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).)
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]
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.
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).
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]
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),
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 Ä 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.
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).
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.
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.
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).
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."
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.
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.
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.
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.
DECISIONS AND OPINIONS CITING RICHARDS:
PENDING