Mayfair Chrysler-Plymouth, Inc. v. Baldarotta

• Decision Date: 22 February 1990
• Docket Number: No. 89-0985,INC,CHRYSLER-PLYMOUT,89-0985
• Citation: 154 Wis.2d 793,453 N.W.2d 922
• Parties: MAYFAIR, Plaintiff-Respondent, v. Nick BALDAROTTA, Legal Custodian of Records of the Wisconsin Department of Revenue, and Wisconsin Department of Revenue, Defendants-Appellants. d ]
• Court: Wisconsin Court of Appeals

Page 922

453 N.W.2d 922

154 Wis.2d 793

MAYFAIR CHRYSLER-PLYMOUTH, INC., Plaintiff-Respondent, v. Nick BALDAROTTA, Legal Custodian of Records of the Wisconsin

Department of Revenue, and Wisconsin Department of

Revenue, Defendants-Appellants.

^d]

No. 89-0985.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 10, 1989.

Opinion Released Feb. 22, 1990.

Opinion Filed Feb. 22, 1990.

Donald J. Hanaway, Atty. Gen., with Robert W. Larsen, Asst. Atty. Gen., on the briefs, Madison, for defendants-appellants.

Jeffrey A. Kremers and Diane Slomowitz of Fox, Carpenter, O'Neill & Shannon, S.C., on the briefs, Milwaukee, for plaintiff-respondent.

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

EICH, Chief Judge.

This is a mandamus action commenced under the Wisconsin Open Records Law, secs. 19.31-19.39, Stats., challenging the Department of Revenue's denial of a request for access to certain records on grounds that it had promised anonymity to an "informant" and feared that the sought-after records might lead to disclosure of the informant's identity. We conclude that the reasons asserted by the department were insufficient as a matter of law to support the denial of access to the records, and we affirm the summary judgment directing disclosure of the information.

Mayfair, aware of the department's interest in its financial affairs, wrote to the agency asking permission to inspect and copy "a letter from a former employee" and certain checks and other records accompanying the employee's letter. The department denied the request on grounds that the requested information was "not a record as the term is defined in sec. 19.32(2)," Stats., ¹ and Mayfair commenced this mandamus action.

The department then provided Mayfair with redacted copies of various records in its possession. The materials were edited to delete any and all references the department felt might lead to discovery of the informant's identity. As a result, the records received by Mayfair were edited to the point that, in the trial court's words, they "had virtually no specific information left on them." Mayfair then submitted a revised or supplemental request to the department asking for all records including check stubs, cancelled checks, time cards, and other business records which the department received from any source other than Mayfair. The department responded that it could provide no additional information because it had given a "pledge of confidentiality ... to [an] informant, [and] must continue to deny access to portions of records which may identify the informant."

Mayfair moved for summary judgment ² seeking release of the records on grounds that the department's reasons for denial of its request for the records were legally insufficient. As indicated, the trial court granted that motion and the department appealed.

Summary judgment "methodology" is well known and need not be discussed, or even cited, here. Suffice it to say that applying that familiar step-by-step analysis to the parties' pleadings and affidavits satisfies us that the legal issue is properly raised and appropriate for decision on Mayfair's motion. And, as in all cases where the question is one of law, our review is de novo; we owe no deference to the trial court's decision.

In sec. 19.31, Stats., the legislature made the following declaration of public policy:

[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.... [P]roviding persons with such information is declared to be an essential function of ... government.... To that end, ss. 19.32 to 19.37 [the "Open Records Law"] 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.

When a written request for access to a record is denied by the agency, sec. 19.35(4)(b), Stats., requires that the denial be in writing and state "the reasons for denying" the request. In addition, in making the decision to grant or deny, the records custodian "must weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection." In Matter of Estates of Zimmer, 151 Wis.2d 122, 132, 442 N.W.2d 578, 582-83 (Ct.App.1989), quoting Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179, 184 (1979) (emphasis added).

If the custodian denies access, he or she "must state specific public-policy reasons for the refusal ... [and] must satisfy the court that the public-policy presumption in favor of disclosure is outweighed by even more important public-policy considerations." In short, "there is an absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary. Estates of Zimmer, 151 Wis.2d at 132, 442 N.W.2d at 583 (citations omitted; emphasis in original).

Because the party seeking to seal a public record must rebut the "strong presumption" of disclosure, C.L. v. Edson, 140 Wis.2d 168, 182, 409 N.W.2d 417, 422 (Ct.App.1987), some exposition of the evaluative factors resulting in the decision to deny must, of necessity, be included in the written denial. That conclusion is inescapable, for one of the primary reasons for requiring the custodian to "state specific policy reasons for the refusal" is to "provide a basis for review by a court." Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis.2d 480, 483, 373 N.W.2d 459, 461 (Ct.App.1985). "It is not the ... court's role to hypothesize reasons or to consider reasons for not allowing inspection which were not asserted by the custodian." Newspapers, Inc. v. Breier, 89 Wis.2d at 427, 279 N.W.2d at 184.

To this end, we have held that "[w]hen inspection is requested, the record's custodian must weigh [the public interest in nondisclosure against the public's right of inspection], remaining mindful that exceptions to the policy of disclosure are rare," and also must include in the denial "a statement of the specific public policy reason for the refusal." Journal/Sentinel, Inc. v. Aagerup, 145 Wis.2d 818, 822, 429 N.W.2d 772, 774 (Ct.App.1988). If the custodian's reasons for denial are insufficient, "a writ of mandamus must be issued, compelling disclosure of the requested public record." Oshkosh, 125 Wis.2d at 483, 373 N.W.2d at 461-62.

A detailed public policy analysis is not required, however. In Journal/Sentinel, the press sought access to an autopsy report which was part of the investigation and trial preparation in a criminal case. While the custodian's denial was not reported verbatim in the opinion, we described it as "first point[ing] to a specific statutory exception to the Open Meetings Law ... [relating to] strategies to deal with several aspects of law enforcement" and "next point[ing] to the particular protected interest [the custodian] believes is implicated in this case: crime detection." Id., 145 Wis.2d at 822-23, 429 N.W.2d at 774. We found the statement sufficiently specific.

On the other hand, in Beckon v. Emery, 36 Wis.2d 510, 517-18, 153 N.W.2d 501, 504 (1967), the supreme court held that recitation by the custodian's counsel that the records were "confidential," and that it would be "contrary to the public interest" to release them, was simply a legal conclusion and thus an insufficient statement of reasons for denying access.

While the department's statement in this case is a modest improvement over the statement in Beckon, we believe it is equally inadequate for it is equally general. It gives no indication that the department struck any balance between the public interest in disclosure and the public interest in nondisclosure, as required by the cases. It does not even hint at why the public interest would be better served by secrecy than by openness, nor does it suggest why the "pledge" of confidentiality was necessary in the first instance. We agree with the trial court that "[a]llowing a custodian to hand out pledges of confidentiality freely, with no explanation or showing of necessity, is contrary to the legislative policy objectives of the Open Records Law." The redacted records supplied by the department in this case illustrate the trial court's point: they are so saturated with "blackouts" that they are little more than blank pages.

We do not suggest that the custodian's reasons for denial must be lengthy or must set forth his or her reasons or thought processes in excruciating, or even significant, detail. However, the custodian must provide reasons that are both sufficient and sufficiently explained so as to allow a reviewing court to exercise independent judgment in assessing those reasons under appropriate legal standards. ³ In this case, the sole reason offered by the department for its denial of access to the records was that it had given a pledge of confidentiality to an anonymous informant and feared loss of that anonymity should the uncensored records be released. We see that as little different than the statements rejected by the supreme court in Beckon (that the information was "confidential" and that its release would be "contrary to the public interest") and in State ex rel. Youmans v. Owens, 28 Wis.2d 672, 683, 137 N.W.2d 470, 475 (1965) (that release "would not be in the public interest at this time, but on the contrary would be harmful to the public interest").

The department, arguing that its statement was adequate, places great reliance on Rathie v. N.E. Wis. Tech....