Democratic Party of Wis. v. Wis. Dep't of Justice

• Decision Date: 28 December 2016
• Docket Number: No. 2014AP2536-FT,2014AP2536-FT
• Citation: 372 Wis.2d 460,888 N.W.2d 584
• Parties: DEMOCRATIC PARTY OF WISCONSIN and Cory Liebmann, Petitioners-Respondents, v. WISCONSIN DEPARTMENT OF JUSTICE and Kevin Potter, Respondents-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

372 Wis.2d 460

888 N.W.2d 584

DEMOCRATIC PARTY OF WISCONSIN and Cory Liebmann, Petitioners-Respondents,

v.WISCONSIN DEPARTMENT OF JUSTICE and Kevin Potter, Respondents-Appellants-Petitioners.

No. 2014AP2536-FT

Supreme Court of Wisconsin.

Oral Argument: September 6, 2016

Opinion Filed: December 28, 2016

For the respondents-appellants-petitioners the cause was argued by Misha Tseytlin, solicitor general with whom on the briefs was Luke N. Berg, deputy solicitor general, and Brad D. Schimel, Attorney General.

For the petitioners-respondents, there was a brief by Michael R. Bauer and Bauer Law LLC., Madison, and oral argument by Michael R. Bauer.

REBECCA GRASSL BRADLEY, J.

¶ 1 This is a review of an unpublished court of appeals' opinion and order,¹ which affirmed the circuit court's order² granting a writ of mandamus compelling the Wisconsin Department of Justice to disclose two video recordings requested by the Democratic Party of Wisconsin under Wisconsin's Public Records Law, Wis. Stat. §§ 19.31 -.39 (2013-14).³ We are asked to decide whether the justification for nondisclosure outweighs Wisconsin's commitment to public access to government records. We conclude that the reasons given by the record custodian for nondisclosure sufficiently demonstrate that the legislative presumption in favor of disclosure has been outweighed by the public harm that would result from disclosure. We reverse the decision of the court of appeals and deny the writ of mandamus.

I. BACKGROUND

¶ 2 In September 2014, Cory Liebmann, Research Director for the Democratic Party of Wisconsin, submitted a public records request to the Wisconsin Department of Justice. The request asked for the release of

[a]ny and all photographs, films, and tape recordings including but not limited to computer tapes and printouts, CDs, DVDs, videotapes and optical discs of any presentation made at any training program by Brad Schimel on the following dates: May 14, 2013; June 8, 2012; November 8, 2012, May 20, 2010; June 17, 2009.

¶ 3 Kevin Potter, the Department of Justice's Record Custodian, responded to the request by letter in October 2014. Potter explained the DOJ had "identified two records responsive to [Liebmann's] request: one video recording of a presentation made by Mr. Schimel on May 14, 2013 on the topic of victim confidentiality and one video recording of a presentation on June 17, 2009 concerning the prosecution of, and common defenses in online child exploitation cases." Both videos were recordings of presentations Attorney Schimel⁴ gave at Wisconsin State Prosecutors Education and Training conferences. The subject matter of the 2013 conference was "Protecting Victims of Crime" and Attorney Schimel's segment addressed "Victim Confidentiality." Attorney Schimel's presentation at the 2009 conference addressed "Prosecution [and] Common Defenses in Online Child Exploitation Cases." These conferences were training sessions for prosecutors and victims' rights advocates, with some law enforcement representatives present. Attendance was limited to those groups and not open to the public or the media. The videos were not publicly available but were recorded and stored so that prosecutors who were not able to attend could view the educational training at a later date.⁵

¶ 4 Potter explained that neither recording would be released because, after applying the public records balancing test, he concluded the public interest in nondisclosure outweighed the general presumption favoring release. Potter gave specific reasons for his conclusion particular to each recording, with some overlap. The 2009 recording would not be released because (1) the presentation contained specific litigation strategies for online child exploitation cases, disclosure of which would impede effective investigation and prosecution of sexual predators; (2) the prosecutor training programs are similar to the contents of a prosecutor's case files, which are exempt from disclosure under State ex rel. Richards v. Foust, 165 Wis.2d 429, 477 N.W.2d 608 (1991) ; (3) the material presented may be privileged attorney-client communication, work product material, or both; and (4) disclosure would adversely impact victims' rights. The reasons for not disclosing the 2013 recording included: (1) the presentation, which was part of a joint training program for prosecutors and crime victim staff, discussed prosecution strategies in a high-profile sexual extortion case involving high school students; and (2) the presentation contained a substantial amount of detail, which, if disclosed, would violate the Wisconsin Constitution's Article I, § 9m provision requiring that crime victims be treated with "fairness, dignity and respect for their privacy." The recording also contained "sufficient details" that "could lead to identification and invasion of privacy for young victims of a very sensitive series of crimes." In addressing release of a redacted version, Potter explained that doing so would render an "end result meaningless to the viewer."

¶ 5 Liebmann and the Democratic Party petitioned the circuit court for a writ of mandamus seeking release of the records, punitive damages, and costs and attorney's fees. The petition asserted the withheld recordings may contain evidence of misconduct by Attorney Schimel: "Upon information and belief, several or all of these tapes may include offensive racial remarks and ethnic slurs, including but not limited to stereotyped accents, as well as sexist remarks, made by Mr. Schimel."

¶ 6 After viewing both recordings in camera, the circuit court concluded neither video showed misconduct by Attorney Schimel, but ordered both recordings disclosed. The circuit court felt the 2009 video presented a close question because it contained strategies and techniques used in investigating and prosecuting sexual predators. Nevertheless, the circuit court reasoned this video should be disclosed because the techniques discussed were "widely known" via "books, magazine articles, [and] TV shows." It did not think the video contained "any real secrets" and compared prosecuting sexual predators to playing hopscotch: when the predators find ways to get around the State's techniques, the State has to catch up and find another way. The circuit court was "certain" the strategies discussed "are taught in law enforcement academies, FBI training academies, et cetera." The circuit court decided that parents needed to see the 2009 video so they could better protect their children from sexual predators. The circuit court specifically acknowledged that the 2009 video did not involve "misconduct on the part of any of the presenters."

¶ 7 With respect to the 2013 video, the circuit court reasoned disclosure was required because (1) the video did not contain specifically identifiable names of victims; (2) the victims' responses to the sex extortion, described by Attorney Schimel in the video, were "perfectly natural responses to the horrific crimes that these children were subject to," and no one should be surprised by the "traumatic effects" these children suffered; (3) this information is important for members of the public to know so they can protect their children; and (4) many of the details discussed in the video were in the original case file and had previously been "splattered all over the Internet." The circuit court did recognize that re-disclosing this information now may "distress" and re-traumatize the victims, but the court did not believe such factors outweighed the public's right to "know the contents of these tapes."

¶ 8 In a summary disposition opinion and order, the court of appeals affirmed the circuit court's decision. Release of the two recordings at issue has been stayed during the appeal process. In addition, the DOJ allowed the attorney representing the Democratic Party to view both the 2009 and 2013 videos, subject to a protective order. After viewing the videos twice, counsel abandoned any claim that the videos contain any misconduct by Attorney Schimel. We accepted the DOJ's petition for review in January 2016.

II. DISCUSSION

A. Standard of Review

¶ 9 Our review here is de novo. See Woznicki v. Erickson, 202 Wis.2d 178, 192, 549 N.W.2d 699 (1996). "Whether harm to the public interest from [disclosure] outweighs the public interest in [disclosure] is a question of law." See Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179 (1979). The legislature has created a presumption of accessibility to public records. See Nichols v. Bennett, 199 Wis.2d 268, 273, 544 N.W.2d 428 (1996). If a custodian denies a public records request, he or she must give specific reasons for denying access, and it is the role of the court to determine whether the reasons are sufficient. See Breier, 89 Wis.2d at 427, 279 N.W.2d 179. Although we may benefit from the circuit court's and court of appeals' analyses, our determination is made independently. See Hempel v. City of Baraboo, 2005 WI 120, ¶ 21, 284 Wis.2d 162, 699 N.W.2d 551. The party seeking nondisclosure has the burden to "show that ‘public interests favoring secrecy outweigh those favoring disclosure.’ " John K. MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014 WI App 49, ¶ 14, 354 Wis.2d 61, 848 N.W.2d 862 (quoted source omitted).

B. Applicable Law

¶ 10 Wisconsin is firmly committed to open and transparent government, as evidenced by the policy expressed by the legislature in our Public Records Law:

[I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.... To that end, ss. 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. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

Wis. Stat. § 19.31....