STATE EX REL. RICHARDS v. FOUST,

165 Wis.2d 429 (1991)

477 N.W.2d 608      



                    429 431 433 435 437 439 440a 440c 441



                    430 432 434 436 438 440 440b 440d


STATE of Wisconsin ex rel. Harlan RICHARDS,                        Petitioner-Respondent,[fn] v. C. William FOUST, Respondent-Appellant-Petitioner.


Supreme Court No. 89-2083 Submitted on briefs October 4, 1991.             Decided December 10, 1991. [fn] Motion for reconsideration denied March 3, 1992. (Reversing 158 Wis.2d 531,            463 N.W.2d 378 (Ct. App. 1990).)
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REVIEW of a decision of the Court of Appeals. Reversed.



For the respondent-appellant-petitioner the cause was

submitted on the briefs of Robert W. Larsen,

assistant attorney general and

James E. Doyle, attorney general.



For the petitioner-respondent there was a brief by

Harlan Richards, Waupun.



Amicus curiae brief was filed by Jeff Scott Olson and Julian,

Olson & Lasker, S.C., Madison for State Bar of Wisconsin

 

Individual Rights Section.



STEINMETZ, J.



This case presents two questions.



The first question concerns whether the attorney general's office

has jurisdiction to represent the district attorney,



and



the second deals with whether closed prosecutorial files

are exempt from public access under open records law.



We hold that the attorney general's office has

the authority to represent the district attorney.



We also hold that prosecutorial files

are exempt from public access.



We thereby reverse the holding of the court of appeals.[fn1]
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On March 24, 1989, Harlan Richards submitted to

Dane County District Attorney C. William Foust,

a written request pursuant to Wisconsin's

open access to records law to inspect the

closed prosecutor's case file of a

criminal action against him.[fn2]



Foust failed to respond to the written request.



Richards then filed a petition for an alternative writ of

mandamus in Dane county circuit court on May 2, 1989.



The Honorable Gerald C. Nichol issued an alternative

writ of mandamus directing Foust to furnish Richards

with access to the prosecutor's case file or show

cause why access to the file should be denied.



Foust moved to quash the alternative

writ of mandamus on June 28, 1989.



In addition, he submitted a memorandum asserting

that a prosecutor's case file is exempt from

inspection under the open records law.



On July 6, 1989, Richards requested substitution of Judge Nichol.



The request was granted and the Honorable Moria Krueger

was assigned to the case.



Judge Krueger issued a memorandum decision and order

on August 31, 1989, which denied Foust's motion to

quash and ordered Foust to grant Richards access

to the requested public records.



Foust refused to obey the court's order and

Richards filed a motion for contempt.



Foust, in turn, sought leave to file an interlocutory appeal

and made a motion to stay the judgment pending appeal.



The court of appeals granted Foust leave to appeal a non-final

order and stayed the order of the trial court granting

access to the public records.



The court of appeals ultimately remanded the case to the trial

court for an in camera inspection of the requested records and

to grant Richards access to the records approved by the court.
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ISSUE I



Richards challenges the representation of District

Attorney Foust by the attorney general's office.



We find that under sec. 165.25(1), Stats.,[fn3] the

attorney general's office has the proper

authority to represent Foust in this case.



It specifically authorizes representation of any state official,

employe or agent in a matter



          "in which the state or the people

           of this state may be interested."



Public access to prosecutorial records is a matter in which the

state and the people of the state have an interest.



ISSUE II



Defendant's access to prosecutorial information is authorized by

the judiciary and state legislature under limited circumstances. 

The state has a duty to disclose to a defendant information in

its control which tends to negate the guilt or reduce the

defendant's punishment.



Nelson v. State, 59 Wis.2d 474, 479, 208 N.W.2d 410 (1973).
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Wisconsin's discovery and inspection statute,

Section 971.23(1), Stats., requires that exculpatory and

inculpatory evidence be made available to a defendant.[fn4]



This court, however, is being asked to address whether a

prosecutor's files are open to public inspection. There is a

presumption that the public has the right to inspect public

records unless an exception is found. Hathaway v. Green Bay

School Dist., 116 Wis.2d 388, 392, 342 N.W.2d 682 (1984).



This court capsulated the essence of modern public records

law as follows:



   [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.



Id. at 397.



We conclude that the common law provides an exception

which protects the district attorney's files

from being open to public inspection.[fn5]
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The district attorney has broad prosecutorial discretion.

State v. Karpinski,

 92 Wis.2d 599,

285 N.W.2d 729 (1979).



This court has repeatedly concluded that



     "[t]he discretion to charge or not to charge, and the

     discretion of how to charge, rests solely with the district

     attorney. Only where there has been an aura of

     discrimination has this court indicated that checks were to

     be placed upon a prosecutor's charging decision.



     Unnamed Petitioners v. Connors,

     136 Wis.2d 118, 127-28,

     401 N.W.2d 782 (1987).



     See also State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160

     (1978) stating "`[t]he discretion resting with the district

     attorney in determining whether to commence a prosecution is

     almost limitless . . . .'"



In several cases defendants have been denied access to

prosecutors' files.  In State v. Herman, 219 Wis. 267, 274-75,

262 N.W. 718 (1935), a prosecutor who denied access to a

transcript of testimony in a John Doe proceeding was deemed to

have acted properly.[fn6]



The court in



In re Wis. Family Counseling Services v. State,

95 Wis.2d 670, 673,

291 N.W.2d 631 (Ct. App. 1980)



held that the accused had no right to inspect evidence relied

upon by the prosecution.  In addition, it has been held that an

accused does not have a general right to access a prosecutor's

files either before or after trial.



See





Matter of State ex rel. Lynch v. County Ct.,

 82 Wis.2d 454, 464,

262 N.W.2d 773 (1978),
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concluding that the constitutional right to a fair trial does not

include allowing a defendant to inspect a prosecutor's entire

file and that generalized inspection by the defense at an early

stage of a criminal prosecution is harmful to the orderly

administration of justice;



see also



Britton v. State,

 44 Wis.2d 109, 117-18,

170 N.W.2d 785 (1969),



holding that there is no general right to

inspect a prosecutor's files after trial.



We recognize that this case involves a defendant wanting

to see his own file.  However, if we declare the district

attorney's file open, anyone, including other prisoners,

can demand to see the files.





The file may contain historical data leading up to the

prosecution which may be in the form of anonymous statements,

informants' statements, or neighborhood investigations at the

scene of the crime  all of which are to be protected if

continuing cooperation of the populace in criminal

investigations is to be expected.



In addition to the common law, public policy grounds exist to

keep the prosecutorial file closed.  These public policy grounds

are obviously a part of the reason for the common law exception.



In



State ex rel. Spencer v. Freedy,

198 Wis. 388,

223 N.W. 861 (1929),



the defendant petitioner in a mandamus action sought access

to data collected in an investigation by a fire marshal.



The court was presented with the issue of whether there

was a right of access to the information gathered

in the course of the investigation.



The court concluded:



   The investigations themselves are not to be made

   matters of record.  It is merely his determinations

   based upon such investigations that are to be made

   matters of record.  Such determinations are in the

   nature of statistics, or at least they may be compiled

   as statistics, and such statistics, by the mandate of

   the statute, become records and are to be open to

   public inspection.
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Id. at 391.



Thus, the court decided that the public is not allowed

access to all data collected in the course of an investigation.



Rather, only conclusions, which are based upon investigations,

are matters open for public inspection. Likewise, we find that

access to data collected and placed into prosecutor files

is not open to indiscriminate public view.



Additional common law support for not permitting public

inspection of prosecutorial files is found in a 1985 opinion

of the Wisconsin attorney general.



Although the opinion of the attorney general is neither common

law nor binding on courts, nevertheless, the courts in Wisconsin

have historically considered attorney generals' opinions when

making decisions[fn7]



The attorney general concluded that a common law limitation

does exist against access to prosecutors'

files under the public records law.



The attorney general wrote that



     "there are numerous limitations under the common law

      upon the right of the public to examine papers."



74 Op. Att'y Gen. 4, 7 (1985), quoting

State ex rel. Youmans v. Owens,

28 Wis.2d 672, 680-81,

139 N.W.2d 241 (1965)



The attorney general added,



     "[i]t long has been the rule that documentary evidence

     in the files of a district attorney constitutes an

     exception to the rule permitting citizens to inspect

     papers in the possession of public officials."



Id. at 8-9, quoting

International Union v. Gooding,

251 Wis. 362,

 29 N.W.2d 730 (1947).
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The attorney general asserted that if at common law

defendants do not have a right of access to their

own file, it follows that the file cannot be open

to the public at large under the public records law.



Id. at 10.



We agree.  Furthermore, the Dane county district attorney, under

the common law right to not disclose access to the prosecutorial

file, had no obligation to respond to Harlan Richards' written

request for access.  This court, however, recommends that a

requester be notified in writing by the prosecutor's office

that prosecutorial files are not open for inspection.



Due to the fact that our decision is based on the common law

exception, our analysis will not address statutory exceptions or

public interests concerning nondisclosure.



By the Court.



The decision of the court of appeals is reversed.



[fn1]     State ex rel. Richards v. Foust,

          158 Wis.2d 531,

          463 N.W.2d 378 (Ct. App. 1990).



[fn2]     The file has been closed since May 10, 1988.



[fn3]     Section 165.25(1), Stats. 1987-88 provided as follows:



          Duties of department of justice.



          The department of justice shall:



          165.25(1) REPRESENT STATE.



                    Except as provided in s. 59.47(7), appear for

                    the state and prosecute or defend all actions

                    and proceedings, civil or criminal, in the

                    court of appeals and the supreme court, in

                    which the state is interested or a party, and

                    attend to and prosecute or defend all civil

                    cases sent or remanded to any circuit court

                    in which the state is a party; and, if

                    requested by the governor or either house of

                    the legislature, appear for and represent the

                    state, any state department, agency,

                    official, employe or agent, whether required

                    to appear as a party or witness in any civil

                    or criminal matter, and prosecute or defend

                    in any court or before any officer, any cause

                    or matter, civil or criminal, in which the

                    state or the people of this state may be

                    interested.



                    The radioactive waste review board may

                    request under Section 16.08(7) that the

                    attorney general intervene in federal 

                    proceedings.



                    All expenses of the proceedings shall

                    be paid from the appropriation under

                    Section 20.455(1)(d).



[fn4]     Section 971.23(1), Stats., provides as follows:



          Discovery and Inspection.



          971.23(1) DEFENDANT'S STATEMENTS.



                    Upon demand, the district attorney shall

                    permit the defendant within a reasonable time

                    before trial to inspect and copy or  

                    photograph any written or recorded statement

                    concerning the alleged crime made by the

                    defendant which is within the possession,

                    custody or control of the state including the

                    testimony of the defendant in an Section

                    968.26 proceeding or before a grand jury.



                    Upon demand, the district attorney shall

                    furnish the defendant with a written summary

                    of all oral statements of the defendant which

                    he plans to use in the course of the trial.



                    The names of witnesses to the written and

                    oral statements which the state plans to use

                    in the course of the trial shall also be

                    furnished.



[fn5]     Prior to the enactment of the first general public

          records legislation by Chapter 178, Laws of 1917, the

          public's right of access to government records was

          governed mainly by the common law.



          These general principles remain unchanged.



          Section 19.35(1)(a), Stats., states that



               "[s]ubstantive common law principles construing

               the right to inspect, copy or receive copies of

               records shall remain in effect."



[fn6]     The secrecy of John Doe proceedings was not

          established until Chapter 631, Laws of 1949.



[fn7]     See State ex rel. Lank v. Rzentkowski,

          141 Wis.2d 846,

          416 N.W.2d 635 (Ct. App. 1987);





          Fond du Lac County v. Rosendale Town,

          149 Wis.2d 326,

          440 N.W.2d 818 (Ct. App. 1989).



SHIRLEY S. ABRAHAMSON, J. (dissenting).



I write because the majority opinion fails to follow the

principles and procedures the legislature and the court

have set forth and because it reaches the wrong result.



I would affirm the decision of the court of appeals.  I agree

with the court of appeals that a prosecutor's closed case files

are records subject to the public records law.  I also agree with

the court of appeals that this case should be remanded to the

circuit court to conduct an in camera inspection of the material

and to perform the balancing test necessary to determine whether

to give the petitioner access to the files.



State ex rel. Youmans v. Owens,

 28 Wis.2d 672, 681-82,

137 N.W.2d 470 (1965).

                              I.



The legislature has established a presumption of

complete public access to government records,

consistent with the conduct of government business.
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Section 19.31, Stats. 1989-90.



Furthermore, Section 19.35(1)(a), Stats. 1989-90,

specifically states



          "[e]xcept as otherwise provided by law, any requester

          has a right to inspect any record."



The right to inspect, however, is, as we have stated in numerous

cases, not absolute.  Inspection may be denied when there is a

clear statutory exception,[fn1] when a limitation exists at

common law,[fn2] or when the public interest in nondisclosure

outweighs the right to inspect.  Hathaway v. Joint School

District, 116 Wis.2d 388, 397, 342 N.W.2d 682 (1984).



This case involves the petitioner's request to inspect a

prosecutor's closed case files concerning the petitioner.



No statute excepts these files from the public records law.

The majority concludes that a common law exception protects the

prosecutor's files from being open to public inspection.  The

majority reaches this conclusion by relying on cases involving

open, not closed, case files.[fn3]  The reasons for protecting

a prosecutor's open case files from public inspection are not

applicable to protecting a prosecutor's closed case files.

Hence the cases concerning open files upon which the

majority relies do not govern closed case files.
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The majority cites no case that discusses a common law

limitation on public inspection of a prosecutor's closed

case files, the parties cite no such case, and I have

found none.



Accordingly I conclude that no common law exception

exists for a prosecutor's closed case files.



Even if no statutory or common law rule bars public access

to an entire class of documents, the petitioner does not

necessarily get access to the documents.



Documents are not open to inspection under the public records law

if the harmful effect on the public interest in disclosing the

information outweighs the public's right to access to that

information.



Hathaway v. Joint School District,

 16 Wis.2d 388, 397,

342 N.W.2d 682 (1984);



State ex rel. Youmans v. Owens,

 28 Wis.2d 672, 681,

137 N.W.2d 470 (1965).

                             II.



The majority opinion, without explanation or citation

to authority, concludes that the prosecutor had no

obligation to respond to the written request for access.



Majority op. at 437.



Under the procedure set forth by statute, Section 19.35(4),

Stats. 1989-90, and our prior cases, the custodian of the

records (here the prosecutor) is obliged to state specific

reasons for refusing to allow inspection of the documents.



If the custodian gives no reason or insufficient reason, a writ

of mandamus compelling the production of records must issue.



Fox v. Bock,

149 Wis.2d 403, 415-16,

438 N.W.2d 589 (1989);



Newspapers, Inc. v. Breier,

 89 Wis.2d 417, 427,

279 N.W. 179 (1979);



State ex rel. Youmans v. Owens,

 28 Wis.2d 672, 682,

137 N.W.2d 470 (1965);



Oshkosh Northwestern Co. v. Oshkosh Library,

125 Wis.2d 480, 483,

373 N.W.2d 459 (Ct. App. 1985).
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The prosecutor in this case failed to give

any reason for his denial of access.



The prosecutor's petition for review and reply brief admit

that the court could choose to grant the petitioner a victory

based on the prosecutor's failure to give an explanation.[fn4]



The court of appeals properly decided to remand

the case for an in camera inspection.



For the reasons set forth, I would remand the case to the circuit

court to conduct an in camera inspection of the records.



I am authorized to state that Chief Justice Heffernan

joins this dissent.



[fn1]     Section 19.36(1), Stats. 1989-90.



[fn2]     Section 19.35(1)(a), Stats. 1989-90.



[fn3]     Matter of State ex rel. Lynch v. County Court,

          82 Wis.2d 454,

          262 N.W.2d 773 (1978), preliminary hearing;



          Britton v. State,

          44 Wis.2d 109,

          170 N.W.2d 785 (1969), postconviction proceedings;

                                 constitutional right to access

                                 to exculpatory evidence;



          State v. Herman,

          219 Wis. 267,

          262 N.W. 718 (1935), John Doe proceeding before trial;



          State ex rel. Spencer v. Freedy,

          198 Wis. 388,

          223 N.W. 861 (1929), investigation before prosecution;



          In re Wisconsin Family Counseling Services v. State,

           95 Wis.2d 670,

          291 N.W.2d 631 (Ct. App. 1980), John Doe investigation

                                          and open case files;



          74 O.A.G. 4, 7 (1985), prior to completion of trial.



[fn4]     The prosecutor's petition for

          review (p. 3) explains that



             "the procedural landscape in this public

              records case is not pretty, but the

              legal issue is too important to let go."
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PER CURIAM (on motion for reconsideration).



Harlan Richards moved this court for reconsideration of its

decision in



State of Wisconsin ex rel. Richards,

165 Wis.2d 429,

477 N.W.2d 608 (1991).



The Wisconsin Newspaper Association, the Wisconsin Broadcasters

Association and the Wisconsin Freedom of Information Council

filed a statement in support of the motion for reconsideration.



We deny the motion for reconsideration without costs.



We file this memorandum on the motion for reconsideration

to advise litigants of the court's procedure when an

appellant or petitioner files a notice of

dismissal pursuant to Section 809.18.



This case was accepted on briefs for review.



The opinion of the court on the matter was

filed on December 10, 1991.



After all briefs were filed and the matter was decided by the

court and assigned to a justice to write the court's opinion, the

parties filed a stipulation to dismiss the review which the court

declined to do under Section (Rule) 809.63, Stats.  The court on

February 18, 1992 adopted an amendment to its Internal Operating

Procedures codifying the procedure followed in this case to wit:



II. DECISIONAL PROCESS



    . . . .



    L. Miscellaneous



    4. Voluntary Dismissal.



     If a notice of voluntary dismissal of a proceeding on

     apetition for review, petition for bypass or certification

     or of an original action or supervisory writ proceeding is

     filed before all of the briefs in the proceeding are filed,

     the chief justice may act on the notice; if a notice of

     voluntary dismissal is filed after all of the briefs in

     the proceeding are filed, the chief justice shall

     bring the notice to the court for action.
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The court having considered the Motion for Reconsideration

filed on December 18, 1991, by Harlan Richards and the letter

response of the State of Wisconsin, and the statement in

support of the motion for reconsideration by the Wisconsin

Newspaper Association, the Wisconsin Broadcasters Association,

and the Wisconsin Freedom of Information Council filed

on January 2, 1992;



IT IS ORDERED that the Motion for Reconsideration

is denied, without costs.



Shirley S. Abrahamson, J. (dissenting).



Even though Richards' brief supporting the motion to reconsider

raises issues that were considered in the majority or dissenting

opinion, I would grant reconsideration on all issues and

arguments.[fn1]



I believe the court has seriously erred by ignoring the

controlling statute and legal precedent. The majority's

holding that a custodian of a public record need not state

reasons for denying a request for access to a record

directly conflicts with the text of and legislative

intent expressed in sec. 19.35(4)(a), Stats. 1989-90.
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Section 19.35(4)(a) expressly requires an authority to

give a reason for denying access to any record:



     "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."

      (emphasis added).[fn2]



For purposes of secs. 19.33 to 19.39, authority is defined

to include a district attorney,[fn3] and the word record

is defined broadly to include almost all materials

in a government office.[fn4]



The word record as used in Section 19.35(4)(a) includes

both records to which the public has access and those

to which the public may be denied access.
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Thus both the open and closed files in the district

attorney's office are records as that word is

used in the public record statute.



I do not know how, after the decision in this case,

the legislature could amend the statutes to make

its intent any clearer that each authority must

give a reason for denying access to a record.



Must the legislature add the words



     "AND WE REALLY MEAN IT"



to Section 19.35(4)(a)?



Furthermore the majority has failed to appraise the different

policy considerations governing prosecutors' open and closed

files and has failed to appreciate that government operations

and the public interest remain protected when circuit courts

examine, on a case by case basis, a prosecutor's closed files

in camera to determine whether they should be made public.



Under these circumstances I believe that reconsideration of the

entire case and the opportunity for oral argument of the issues

is needed.  For these reasons I dissent from the denial of the

motion for reconsideration.



I am authorized to state that Chief Justice Heffernan

and Justice Bablitch join in this dissent.



[fn1]     The court's internal operating procedures state:



          Reconsideration, in the sense of a rehearing

          of the case, is seldom granted.



          A change of decision on reconsideration will ensue

          only when the court has overlooked controlling legal

          precedent or important policy considerations or has

          overlooked or misconstrued a controlling or

          significant fact appearing on the record.





          A motion for reconsideration may result in the court's

          issuing a corrective or explanatory memorandum to its

          opinion without changing the original mandate.



          Wisconsin Supreme Court Internal

          Operating Procedures II.J (1991).



[fn2]     The requirement that the authority give reasons for a

          denial of a request for any record is further explained

          in Section 19.35(4)(b) which provides as follows:



          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 5 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 Section 19.37(1) or

                         upon application to the attorney general

                         or a district attorney.



[fn3]     Section 19.32(1) defines authority to include an

          elected official.



[fn4]     Section 19.32(2) defines record broadly as follows:



          19.32 Definitions.  As used in ss. 19.33 to 19.39:



          19.32(2)  "Record" means any material on which

                    written, drawn, printed, spoken, visual or

                    electromagnetic information is recorded or  

                    preserved, regardless of physical form or

                    characteristics, which has been created or is

                    being kept by an authority.



                    "Record" includes, but is not limited to,

                    handwritten, typed or printed pages, maps,

                    charts, photographs, films, recordings, tapes

                    (including computer tapes), and computer

                    printouts.



                    "Record" does not include drafts, notes,

                    preliminary computations and like materials

                    prepared for the originator's personal use or

                    prepared by the originator in the name of a

                    person for whom the originator is working;,

                    materials which are purely the personal  

                    property of the custodian and have no

                    relation to his or her office; materials to

                    which access is limited by copyright, patent

                    or  bequest; and published material in the

                    possession of an authority other than a

                    public library which are available for sale,

                    or which are available for inspection at a

                    public library.
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DECISIONS AND OPINIONS CITING RICHARDS:
PENDING