirm that documents integral to the criminal
investigation and prosecution process are protected
"from being open to public inspection."
Foust, 165 Wis.2d at 434.
[fn5] Further, as pointed out in the amicus brief filed by
the Wisconsin Newspaper Association, the statutes
provide that an authority may impose a fee on the
requester if the "actual, necessary and direct cost" of
locating a record exceeds $50.
See Wis. Stat. Section 19.35(3)(c).
Thus, cost of retrieval alone does not constitute an
adequate reason for denial of an open records request.
SHIRLEY S. ABRAHAMSON, J. (concurring).
The opinion correctly concludes that the records at issue in this
case were not exempt from disclosure under Wisconsin's open
records law, and I therefore join the mandate.
I write separately because the very reasons the opinion relies
upon to reach its result warrant overturning the court's prior
decision in
State ex rel. Richards v. Foust,
165 Wis.2d 429,
477 N.W.2d 608 (1991).
In concluding that a prosecutor cannot shield otherwise
disclosable documents merely by placing them in a
prosecutorial file, the opinion correctly
observes that
"[i]t is the nature of
the documents and not
their location"
which determines whether they should be disclosed.
"To conclude otherwise,"
the opinion continues,
"would elevate form over substance."
Majority op. at 275.
Conversely, in concluding that prosecutorial files should
automatically and categorically be exempt from Wisconsin's
open records law, regardless of whether the files pertain
to open or closed investigations, the Foust court did
precisely what we rightly condemn today: it elevated
form over substance, thereby thwarting the presumption
inscribed in Wisconsin's open records law in favor
"of complete public access" "in every instance."
Wis. Stat. Section 19.31 (1991-92).[fn1]
That presumption requires a careful balancing between
the public interest in disclosure of the contested information
and the potential harmful effect of such disclosure.[fn2]
In conducting that balancing test,
"[t]he denial of public access generally is
contrary to the public interest, and only in an
exceptional case may access be denied."
Wis. Stat. Section 19.31.
In holding that a prosecutor's closed case files were
exempt from public inspection, the Foust court failed
to heed this statutory prescription.[fn3]
In its effort to both salvage Foust and adhere to the open
records statute, the court's opinion today circumvents the
Foust court's blanket exemption for records placed in
prosecutorial files by insisting that neither the
purposes served by the open records law nor the
policies enunciated in Foust itself warrant exempting the
documents at issue in this case from open records requests.
While the majority insists that the exception it creates
to Foust "should not be read as questioning or weakening"
Foust, majority op. at 6 n.4, it is difficult to
comprehend how else one might read the opinion.
The opinion limits Foust to "documents integral to
the criminal investigation and prosecution process."
Majority op. at 6 n.4.
This standard is nebulous and it sets the stage for
future litigation as surely as Foust rendered
inevitable the case before us today.
The exception to Foust which the majority opinion
carves out is only the first; it will not be the last.[fn4]
Without any authority or support in either the statutes
or the common law, Foust unilaterally prohibits the full
application of Wisconsin's open records law.
Because of the irreconcilable tension between the Foust
court's holding and the statute it purports to interpret
and apply, the majority opinion can only grapple with
Foust's troubled legacy by denying what that legacy means.
Such contortions do not make good law.
Hence rather than destroying Foust covertly in an effort
to save it, we should avail ourselves today of
the opportunity to overtly overturn it.
For the reasons set forth, I concur.
[fn1] All future references are to the 1991-92
volume of the Wisconsin Statutes.
[fn2] Wis. Stat. Section 19.31;
Fox v. Bock,
149 Wis.2d 403, 411,
438 N.W.2d 589 (1989);
Hathaway v. Green Bay Sch. Dist.,
116 Wis.2d 388, 396-97,
342 N.W.2d 682 (1984);
Newspapers, Inc. v. Breier,
89 Wis.2d 417, 426-27,
279 N.W.2d 179 (1979);
State ex rel. Youmans v. Owens,
28 Wis.2d 672, 682-83,
137 N.W.2d 470, 139 N.W.2d 241 (1965).
[fn3] The open records law insures that when closed
prosecutorial files contain materials which, were they
disclosed, would harmfully affect the public interest,
the district attorney need not release them.
See
State ex rel. Richards v. Foust,
165 Wis.2d 429, 439,
477 N.W.2d 608 (1991) (Abrahamson, J., dissenting).
[fn4] The Foust court stated that under the court's
interpretation of the common-law exception to
disclosure, a prosecutor need not even respond to an
open records law request for access to information in a
prosecutorial file.
This further illustrates the tension between Foust and
the open records act.
Foust, 165 Wis.2d at 437.
Because the prosecutor in this case did respond to the
request for information, this issue was not before us.
Should he have declined to do so, the court could have
been compelled to carve out yet another exception to
Foust, since replying to such a request presumably does
not jeopardize and is not "integral to the criminal
investigation and prosecution process."