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,
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,
Court of Appeals. No. 90-0576.
Submitted on briefs January 8, 1991.
Decided October 24, 1991.
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.
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.
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.
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.
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.
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.
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.
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.
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]
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
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.
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.
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.
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),
State ex rel. Spencer v. Freedy,
198 Wis. 388, 392,
223 N.W. 861, 862 (1929),
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.
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.
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.
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.
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.
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.
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
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
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.
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
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
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
"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."
DECISIONS AND OPINIONS CITING
STATE EX REL. YOUNG v. SHAW,
165 Wis.2d 276 (Ct.App. 1991)
477 N.W.2d 340