State ex rel. Milwaukee Police Ass'n v. Jones

• Decision Date: 13 June 2000
• Docket Number: No. 98-3629.,98-3629.
• Citation: 237 Wis.2d 840,2000 WI App 146,615 N.W.2d 190
• Parties: STATE of Wisconsin EX REL. MILWAUKEE POLICE ASSOCIATION, Bradley DeBraska, Petitioners-Respondents, v. Arthur JONES, Chief of Police, City of Milwaukee, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

237 Wis.2d 840

2000 WI App 146

615 N.W.2d 190

STATE of Wisconsin EX REL. MILWAUKEE POLICE ASSOCIATION, Bradley DeBraska, Petitioners-Respondents, v. Arthur JONES, Chief of Police, City of Milwaukee, Respondent-Appellant.

No. 98-3629.

Court of Appeals of Wisconsin.

Submitted on briefs April 4, 2000.

Decided June 13, 2000.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Grant F. Langley, city attorney, and Susan E. Lappen, assistant city attorney, of Milwaukee.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Laurie A. Eggert and Jonathan Cermele, of Eggert Law Office, S.C., of Milwaukee.

Before Wedemeyer, P.J., Schudson and Curley, JJ.

¶ 1. SCHUDSON, J.

The City of Milwaukee and its Chief of Police, Arthur Jones (collectively, the "City"), appeal from the circuit court order granting the petition for writ of mandamus, filed by the Milwaukee Police Association and its president, Bradley DeBraska (collectively, the "MPA"). The circuit court order compels the City to produce its digital audio tape (DAT) recording of a 911 telephone call, pursuant to the MPA's open records request.¹ The City argues that its production of an analog audio tape recording of the call satisfied the MPA's open records request and, therefore, that the circuit court erred in ordering it to produce the DAT recording.

¶ 2. We conclude that the circuit court correctly determined that, because of the differences between a DAT and an analog recording, the City was required to produce the DAT recording for the MPA's examination and copying, in order to comply with the MPA's open records request. Accordingly, we affirm.

I. BACKGROUND

¶ 3. Although a number of factual disputes emerged at the circuit court hearings, the facts relevant to resolution of this appeal are undisputed. On June 19, 1997, the MPA faxed a request to Chief Jones and the Open Records Division of the Milwaukee Police Department for a "[c]opy of the 911 call emanating from 3814 West Hemlock Street, Milwaukee, Wisconsin ..., received on June 18, 1997 at 13:13:48 hours."² The fax specified that the requested copy was to be "in its original [form—]unaltered, unmodified and otherwise uncensored in any fashion." ¶ 4. Responding to the request, Chief Jones provided an analog tape recording which, the court found, "was an understandable to the naked adult human ear as the original DAT tape," and was "substantially as audible as the original DAT information maintained on the DAT tape." Counsel for the MPA, however, in an October 7, 1997 letter, advised the Open Records Division that he had submitted the tape to an expert who informed him that "the best spectrographic and waveform review and enhancement should be conducted on the original 911 tape."³ Accordingly, counsel requested that the Open Records Division "allow [his] expert access to the ... 911 tape for the purpose of nondestructive analysis and/or the making of a DAT and/or analog copy."

¶ 5. After being advised by telephone that his October 7 request was denied, MPA counsel, in an October 28, 1997 letter, requested a written response, pursuant to WIS. STAT. § 19.35(4)(b) (1995-96),⁴ which provides, in part, that "[i]f 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." In his October 28 letter, counsel also reiterated and explained his request, stating, in part:

The purpose of my request for access [to the 911 tape] is to allow my expert to make a digital recording of the calls for the purpose of conducting a spectrographic and waveform review and enhancement of the conversations. In order to make this recording, my expert would simply unplug the cassette recorder currently plugged in to your 911 recorder, plug in his digital and professional analog recorders and simply transfer the audio information from one tape (the 911 tape) to another tape. Nothing in this process will cause any damage to the 911 tape, the 911 recorder, or auxiliary equipment. The recording process will be no more disruptive than the disruption made when the Milwaukee Police Department makes a recording of a 911 call using its own recording equipment.

¶ 6. By letter of November 4, 1997, Chief Jones denied the requested access for the MPA's expert. Chief Jones maintained that, by providing "a copy of the ... 911 transmission" as originally requested, his department had complied with the statutory requirement to provide "a copy of the tape recording substantially as audible as the original." See WIS. STAT. § 19.35(1)(c).⁵

¶ 7. Challenging the basis for Chief Jones's denial, the MPA petitioned for a writ of mandamus on December 22, 1997. See WIS. STAT. § 19.37(1)(a).⁶ The petition stated, in part:

The reason given for [Chief Jones's] refusal to permit petitioners to inspect and copy the audio recording requested is inadequate for the following reasons:

a. [Chief Jones] has refused to allow inspection by the petitioners' expert, in violation of sec. 19.35(1), Wis. Stats., which provides that "any requester has a right to inspect any record." (Emphasis added).

b. The original 911 call was recorded digitally; the recording provided to the petitioners was in analog format. Thus, the petitioners did not receive a copy of the recording as required by sec. 19.35(1)(c)[,] Wis. Stats.

c. The recording provided to the petitioners, according to the petitioners' expert, "has suspicious record event anomalies", indicating that the petitioners may not have received the entire recording. Thus, it is not certain that [Chief Jones] has provided the petitioners with a copy of the entire record, as required by sec. 19.35(1)(c), Wis. Stats. The only means of ascertaining the authenticity of the record is to examine either the actual recording or a digital copy of the recording.

Also on December 22, 1997, the circuit court ordered an alternative writ of mandamus.⁷ On January 12, 1998, Chief Jones filed a return to the writ and moved to quash it.

¶ 8. The circuit court conducted extensive hearings devoted, in substantial part, to gaining a precise understanding of the differences between analog and DAT recording formats and whether it would be possible to generate a DAT copy of the original DAT recording created by the 911 system. On one of the hearing dates, the court convened at the Communications Bureau of the Milwaukee Police Department, where the court, counsel for the parties, the MPA's expert, and police personnel listened to the original 911 DAT recording as well as the analog copy provided in response to the MPA's original request. They also listened to another analog copy that was made during that day's hearing. The court also considered testimony from the MPA's expert, as well as affidavits from both the MPA's expert and a communication recording systems team leader for Dictaphone, Inc., the manufacturer of the 911 recording system.

¶ 9. The court concluded that Chief Jones, in providing an analog copy, had complied with the MPA's original request, consistent with WIS. STAT. § 19.35(1)(c) which provides for "a right to receive ... a copy of the tape recording substantially as audible as the original." The court also found, however, "that the Dictaphone Prolog Guardian system used by the Milwaukee Police Department [for its 911 system] includes both mechanical and computer components and that the machinery runs computer programs within the [Prolog/Guardian system] machinery itself" and, further, "that the material produced as a result of the computer program is the DAT tape." The court found that "the DAT is a separate record in addition to it being an audio tape." The court ultimately concluded, therefore, that Chief Jones had failed to comply with what the court termed the MPA's "subsequently enhanced" request for access to the DAT recording, under WIS. STAT. § 19.36(4) which provides that "the material used as input for a computer program or the material produced as a product of the computer program is subject to the right of examination and copying."⁸ Accordingly, the court then granted the petition for writ of mandamus but stayed the order pending this appeal.

II. DISCUSSION

¶ 10. The City argues that the circuit court erred "by determining that Chief Arthur Jones ... violated the open records law, when the Chief had provided ... [an analog] cassette tape copy of telephone calls captured on the Milwaukee Police Department's 911 recording system, which were [sic] substantially as audible as the original audio recordings." We, like the circuit court, acknowledge that under WIS. STAT. § 19.35(1)(c), Chief Jones, by providing an analog copy, complied with the MPA's original request. We also agree with the circuit court, however, that under WIS. STAT. § 19.36(4), production of the analog copy did not satisfy the MPA's "subsequently enhanced" request for "examination and copying" of the original.

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¶ 11. Where a circuit court, determining a petition for writ of mandamas, has interpreted Wisconsin's open records law, see WIS. STAT. §§ 19.31 through 19.39, and has applied that law to undisputed facts, we review the circuit court's decision de novo. See State ex rel. Schultz v. Wellens, 208 Wis. 2d 574, 576, 561 N.W.2d 775 (Ct. App. 1997)

. We do so ever mindful of the legislature's declaration of policy that "[WIS. STAT. §§] 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business." See WIS. STAT. § 19.31 (emphasis added).

¶ 12. Much of the City's argument concentrates on whether the analog copy it produced was "substantially as audible as the original" and, therefore, in compliance with the MPA's request under WIS. STAT. § 19.35(1)(c). That, however, is not the issue on appeal. It is undisputed that, as the circuit court said, the analog copy was "substantially as...