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,
OWENS, Mayor, Appellant.[fn*]
October 8, 1965 Ä November 2, 1965.
[fn*] Motion for rehearing denied, without costs,
on January 19, 1966.
APPEAL from a judgment of the circuit court for
Waukesha county: CLAIR VOSS, Circuit Judge.
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.
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.
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. "
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.,
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
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
(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]
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.
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
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.
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
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.
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
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]
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
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.
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
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
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
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.
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
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
880(5), Stats. 1915.