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).
PAGE 270
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.


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.
PAGE 271

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]
PAGE 272
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


He stated that Foust     "holds that


                         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


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."


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.
PAGE 273
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.
PAGE 274
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.
PAGE 275
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.
PAGE 276
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.
PAGE 277
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]
PAGE 278
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.
PAGE 279
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.


          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."
PAGE 280