STATE EX REL. YOUNG v. SHAW,

165 Wis.2d 276 (Ct.App. 1991)

477 N.W.2d 340

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LINK TO DECISIONS AND OPINIONS CITING THIS CASE.


STATE of Wisconsin EX REL. Edward G. YOUNG, Plaintiff-Appellant v.                        Kenneth A. SHAW, President, University of Wisconsin System, Ralph E. Hanson, Director, University of Wisconsin Department of Police & Security, Robert Hartwig, Captain, University of Wisconsin Department of Police & Security, and C. William Foust, District Attorney, Dane County, Defendants-Respondents.
Court of Appeals.  No. 90-0576. Submitted on briefs January 8, 1991.
Decided October 24, 1991.
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APPEAL from an order of the circuit court for Dane county: 

GERALD C. NICHOL, Judge.



Affirmed in part; reversed in part and cause remanded.



For the plaintiff-appellant the cause was submitted on the briefs

of E. Gordon Young of Madison.



For the defendants-respondents the cause was submitted on the

briefs of Cal W. Kornstedt, Dane County Corporation Counsel, with

Margaret L. O'Donnell, deputy corporation counsel.



Before Eich, C.J., Gartzke, P.J., and Sundby, J.



GARTZKE, P.J.



Edward Young appeals from an order dismissing his complaint.



Young sought mandamus to compel the release of University

of Wisconsin police records regarding their investigation

of an automobile accident which resulted in

a criminal charge against him.



The records at issue are a uniform traffic accident report,

a narrative report referred to in the accident report,

a dispatch record and photographs.



Young also sought costs, fees, and damages from the defendants

for having denied him access to those materials.



The defendants are Kenneth Shaw, president of the University of

Wisconsin system; Robert Hartwig, captain of the University

Police Department; Ralph Hanson, chief of that department;

and, C. William Foust, the Dane County District Attorney.



We deem the issues to be



(1)  whether by virtue of Section 346.70(4), Stats.,[fn1] Young

     had the right to examine or copy the items he sought;



(2)  whether after the university police delivered the items to

     the district attorney, Young had the right under the open

     records law, secs. 19.31-19.39, Stats., to inspect them;



(3)  if so, whether Young "prevailed" in his mandamus action

     against the district attorney even though Young inspected

     the items while that action was pending; and,



(4)  if so, whether Young, who is a lawyer representing himself

     pro se, may be awarded fees under Section 19.37(2), Stats.
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We conclude that Young had the right to examine or copy

the complete accident report (including the narrative report)

and photographs under Section 346.70(4), Stats.,

but not the dispatch record.



We conclude that the common law rule that a defendant is not

entitled to inspect the evidence and other information

in the hands of the prosecution is inapplicable

to the items covered by Section 346.70(4).



For that reason, even after they were delivered to the district

attorney, Young had the right under the open records law to

inspect the complete report and photographs.



We conclude that Young "prevailed" in his mandamus action

and is entitled to recover from the district attorney

damages of not less than $100 and his actual

costs under Section 19.37(2), Stats.



We conclude that Young may not be awarded attorney's

fees since he represented himself.





No basis exists for a punitive damages award under Section

19.37(3), Stats.[fn2]  We reverse that part of the order

dismissing his complaint for costs and damages against

the district attorney and remand for further proceedings

regarding those items we have held he may recover.



We otherwise affirm.
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Following a bench trial, the trial court found that on

February 16, 1989, the university police received a

complaint of a "hit and run, property damage only"

accident at a university parking area in Madison.



Young's vehicle was alleged to have left the

scene of the accident with another vehicle.



The record contains a "Wisconsin Motor Vehicle Accident Report," 

a form marked "MV4000."  It bears the name of Officer Burke

and apparently was prepared by him.



The court found Burke filed a written report and after

it was typed, the handwritten draft was destroyed.



This report was referred to in the "narrative" part of the

uniform traffic report as follows:  "SEE OFFICERS REPORT

REFERENCE THIS CASE NUMBER 153468."  We refer to the

latter report as Burke's narrative.



Burke's narrative relates his conversations with the complainant

and Young regarding the accident and its aftermath, his

observations of both vehicles and it states

that photographs were taken of them.



The record shows that on March 6, 1989, Young was charged with

leaving the scene of an accident involving only property damage,

contrary to Section 346.67(1), Stats., a misdemeanor.



The court found that on March 7, 1989, Young made an oral demand

at the university police station pursuant to Section 19.35 and

Section 346.70(4)(f), Stats., for the uniform traffic accident

report and related documents.



He repeated his demand in writing on March 8.



He received a copy of the accident report but

was denied a copy of Burke's narrative.



The photographs had not yet been developed.



The court found that when confronted with Young's demand,

Captain Hartwig contacted an assistant district attorney.



She told Hartwig that Young would receive Burke's narrative

at his initial appearance on his misdemeanor charge.



On March 9 and 14, 1989, Young made written demands

on the district attorney's office for Burke's

narrative and the photographs.
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The record shows that on March 15, Captain Hartwig wrote

to Young, stating that "any release of information prior

to final disposition of the pending traffic charge is

the prerogative of the District Attorney Office."



On March 22, 1989, the assistant district attorney sent

a letter informing Young that because the state would

be filing criminal charges, his request was covered

by Sections 971.23 and 971.31(5)(a), Stats.[fn3]



She stated she would make a copy of the police report available

to Young at his initial appearance on March 29.



On that day she mailed to him the complete accident

report including Burke's narrative.



On May 9, 1989, Young first saw the photographs at

the pretrial conference on his misdemeanor charge.



It is undisputed that at that or a later conference, Young

discovered a "dispatch record" showing the time and by

whom the accident was reported to the police and that

Burke was dispatched to it.



On March 27, 1989, Young filed a complaint seeking mandamus.
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The trial court concluded that the university police had complied

with Section 346.70(4)(f), Stats. and that the open records law

did not apply to Burke's narrative, since a criminal defendant is

not entitled to the prosecution's investigative material.



The court found that even if the open records law had been

violated, the records were produced, and that the

defendants had acted in good faith.



The court added that if it were to find that the open records law

had been violated, it would award only $1.00 nominal damages

and no punitive damages.



It would award no attorney's fees because

Young failed to prove them.



The court dismissed Young's action in its entirety.



Young's action for mandamus to compel access to the records has

been mooted by their release to him while his action was pending.



Cf.



State ex rel. Morke v. Wisconsin Parole Bd.,

148 Wis.2d 250, 253,

434 N.W.2d 824, 825 (Ct. App. 1988)

(mandamus under Section 19.37(1)(a), Stats.,

properly denied where plaintiff had previously

received same records by certiorari).



His claim for reasonable attorney's fees,

damages and actual costs is not moot.



He may recover those items under the open records law,

Section 19.37(2), Stats. (and possibly punitive damages

under subsection 19.37(3)) if he "prevailed" in whole

or in substantial part in his mandamus action.[fn4]



As will be shown, it is possible for a plaintiff to "prevail"

in a mandamus action even if access to the records

is granted after the action is brought.



We first review Young's right under Section 346.70(4)(f), Stats.,

to examine the accident report,



Burke's narrative, the dispatch record and photographs

while the university police retained them.
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We do so because, as later developed, we conclude that

the statute impresses those materials (except the dispatch

record) with a public character and excludes them from the

common law rule that a criminal defendant has no right to

examine investigative material in the hands of a prosecutor.



Section 346.70(4)(a) and (b), Stats., provides that every law

enforcement agency investigating a traffic accident shall forward

a report of the accident on a uniform traffic accident report

form to the Department of Transportation.



Section 346.70(4)(f), Stats., provides in relevant part:



        346.70(4)(f)     [A]ny person may with proper care,

                         during office hours, and subject to

                         such orders or regulations as the

                         custodian thereof prescribes, examine

                         or copy such uniform traffic accident

                         reports, including supplemental or

                         additional reports, statements of

                         witnesses, photographs and diagrams,

                         retained by local authorities, the

                         state traffic patrol or any other

                         investigating law enforcement agency.



No issue is raised regarding the university police department's

being an "investigating law enforcement agency" for the

purposes of Section 346.70(4)(f) Stats.,

and the timeliness of Young's demand.



No claim is made that the police relied on orders or regulations

they had prescribed when they refused to allow Young to examine

Burke's narrative.[fn5]  The police had Burke's narrative when

Young made his demand.
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The trial court ruled that the phrase "supplemental or

additional reports" in Section 346.70(4)(f), Stats.,

relates to the  "supplemental reports"  described in

Section 346.70(3m)(a), Stats.,[fn6] that Burke's report

was not such a "supplemental report," and therefore

Young had no right to examine it.



The court also ruled that Section 346.70(4)(f) does not

cover the dispatch record and noted that the

photographs were not yet available.



We cannot accept all of the trial court's reasoning.



Officer Burke's narrative was his own, not that of Young or

the owner of the other vehicle or a witness to the accident.



Nothing in Section 346.70(3m) and 346.70(4), Stats.,

excludes the "supplemental reports" referred to in

subsection 346.70(3m) from their availability for

examination under subsection 346.70(4)(f).



More importantly, Officer Burke's narrative was part of the

uniform traffic accident report referred to in the statute,

and the accident report itself directed the reader to

"see" Burke's narrative.[fn7]
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The trial court expressed concern that if Section 346.70(4)(f),

Stats., is broadly read, then defendants in criminal traffic

cases have a nearly unlimited precharge and pretrial right

of discovery.



However, the statute provides that any person may examine

or copy the accident report and related documents.



Young therefore had the right to examine and copy Burke's

narrative while it was retained by the university police.



The police violated Section 346.70(4)(f) when they refused

to allow Young to examine Burke's narrative.[fn8]



The university police did not violate Section 346.70(4)(f),

Stats., when they failed to allow Young to examine

the dispatch record.



The statute limits disclosure to the uniform

traffic accident report and related items.



A record of a dispatch of an officer to an accident

is not an accident report.



Section 346.



70(4)(f), Stats., requires a law enforcement agency to allow

examination of photographs related to the accident report.



The photographs were unavailable when Young

made his demands on the university police.
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The police did not violate the statute

with respect to the photographs.



We do not decide whether a law enforcement agency must allow

examination or copying of film negatives or must develop

photographs to satisfy a demand.



Young's demands did not go that far.



We turn to Young's right under Section 346.70(4), Stats.,

vis-a-vis the district attorney.



That statute imposes a duty on various agencies including any 



     "investigating law enforcement agency."



It does not expressly impose a duty on a district attorney.



Article 6, Section 4(1) of the Wisconsin Constitution refers to

district attorneys as "elected county officers."  Young's right,

if any, to inspect Officer Burke's narrative and the photographs

in the hands of the district attorney must be based on the open

records law, Sections 19.31-19.39, Stats.



Section 19.35(1)(a), Stats., provides in relevant part:



     "Except as otherwise provided by law, any

      requester has a right to inspect any record.



      Substantive common law principles construing

      the right to inspect, copy or receive copies

      of records shall remain in effect."



No issue is raised as to whether Young is a requester

or the uniform traffic accident report is a record.





Young had the right to inspect the entire accident report and the

photographs in the possession of the district attorney, unless

a statute or common law principle denied him that right.



We look first to the common law.



We do so because common law limitations on the public's access to

public records continue notwithstanding the open records law.



State ex rel. Bilder v. Township of Delavan,

112 Wis.2d 539, 552,

334 N.W.2d 252, 259 (1983).



The common law rule is that, subject to constitutional

considerations,[fn9] a criminal defendant

has no right of discovery.
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State v. Miller,

 35 Wis.2d 454, 474,

151 N.W.2d 157, 166 (1967).



     [T]he rule is well established that "one accused of crime

     enjoys no right to an inspection of the evidence relied upon

     by the public authorities for his conviction."



State v. Herman,

219 Wis. 267, 274,

262 N.W. 718, 722 (1935),



quoting from



State ex rel. Spencer v. Freedy,

198 Wis. 388, 392,

223 N.W. 861, 862 (1929),



and citing



Steensland v. Hoppmann,

213 Wis. 593, 599,

252 N.W. 146, 148 (1934),



State ex rel. Schroeder v. Page,

206 Wis. 611, 615,

240 N.W. 173, 174 (1932), and



Santry v. State,

 67 Wis. 65, 66,

 30 N.W. 226, 227 (1886).[fn10]



Section 346.70(4)(f), Stats., plainly allows "any person" to

examine or copy a uniform traffic accident report and related

materials retained by, in this case, the police.





Because the statute grants the right to "any person,"

it impresses accident reports and related materials

with the character of public records.



That character is inconsistent with the common law rule

allowing the prosecution to withhold investigative

material from a criminal defendant.



We conclude that Section 346.70(4)(f) creates a limited exception

to the common law rule that the prosecution may withhold

investigative material from a criminal defendant.



The exception is limited to the material

described in that statute.
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It follows that such an accident report and the materials

described in that statute are subject to access under the

open records law, Sections 19.31-19.39, Stats., unless

some other statute restricts the right of access.



The criminal procedure statutes relied on by the assistant

district attorney to postpone Young's inspection of the accident

report and photographs in the hands of the district attorney do

not restrict Young's right of access under the open records law.



Nothing in the open records law requires a criminal defendant to

comply with the rules of criminal procedure to obtain a record

as to which the defendant has a right of access under

Section 19.35(1)(a), Stats.



The right under the open records law is entirely different

from the limited right under Section 971.23(1), Stats.



The open records law, Section 19.35(4)(a), Stats.,

requires that a request be filled or denied



     "as soon as practicable and without delay."



The right of access under the open records law extends to

the entire accident report, regardless of its contents.



Section 971.23(1) if far more limited.



It permits a defendant within a reasonable time before

trial to inspect and copy or photograph any written or

recorded statement made by the defendant



     "concerning the alleged crime made by the defendant . . . ."



It also requires the district attorney to furnish a defendant

with the names of witnesses who gave written and oral statements

which the state plans to use in the course of the trial.







We conclude that the district attorney violated the

open records law by withholding Officer Burke's

narrative from Young until March 29, 1989, and

withholding the photographs from him until May 9, 1989.
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Young is entitled to recover his reasonable attorney's fees,

compensatory damages and other actual costs under

Section 19.37(2), Stats., if he prevailed



     "in whole or in substantial part"



in his mandamus action filed on March 27, 1989.



A judgment or an order favorable in whole or in part in a

mandamus action is not a necessary condition precedent

to a finding that a party prevailed against

an agency under Section 19.37(2).



Racine Educ. Ass'n v. Board of Educ.,

129 Wis.2d 319, 328,

385 N.W.2d 510, 513 (Ct. App. 1986).



     "This is because the purpose of the statute is to encourage

     voluntary compliance; if the government can force a party

     into litigation and then deprive that party of the right

     to recover expenses by later disclosure, it would render

     the purpose nugatory."  Id.



To determine whether a plaintiff has "prevail[ed] in whole or in

substantial part" for purposes of Section 19.37(2), Stats., we

usually apply the analysis in Cox v. United States Dep't of

Justice, 601 F.2d 1 (D.C. Cir. 1979) (per curiam).



Racine Educ. Ass'n,

129 Wis.2d at 326-27,

385 N.W.2d at 512-13.



The Cox court held that a party claiming to have prevailed must

show a causal nexus between the mandamus action and

the agency's surrender of the information sought.



The Cox court said that in deciding whether a causal nexus

exists, it is appropriate



     to consider, inter alia, whether the agency, upon

     actual and reasonable notice of the request, made a

     good faith effort to search out material and to pass on

     whether it should be disclosed . . . If rather than the

     threat of an adverse court order either a lack of actual

     notice of a request or an unavoidable delay accompanied

     by due diligence in the administrative processes

     was the actual reason for the agency's failure to



     respond to a request, then it cannot be said that the

     complainant substantially prevailed in his suit.



Cox, 601 F.2d at 6.
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Here, however, the assistant district attorney

never complied with the open records law.



She complied only with other statutes she

erroneously believed were applicable.



She insisted that Young had no right to inspect the

complete accident report except as allowed

under the criminal procedure statutes.



It took Young's appeal to establish his right of

inspection under the open records law.



Given these circumstances, to deprive Young of his right to

recover damages and his litigation expenses would frustrate

and indeed negate the purpose of the open records law

rather than encourage compliance with it.



We hold that Young "prevailed" within the meaning of

Section 19.37(2), Stats.



Consequently, Young is entitled to recover his expenses and

damages from the district attorney under that statute.[fn11]



Young asked the trial court to award compensatory damages,

punitive damages and attorney's fees.



Section 19.37(2), Stats., provides in relevant part:



        19.37(2)  "The court shall award reasonable attorney

                   fees, damages of not less than $100, and

                   other actual costs to the requester if

                   the requester prevails in whole or in

                   substantial part [in a mandamus action]."



Young ultimately prevailed.
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Young failed to prove his compensatory damages, but even

without proof, he is entitled to "damages of not less

than $100" and to his actual costs.  Id.



On remand, the trial court shall award Young $100

in damages and his actual costs.



Section 19.37(3), Stats., allows a punitive damage award



     "[ill a court finds that an authority or legal custodian

     under s. 19.33 has arbitrarily and capriciously denied or

     delayed response to a request . . ."



A decision is arbitrary and capricious if it lacks a rational

basis or results from an unconsidered, willful

and irrational choice of conduct.



Wisconsin Pub. Serv. Corp. v. Public Serv. Comm'n,

109 Wis.2d 256, 263,

325 N.W.2d 867, 870 (1982).



When, as here, the facts have been established, whether a

decision is arbitrary or capricious is a question of law.



Id. at 265, 325 N.W.2d at 871.



No basis exists for an award of punitive damages.



The assistant district attorney expressed to the trial court what

she believed was a legal basis for denying Young's immediate

access to the complete accident report and photographs.



That she was wrong does not justify punitive damages.



The court found that she acted in good faith.



We turn to the attorney's fees issue under Section 19.37(2),

Stats.  Young may be entitled to his fees on appeal even

if he failed to prove fees before the trial court.



See Palfrey v. DHSS, 163 Wis.2d 405, 419, 471 N.W.2d 295, 301

(Ct. App. 1991) (statute awarding costs to "prevailing party"

includes reasonable attorney's fee on successful appeal).



However, Young is an attorney and he represented

himself in this action and on this appeal.



We asked the parties to brief the question whether a pro se

litigant-attorney may be awarded fees under Section 19.37(2),

Stats., in view of the reasoning in

Kay v. Ehrler,

111 S.Ct. 1435 (1991) 



The Kay court held that a pro se litigant-attorney is not

entitled to fees under 42 U.S.C. Section 1988,

which provides in relevant part:



     "[T]he court, in its discretion, may allow the prevailing

     party . . . a reasonable attorney's fee . . ."



The court reasoned that Congress likely contemplated an

attorney-client relationship as a predicate for an award.



Id. at 1437.
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The purpose of the statute is to ensure the effective

prosecution of claims with independent counsel.





Id. at 1437-38



     The attorney who represents himself is deprived of the

     judgment of an independent third party in framing the

     theory of the case, evaluating alternative methods of

     presenting the evidence, cross-examining hostile

     witnesses, formulating legal arguments, and in

     making sure that reason, rather than emotion,

     dictates the proper tactical response to

     unforeseen developments in the courtroom.



Id. at 1438.



Young's representation of himself in this action does not

exemplify that quotation.



The question is whether Section 19.37(2), Stats., itself

contemplates an award of fees to a pro se litigant-attorney,

regardless of the quality of that self-representation.



We conclude it does not for the same reasons

expressed by the Kay court.



We reject the argument that if a statute fails to expressly

preclude an award of fees to a pro se litigant-attorney,

the legislature meant to allow it.



The provision for attorney's fees implies the existence

of an attorney-client relationship.



If that relationship does not exist, the fees cannot be awarded.



Young points to no legislative history or statute

suggesting the contrary.
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Indeed, the legislature's intent elsewhere expressed

is consistent with our holding.



Section 814.04(1)(c), Stats., provides:



     "No attorney fees may be taxed on behalf of any

      party unless the party appears by an attorney

      other than himself or herself."



While that statute applies to attorney's fees as an item of

costs, Town of Mr. Pleasant v. Werlein, 119 Wis.2d 90, 93, 349

N.W.2d 102, 104 (Ct. App. 1984), it shows that the legislature

has indirectly decided that fees should not be awarded to a pro

se litigant-attorney.







Young argues that the primary purpose of the open records law

is the public benefit, and that denying fees to pro se

litigant-attorneys deprives the public of that benefit.



The primary purpose of the open records law is

to ensure an informed electorate.



Section 19.31, Stats.



An informed electorate is, of course, a public benefit.



But it is not necessary that fees be awarded to pro se

litigant-attorneys in order to inform an electorate.



The primary purpose of the Freedom of Information Act, 5 U.S.C.

Section 552, is also to ensure an informed electorate, N.L.R.B.

v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978), and has

been construed not to authorize an award of fees to a pro se

litigant-attorney.



Falcone v. I.R.S., 714 F.2d 646 (6th Cir. 1983), cert. denied,

466 U.S. 908 (1984) (cited in Kay, 111 S.Ct. at 1436 n.4).



Young argues that persons who bring open records actions are

enforcing a public right and implementing the policy

of open government.



A person who brings an action to enforce a statutory right may be

acting as a "private attorney general" to enforce the public's

rights and to implement an important public policy.



Watkins v. LIRC,

117 Wis.2d 753, 764,

345 N.W.2d 482, 488 (1984).



Unless attorney's fees are awarded, some litigants may be

unable to advance their own and the public interest.



Id.  That rationale does not apply here.



The open records law allows an award of attorney's fees.
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The private attorney general rationale does not require

an award to pro se litigant-attorneys.[fn12]



Having concluded that Young is not entitled to attorney's

fees under Section 19.37(2), Stats., we direct

the trial court to award no fees to him.



By the Court. Ä Order affirmed in part; order reversed

in part and remanded as to respondent C. William Foust,

Dane County District Attorney, for further proceedings

consistent with this opinion.





[fn1]     At this point, we need only note that Section

          346.70(4)(f), Stats., provides in substance that



               "any person"



          may examine or copy a uniform traffic accident

          report and photographs retained by an

          investigating law enforcement agency.



[fn2]     Section 19.37(2), Stats., provides in

          substance that the court



               "shall award reasonable attorney fees, damages of

               not less than $100, and other actual costs to the

               requester [of a public record] if the requester

               prevails in whole or in substantial part in [a

               mandamus action to obtain access to a record or

               part of a record]."



          Section 19.37(3), Stats., permits the court to award

          punitive damages for an arbitrary and capricious

          denial or delayed response to a request.



[fn3]     Section 971.23(1), Stats., provides:



               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.



Section 971.31(5)(a), Stats., provides:



     Motions before trial shall be served and filed within 10

     days after the initial appearance of the defendant in

     a misdemeanor action or 10 days after arraignment in

     a felony action unless the court otherwise permits.



[fn4]     Section 346.70(4)(f), Stats., contains

          no comparable provision.





          Young's rights to fees, damages and costs are

          limited to Section 19.37(2) and (3), Stats.



[fn5]     The defendant argues that to limit disclosure

          in accordance with the criminal discovery

          process is a reasonable regulation under

          Section 346.70(4)(f), Stats.



          However, that statute refers to orders or regulations 



               "the custodian thereof prescribes."



          The police did not prescribe the

          criminal discovery statutes.



          No showing was made that the university police had

          prescribed any pertinent orders or regulations.



[fn6]     Section 346.70(3m)(a), Stats., provides

          in relevant part:



               The department may require any operator,

               occupant or owner of a vehicle involved

               in an accident of which report must be

               made . . . to file supplemental reports

               whenever the original report is

               insufficient in the opinion of

               the department and may require

               witnesses of accidents to render

               reports to the department.



[fn7]     The accident report was

          a "uniform traffic accident report.



          Section 346.70(2), Stats., provides in part:



               Unless a report is made under subsectdion

               346.70(4) by a law enforcement agency, within 10

               days after an accident of the type described in

               subsection 346.70(1), the operator of a vehicle

               involved in the accident shall forward a written

               report of the accident to the department . . . . 

               Every accident report required to be made in

               writing shall be made on the appropriate form

               approved by the department. . .(Emphasis added.)



          Section 346.70(4)(a) and (b), Stats., require every law

          enforcement agency investigating or receiving a report

          of a traffic accident described in subsection 346.70(1)

          to forward a report to the department on a uniform

          traffic accident report form.



          As we have said, the report which incorporates

          Burke's narrative is on form "MV4000."



          That form is prescribed by the department

          of transportation.



          See notes appended to Wisconsin Administrative

          Code Sections Trans 100.01 and 100.03.



[fn8]     In 1963, by contrast, the same statute required local

          authorities to keep accident reports confidential.



          Section 346.70(4)(f), Stats. (1963), stated in part:



               "All [accident] reports shall be confidential . ."



          In 1965, the legislature amended the statute to

          allow inspection.  Chapter 370, Laws of 1965.



[fn9]     See Brady v. Maryland, 373 U.S. 83, 87 (1963)

          (prosecution violates due process by suppressing

          evidence material to guilt or punishment).



[fn10]    The attorney general has relied on these cases to

          support an opinion that a prosecutor's case files are

          not subject to access under the open records law.



          74 Op. Att'y Gen. 4 (1985). That opinion did not deal

          with access to uniform traffic accident reports under

          Section 346.70(4)(f), Stats., and the effect of that

          statute on the common law rule.



[fn11]    Young has not briefed the question whether he has an

          assertable right against the police under both Section

          346.70(4)(f), Stats., and the open records law.



          He has a right against the police under Section

          346.70(4)(f), but that statute does not allow

          an award of fees or costs for a violation.



He has a right against the district attorney under the open

records law, which allows a fee award, but not to examine or

inspect the accident report under Section 346.70(4)(f).



[fn12]    We note that Section 19.37(1)(b), Stats., provides

          in part:

                    "The requester may, in writing, request the

                    district attorney of the county where the

                    record is found, or request the attorney

                    general, to bring an action for mandamus

                    asking a court to order release of

                    the record to the requester."
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DECISIONS AND OPINIONS CITING
STATE EX REL. YOUNG v. SHAW,

165 Wis.2d 276 (Ct.App. 1991)

477 N.W.2d 340