STATE EX REL. YOUMANS v. OWENS,

28 Wis.2d 672 (1965)

137 N.W.2d 470

39 N.W.2d 241              CONTENTS MENU






STATE EX REL. YOUMANS, Respondent, v. OWENS, Mayor, Appellant.[fn*]
Supreme Court October 8, 1965 Ä November 2, 1965.

675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
[fn*]  Motion for rehearing denied, without costs,

       on January 19, 1966.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
APPEAL from a judgment of the circuit court for

Waukesha county:  CLAIR VOSS, Circuit Judge.



Reversed.



Mandamus to compel defendant Harold Owens, mayor of the

city of Waukesha, to permit petitioner Henry A. Youmans

to examine certain papers in the custody of the mayor.



In late August or early September of 1963, John

Buckley, city attorney for Waukesha, initiated an

investigation of alleged misconduct on the part of

members of the Waukesha police department.



The information that prompted the investigation

came to Buckley while investigating a

matter pending in county court.



Buckley and his assistant took sworn statements

from 17 persons while conducting the investigation.



In addition, Buckley gathered a number of the

police department's interdepartmental

documents concerning this matter.



On October 1, 1963, Buckley wrote a letter to

Mayor Owens and the city council informing

them of the investigation.



The investigation was completed later

in the month of October.



Buckley then turned over to Mayor Owens a copy

of the material mentioned above which he

had collected in the investigation.



Mayor Owens (hereinafter referred to as "defendant")

received this report in his capacity as

head of the police department.



On December 27, 1963, petitioner Youmans, publisher of

the Waukesha Freeman, appeared with other staff members

at the mayor's office and requested to see the report.



Petitioner testified that defendant said he possessed

the report, but would not allow him to see it

because the people involved did not want

the information disclosed.



Upon this refusal by the mayor, on December 31, 1963,

petitioner filed a petition for leave to commence

an original action for writ of mandamus to compel

defendant to produce the report pursuant to

Section 18.01(1) and (2), Stats.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
An alternative writ of mandamus was issued by the court

on December 31, 1963, and a return to said writ was

filed with the court on February 10, 1964.



Trial was had to the court and judgment was entered

January 29, 1965, directing that a peremptory writ

of mandamus issue commanding defendant to make the

report in question available for inspection to

petitioner and other members of the public.



Defendant has appealed.



For the appellant there was a brief by Hippenmeyer &

Reilly of Waukesha, and oral argument by

Richard S. Hippenmeyer.



For the respondent there was a brief by Lowry, Hunter &

Tikalsky, and oral argument by Thomas E. Anderson and

Richard N. Hunter, all of Waukesha.



A brief amicus curiae was filed by Foley, Sammond &

Lardner, James P. Brody, and John R. Collins, all

of Milwaukee, for the Journal Company.



CURRIE, C.J.



These three issues are raised by this appeal:



(1)  Is petitioner the real party in interest?



(2)  Does Section 18.01, Stats., apply to the

     report sought to be obtained by petitioner?



(3)  If Section 18.01 does apply, is the right of

     inspection subject to any limitations?



Real Party in Interest.



Section 260.13, Stats., provides,



    " Every action must be prosecuted

      in the name of the real party

      in interest except as otherwise

      provided in section 260.15. "
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
Defendant asserts that the real party in interest

in this case is the Waukesha Freeman and that

the suit should not be allowed to proceed

in the name of the petitioner.



In this regard defendant relies heavily on a number

of Freeman headlines and news stories which indicated

that the newspaper was bringing the lawsuit.



A newspaper headline is of no value in the legal

determination of who is the real party in interest.



One of the leading cases which has established the

guiding principles for determining whether a party is

the real party in interest is Marshfield Clinic v.

Doege.[fn1]  The court therein quoted with approval

from 15 Encyc. Pl. & Pr., p. 710, the following:



     "The real party in interest, within the

     meaning of this provision of the code, is the

     person who will be entitled to the benefits

     of the action if successful; one who is

     actually and substantially interested in the

     subject matter, as distinguished from one who

     has only a nominal, formal, or technical

     interest in or connection with it."   [fn2]



Plaintiff surely fits within this definition

because if successful he will be the one

entitled to make the inspection.



That his motivation in seeking inspection is to

benefit his newspaper and permit it to publish

the material gained therefrom is immaterial.



The fact that he as a citizen deems it essential

that the material contained in the report be made

available to the public is sufficient to qualify

him as the real party in interest.



Applicability of Section 18.01.



Subsections (1) and (2) of Section 18.01, Stats.,

provide:



18.01(1)  Each and every officer of the

          state, or of any county, town,

          city, village, school district, or

          other municipality or district, is

          the legal custodian of and shall

          safely keep and preserve all

          property and things received from

          his predecessor or other persons

          and required by law to be filed,

          deposited, or kept in his office,

          or which are in the lawful

          possession or control of himself or

          his deputies, or to the possession

          or control of which he or they may

          be lawfully entitled, as such

          officers.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
18.01(2)  Except as expressly provided

          otherwise, any person may with

          proper care, during office hours

          and subject to such orders or

          regulations as the custodian

          thereof may prescribe, examine or

          copy any of the property or things

          mentioned in subsection 18.01(1)



While technically it may be inaccurate to refer

to the papers filed by City Attorney Buckley

with defendant mayor as a "report" we do

so in the interest of brevity.



Defendant contends that the afore-quoted statutory

provisions do not extend to this report because it was

not "required by law" to be filed with the mayor.



However, the statutory words of subsection 18.01(1)



          " or which are in the lawful possession

            or control of himself "



extend the applicability of the statute to some papers

and documents not required by law to be filed,

deposited, or kept in the mayor's office.



The leading case dealing with inspection of public

records and documents pursuant to Section 18.01,

Stats., is International Union v. Gooding.[fn3]



In that case plaintiff union requested an alternative

writ of mandamus to compel defendant and others,

representing the Wisconsin employment relations board,

to make available a petition on file with the board.



There was no statutory provision authorizing the filing

of this petition because it sought to invoke a

jurisdiction which the board did not possess.



Plaintiff asserted it was entitled to look at the

petition under Section 18.01(1) and (2).



In considering what papers and records

the statute applied to, the court said:





     Section 18.01(1), Stats., in supplanting all the

     existing legislation heretofore mentioned, deals

     with three specific types of papers that must be

     kept by an officer and delivered to a successor in

     office:



     (1)  Such books, papers, records, etc.,

          as are required by law to be filed,

          deposited, or kept in his office;



     (2)  books, papers, etc., in his

          possession as such officer;



     (3)  books, papers, etc., to the

          possession of which he is entitled

          as such officer.[fn4]
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
In determining that the trial court had correctly

denied the motion to quash the writ, the court

emphasized its position by stating:



     "It is clear enough that it was supposed by

     the legislature that numerous papers other

     than those required by specific statute or

     rule to be kept should remain in the files as

     a part of the records of an office . . . . 

     It is the rule independently of statute that

     public records include not only papers

     specifically required to be kept by a public

     officer but all written memorials made by a

     public officer within his authority where

     such writings constitute a convenient,

     appropriate, or customary method of

     discharging the duties of the office."[fn5]





This overruled sub silento the dictum appearing in the

final paragraph of the opinion in State ex rel. Spencer

v. Freedy[fn6] in which the conclusion was expressed

that Section 18.01, Stats., only allowed inspection of



     "anything required by law to be filed,

     deposited, or kept in a public office."



Defendant mayor as "head of the . . . police

departments"[fn7] is entitled to a report of

any investigation of the police department

made by the city attorney.



We deem it wholly immaterial, on the issue of

whether defendant was in legal custody of the

papers sought to be inspected, that here the

city attorney did not submit a formal report

stating the conclusions he had reached as a

result of his investigation, but instead

merely filed with the mayor the

statements of persons interviewed

and interdepartmental memoranda.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
We conclude that Section 18.01(1) and (2), Stats.,

is applicable to the documents with respect to

which petitioner seeks to compel inspection.



Limitations on Right to Inspect.



However, merely because the papers sought to be

inspected, although not required by law to be filed or

kept by defendant, were in his lawful possession, did

not automatically entitle petitioner to inspect them.



The inspection provisions of Section 18.01(1) and (2),

Stats., were contained in a revisor's bill[fn8] and

prior to that enactment there existed no statute

which attempted to spell out the rights of members

of the public to inspect public records.



The revisor's notes to Subsection 18.01(2) of

Section 18.01 stated that this subsection



     "is believed to give expression to

      the general implied right of the

      public to consult public records."



The court in the Gooding Case quoted this

statement and then declared:



     "In view of the presumption that a

      revisor's bill is not intended to

      change the law we conclude that

      this is the scope of the section.



      While it is possible to contend that

      the words are so clear as not to be

      subject to construction we are of the

      view that the common-law right of the

      public to examine records and papers

      in the hands of an officer has not

      been extended.



      We shall not go into the scope of the

      common-law right exhaustively or attempt

      to document our observations upon it.



      It is enough to say that there are numerous

      limitations under the common law upon the

      right of the public to examine papers that

      are in the hands of an officer as such officer.



      Documentary evidence in the hands of a

      district attorney, minutes of a grand jury,

      evidence in a divorce action ordered sealed

      by the court are typical.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
      The list could be expanded but the foregoing

      is enough to illustrate that in certain

      situations a paper may in the public

      interest be withheld public inspection.



      Whatever limitations existed at common law

      still exist under Section 18.01(2), Stats."[fn9]



An authoritative statement of the common-law right of

inspection of public documents is that made by the

Vermont court in Clement v. Graham[fn10] as follows:



     "We think it may be safely said that at

     common law, when not detrimental to the

     public interest, the right to inspect public

     records and public documents exists with all

     persons who have a sufficient interest in the

     subject-matter thereof to answer the

     requirements of the law governing that

     question."[fn11]



Thus the right to inspect public documents

and records at common law is not absolute.



There may be situations where the harm done to the

public interest may outweigh the right a member

of the public to have access to particular

public records or documents.





Thus, the one must be balanced against the other in

determining whether to permit inspection.[fn12]



An illustration of a type of situation in which the

harm to the public interest, it inspection were

permitted, was held to outweigh the individual's

right to inspect is provided by



City & County of San Francisco v. Superior Court.[fn13]



There the records sought to be inspected contained

information which had been gathered from employers

under the pledge that it would be kept confidential.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
To have permitted inspection would not only have

constituted a breach of this pledge, but would

have seriously handicapped governmental agencies

in gathering information in the future under a

similar pledge because of distrust that

the pledge would not be observed.



We deem it unwise to attempt to catalog the situations

in which harm to the public interest would justify

refusal to permit inspection.



It is a subject which had best be left to

case-by-case decision.



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.[fn14]
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
In reaching a determination so based upon a

balancing 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 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.



Here the testimony does not disclose that defendant

stated any reason for refusing to permit inspection

at the time inspection was requested of him.



Paragraphs 5 and 6 of defendant's return states these

reasons for denying inspection:



5.   That, on information and belief, the said

     miscellaneous papers prepared by others than

     the said John P. Buckley and the statements

     given by various persons related, among other

     things, to pending and potential civil claims

     against the City of Waukesha and to possible

     ordinance violations and were documentary

     evidence under the control of the said John

     P. Buckley, City Attorney, and were part of

     and consisted of his 'work product' as

     attorney for said City of Waukesha.







6.   That, on information and belief, the

     examination of said miscellaneous papers and

     statements, and the probable publication of

     parts thereof by the petitioner would not be

     in the public interest at this time, but on

     the contrary would be harmful to the public

     interest.





Defendant cites no case authority in which

a report such as the instant one was held

to be the "work product" of an attorney

and free from investigation.



This doctrine has evolved to protect the work product

of an attorney in respect to a specific case from being

subject to discovery by the opposite party.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
Since the investigative report in the instant case was

not gathered for any particular litigation, and

obviously not for the instant litigation, it is

clearly not protected by the "work product" theory.



As the court said in Park & Tilford Distillers Corp.

v. United States:[fn15]



     "We then must assume defendant's position to

     be that the papers here sought were trial

     preparation materials assembled by the OPA

     for use in any contest that might develop in

     litigation wherein the OPA might be a party.



     It cannot be said that these papers were

     gathered by the United States Attorney as

     part of his preparation for the instant case

     and therefore within the `work product

     privilege'. . . ."[fn16]



While the instant report does not qualify as an

attorney's work product so as to entitle it to

be kept from compulsory disclosure, City Attorney

Buckley gave testimony tending to establish the

possibility that harm would occur to the city

if this report were made public.



He testified that one claim had already been filed

in which damages were sought against the city by reason

of acts by the police department, and that an attorney

had been employed to prosecute the claim.



He further stated that as a result of the documents

constituting the report he had knowledge of other

potential claims which might be made against the city.



In addition to the argument that the interest of the

city might be harmed by disclosure because of pending

and potential claims based on police conduct referred

to in the report, defendant contends that the

reputations of the policemen involved might be damaged

by granting inspection contrary to the legislative

policy embodied in Section 14.90(3)(e), Stats. Section

14.90 has been referred to as the "Public's Right to

Know" statute and requires open meetings of state and

local governing and administrative bodies, boards,

commissions, committees, and agencies, except where

executive or closed sessions are held for certain

enumerated purposes.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
Subsection 14.90(3)(e) of this statute provides:



14.90(3)    Nothing herein contained shall

            prevent executive or closed

            sessions for purposes of:



            . . . . . . . . . . . . .



14.90(3)(e) Financial, medical, social or personal

            histories and disciplinary data which

            may unduly damage reputations;



We determine that this legislative policy of not

disclosing data which may unduly damage reputations

carries over to the field of inspection of public

records and documents.



The statutory word "unduly" is significant.



As applied to inspection it does not bar all inspection

of public records and documents that might damage

reputations, but requires a balancing of the interest

of the public to be informed on public matters against

the harm to reputations which would likely result from

permitting inspection.



In the instant situation the public interest to be

served by permitting inspection is to inform the public

whether defendant mayor has been derelict in his duty

in not instigating disciplinary proceedings against

policemen because of wrongful conduct disclosed

in the report.



If the report contains statements of persons having

first-hand knowledge, which disclose police misconduct,

the fact that reputations may be damaged would not

outweigh the benefit to the public interest in

obtaining inspection.



On the other hand statements based upon hearsay or

suspicion, or inconclusive in nature, would be of

small public benefit if made public, and might

do great harm to reputations.



No claim has been made that the investigation of the

Waukesha police department is still continuing, or

that inspection of the report would interfere

with any contemplated disciplinary action.
TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS
No prior Wisconsin case has laid down the requirement

that the public officer who refuses a request to permit

inspection of public records because he believes it to

be harmful to the public interest, or because it would

unduly damage reputations, must justify such refusal by

specially stating his reasons therefor.



Accordingly, although defendant failed to state a valid

reason for his determination to refuse inspection to

petitioner, we conclude that justice requires that the

cause be remanded to the circuit court so that court

can make a proper determination as to whether

inspection should be granted under the

guidelines herein laid down.



By the Court. Ä Judgment reversed, and cause remanded

for further proceedings consistent with this opinion.



[fn1]   (1955), 269 Wis. 519, 69 N.W.2d 558.



[fn2]   Id. page 523.



[fn3]   (1947), 251 Wis. 362, 29 N.W.2d 730,



[fn4]   Id. page 369.



[fn5]   Id. pages 370, 371.



[fn6]   (1929), 198 Wis. 388, 233 N.W. 861.



[fn7]   Section 62.09(8)(d), Stats.



[fn8]   Chapter 178, Laws of 1917.



[fn9]   Supra, footnote 3, pages 372, 373.



[fn10]  (1906), 78 Vt. 290, 63 Atl. 146.



[fn11]  Id. pages 315, 316.



        Other authorities in accord are



        Fayette v. Martin (1939),

        279 Ky. 387, 130 S.W.2d 838;



        Egan v. Board of Water Supply (1912),

        205 N.Y. 147, 98 N.E. 467;



        Zuppa v. Maltbie (1947),

        190 Misc. 778, 76 N.Y. Supp.2d 577;



        Chytracek v. United States (D.C. Minn. 1932),

        60 F.2d 325; 76 C.J.S.,

        Records, p. 133, Section 35.



[fn12]  MacEwan v. Holm (1961),

        226 Or. 27, 359 P.2d 413, (2a) 1086.



[fn13]  (1951), 38 Cal. 2d 156, 238 P.2d 581.



[fn14]  This procedure is similar in nature

        to the procedure this court outlined in



        State v. Richards (1963),

         21 Wis.2d 622, 633,

        124 N.W.2d 684,



        for determining whether counsel for a

        defendant in a criminal prosecution

        shall be entitled to see and make

        use impeachment purposes, a

        statement given before trial

        by a witness for the state.



[fn15]  (D.C.N.Y. 1957), 20 FRD 404.



[fn16]  Id. page 406.



        In accord is



        Tobacco & Allied Stocks v.

        Transamerican Corp. (D.C. Del. 1954),

        16 FRD 534, 537.



        See also Hanover Shoe, Inc., v.

        United Shoe Machinery Corp. (D.C. Pa. 1962),

        207 Fed. Supp. 407.

_______________________________________________________



The following memorandum was filed January 19, 1966.



PER CURIAM (on motion for rehearing).



Relator's brief, in support of his motion for

rehearing, points out that prior to enactment

of Section 18.01, Stats., in 1917 as part of

a revisor's bill there existed certain statutes

which authorized inspection of certain public

records.[fn1]



There are many statutes that impose upon particular

public officers the duty to keep certain records which

evidence an express or implied legislative intent that

such records be open to public inspection.



With respect to public records of this category the

common-law rule applied in the instant case would

be inapplicable, and consequently the officer

custodian thereof would have no right to

refuse public inspection.



Except for this qualification of the original opinion,

which does not affect the determination of the instant

case, we are not persuaded that any further change

should be made therein.



The motion for rehearing is, therefore,

denied without costs.



[fn1]  Those cited are



       Sections 138,

                141(5),

                142,

                186,

                768(3),

                832(9),

                880(5), Stats. 1915.






TOP
675
676
677
678
679
680
681
682
683
684
685
685A
686
MAIL
GJS