Fox v. Bock

• Decision Date: 27 April 1989
• Docket Number: No. 87-1853,87-1853
• Citation: Fox v. Bock, 438 N.W.2d 589, 149 Wis.2d 403 (Wis. 1989)
• Parties: , 17 Media L. Rep. 1375 Peter D. FOX, Plaintiff-Appellant, v. William F. BOCK, Racine County Corporation Counsel, Defendant-Respondent. *
• Court: Wisconsin Supreme Court

Page 589

438 N.W.2d 589

149 Wis.2d 403, 17 Media L. Rep. 1375

Peter D. FOX, Plaintiff-Appellant, v. William F. BOCK, Racine County Corporation Counsel Defendant-Respondent. ^* No. 87-1853.

Supreme Court of Wisconsin.

Argued March 28, 1989.

Decided April 27, 1989.

Charles H. Constantine, argued and Constantine, Christensen,Krohn & Kerscher, S.C., Racine, on brief, for plaintiff-appellant.

Kenneth F. Hostak, argued, Emily S. Mueller, and Thompson & Coates, Ltd., Racine, on brief, for defendant-respondent.

Linda M. Clifford and LaFollette & Sinykin, Madison, amicus curiae, for Wisconsin Freedom of Information Council and the Racine Journal Times.

John K. O'Connell, Madison, amicus curiae for Wisconsin Counties Ass'n.

STEINMETZ, Justice.

This appeal was certified to this court under the provisions of sec. 809.61, Stats. We accepted certification.

The issue in this case is whether a study conducted by the Institute for Liability Management, which was commissioned by and prepared for the Racine County Corporation Counsel's office, is a record as that term is defined in sec. 19.32(2), Stats. ¹ The trial court found it was not a record. We hold it was a record.

William F. Bock has been the Racine County Corporation Counsel since 1976. The Deputy Corporation Counsel was Susan Torok. In late 1985 and early 1986, Bock became concerned about the increasing number of civil claims which were being brought against Racine county and ordered a study of the problem. His concerns stemmed in part from the fact that Racine county was self-insured. After making his concerns known to Leonard Ziolkowski, then the Racine County Executive, sufficient funds were set aside in the Racine county budget for the 1986 fiscal year to allow Bock to hire a consultant to conduct a risk management study of certain Racine county departments.

The corporation counsel contacted various consulting firms requesting bids to conduct the study. Early in 1986 a contract was entered into with the Institute for Liability Management of Vienna, Virginia (the Institute) to conduct a study at a cost to Racine county of $24,000. Prior to the study being prepared by the Institute and prior to the Institute making a proposal, members of the corporation counsel's office had conversations with representatives of the Institute about the Wisconsin Public Records Law and discussed their concerns about possible public access to any report prepared by the Institute.

Members of the Institute came to Racine county to gather information in early 1987. Members of the Racine County Sheriff's Department, Personnel Department, Corporation Counsel's office and District Attorney's office were interviewed. The study was completed in March or April of 1987. In June of 1987 the corporation counsel received two written copies of the study. The word "draft" was stamped on each written page of the study. Although copies of the study were not released by the corporation counsel, at least two members of the sheriff's department were allowed to review the entire document in the corporation counsel's offices. Other members of the sheriff's command staff reviewed portions of the document dealing with their respective areas of responsibility.

In addition to preparing the written report, the Institute also sent a representative to Racine county to conduct briefing and training seminars primarily for members of the sheriff's department. Two separate seminars were given to county personnel. One was a general educational seminar, and the other was a briefing seminar dealing with specific aspects of the report and was directed specifically to members of the sheriff's department command staff. The study and seminars included recommendations regarding changes in certain policies and procedures of the county and the sheriff's department.

The Institute's representative spent four days in Racine conducting these seminars and meeting with various Racine county employees. On the first day of his visit, the deputy corporation counsel, Torok, told the representative certain changes had to be made in the report. The corrections included typographical errors, an obvious error in the report dealing with the absence of an exercise area in the jail facility and certain other errors, the nature of which have not been disclosed.

At the same time that the Institute's representative was informed that certain changes had to be made, he was also informed that the existence of the study had "leaked out," and that someone had asked Dennis Kornwolf, then County Executive of Racine, for a copy of the report. The representative responded that he would take the two copies of the report back to Washington, and he would wait to hear from the corporation counsel before taking any action. The Institute still has the two copies of the report and, to the best of knowledge of Bock and Torok, has taken no steps to make any changes in the form or content of the report since the copies were returned to the Institute by the corporation counsel.

Bock testified he had no intention of requesting the study from the Institute unless he could be assured that the report, in whatever form it took, would not be subject to inspection by the public.

After the report had been returned to the Institute, the Racine county sheriff's department began implementing certain changes in procedures and policies pursuant to suggestions contained in the report and discussions during the in-service seminars conducted by the Institute's representative. The corporation counsel assisted briefly in implementing certain of these changes. Torok expressed satisfaction with the performance of the Institute and the $24,000 has been paid in full to the Institute for the study and seminars.

On July 8, 1987, Peter D. Fox, editor of the Journal Times, a Racine county newspaper, served a written request on Bock for a copy of the study prepared by the Institute. In a letter dated July 9, 1987, Bock denied Fox's request stating various reasons for the denial. For purposes of this appeal it is sufficient to reiterate two of the reasons for the denial of the request: Bock did not have the report in his possession, and further, in his opinion, the report was not a "record" as that term is defined in sec. 19.32, Stats.

Pursuant to sec. 19.37(1), Stats., Fox then filed and served upon Bock a petition for writ of mandamus. Later Fox served upon Bock a motion and notice of motion to produce the Institute's study. One of the affirmative defenses in the return to the petition for writ of mandamus was that the Institute's study was prepared in draft form and did not constitute a record under sec. 19.32(2).

A hearing on the petition filed by Fox was held before the Honorable Stephen A. Simanek, Racine county circuit court judge. The court, after hearing the testimony of Bock and Torok and hearing arguments of counsel, held that the document requested from the corporation counsel was a "draft" and not a "record" under sec. 19.32(2), Stats., and therefore, not subject to inspection by Fox. Fox appealed that ruling to the court of appeals.

Whether a statute applies to a given set of facts presents a question of law. Such questions are decided independent of and without deference to the trial court's decision. Bucyrus-Erie Co. v. ILHR Department, 90 Wis.2d 408, 280 N.W.2d 142 (1979).

Policy underlying the public records law is set forth in sec. 19.31, Stats.:

In recognition of the fact that a representative government is dependent upon an informed electorate, it 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 employes who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employes whose responsibility it is to provide such information. 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.

To that end, sec. 19.35(1)(a) provides:

Access to records; fees. (1) RIGHT TO INSPECTION. (a) 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. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.

The trial court dismissed the petition after concluding that this document was only a draft and therefore not subject to disclosure. The trial court's ruling on this threshold question made it unnecessary for it to apply the remaining portion of sec. 19.35(1), Stats., which may restrict public access. We only discuss the threshold question of whether this document was a "draft" or a "record" and direct the trial court to apply the latter portion of sec. 19.35(1)(a) on remand. See, e.g., Newspapers, Inc. v. Breier, 89 Wis.2d 417, 279 N.W.2d 179 (1979); Beckon v. Emery, 36 Wis.2d 510, 516-19, 153 N.W.2d 501 (1967). State ex rel. Youmans v. Owens, 32 Wis.2d 11, 144 N.W.2d 793 (1966); State ex rel. Youmans v. Owens, 28 Wis.2d 672, 681-82, 139 N.W.2d 241, 137 N.W.2d 470 (1965).

The term "record" is broadly defined in sec. 19.32(2), Stats. as "any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or...