Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, CHRYSLER-PLYMOUT

• Decision Date: 23 May 1991
• Docket Number: INC,No. 89-0985,CHRYSLER-PLYMOUT,89-0985
• Citation: 469 N.W.2d 638,162 Wis.2d 142
• Parties: MAYFAIR, Plaintiff-Respondent, v. Nick BALDAROTTA, Legal Custodian of Records of the Wisconsin Department of Revenue and Wisconsin Department of Revenue, Defendants-Appellants-Petitioners.
• Court: Wisconsin Supreme Court

Page 638

469 N.W.2d 638

162 Wis.2d 142

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-Petitioners.

No. 89-0985.

Supreme Court of Wisconsin.

Argued March 26, 1991.

Decided May 23, 1991.

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

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

BABLITCH, Justice.

The issue presented involves Wisconsin's Open Records Law. The question is whether the Department of Revenue must, in essence, reveal the name of an informant who was promised anonymity by field auditors for the Department of Revenue (Department) in exchange for information regarding certain actions by the informant's employer, Mayfair Chrysler-Plymouth, Inc. (Mayfair). The Department seeks review of a court of appeals' decision which affirmed the circuit court's mandamus judgment compelling the Department to permit Mayfair to inspect certain records in the Department's custody relating to the Department's audit of Mayfair's tax returns. The Department denied access to portions of the records on the ground that the records would reveal the name of a confidential informant who had been given a pledge of confidentiality by the Department in exchange for the information. The court of appeals held that the Department's stated reason for the denial was insufficient to overcome the general presumption of access to public records in Wisconsin. We hold that the Department's denial was legally specific. In addition, we hold that the denial was legally sufficient because the harm to the public interest from the disclosure of portions of records which would reveal the identity of a confidential informant who received a pledge of confidentiality outweighs the public interest in disclosing these records. Accordingly, we reverse the decision of the court of appeals.

On January 13, 1988, the plaintiff, Mayfair, submitted a written request to the Department pursuant to sec. 19.35, Stats., ¹ to inspect and copy certain records in the Department's possession. These records, which had been provided by a former employee of Mayfair, consisted of checks and business records which related to alleged accounting procedures and practices of Mayfair. The Department denied Mayfair's request on the ground that the information was not a "record" as defined in sec. 19.32(2). In response Mayfair initiated this action for mandamus relief, seeking release of the records pursuant to sec. 19.37(1)(a). ²

The circuit court held a telephone conference between the parties on June 15, 1988, in which the Department agreed to provide Mayfair redacted copies of documents it held relating to Mayfair's business practices. These copies were edited to delete any references which would suggest the identity of the ex-employee informant who provided the information to the Department. This sanitization erased all numeric figures from the documents creating, in effect blank forms. At this time, the Department also provided the circuit court with unredacted copies of the documents for in camera review.

Mayfair then sent a supplemental request to the Department seeking all records, including check stubs, cancelled checks and timecards, and other business records which were received from any source other than Mayfair. The Department denied this request, stating that it could provide no additional information because it had given a "pledge of confidentiality ... to the informant, [and] the department must continue to deny access to portions of records which may identify the informant." ³

The Department also identified Steven Koritzinsky and Brian Ertmer as the field auditors from the Department who had had contact with the informant. Mayfair deposed Koritzinsky and Ertmer regarding those contacts. At his deposition, Koritzinsky recalled the Department's initial contact with the informant:

I was working at a taxpayer's office in a room, and he [the informant] walked into the room and first of all asked me if I was a field auditor with the Wisconsin Department of Revenue, and I told him that yes, I was. And he asked me or he told me he had some information, but before he said anything, he wanted to know if it would be given in confidence and if I had the power to give him a pledge of confidentiality.

Koritzinsky also testified as follows:

Q: Please continue with what happened after he asked you whether you had the authority to give a pledge of confidentiality.

A: I told him that I would give a pledge of confidentiality that would bind the department, and I said that, you know, we discussed, you know, preliminary discussions. He was saying, well, what does this entail, you know, giving me the impression that if I hadn't given the pledge of confidentiality, he would not have given me any information.

Q: Tell me as best you recall the exact words that he used when he first came into the room and after he asked if you were, in fact, a field auditor for the Wisconsin Department of Revenue?

A: I can tell you that it went something like this, that he had some information and that he would not disclose it unless we gave a pledge that we would not disclose his name in any proceedings.

* * * * * *

Q: Tell me again what he asked for by way of a pledge of confidentiality?

A: Well, he did not want his name revealed in any way, shape, or form.

Regarding the scope of the pledge, Koritzinsky told the informant that the Department would not disclose who he was or provide documents that would give away his identity.

Ertmer met with the informant after he was assigned the audit of Mayfair. Ertmer told the informant that the information he provided would be kept confidential. The informant was never asked by Ertmer if he would provide the documents without a pledge of confidentiality. Ertmer acknowledged at the deposition that the documents provided by the informant could have been obtained by subpoena of Mayfair's records.

Mayfair then moved for summary judgment seeking release of the records on the ground that the Department's reasons for denying the request were not legally sufficient. The circuit court granted Mayfair's request for summary judgment and writ of mandamus, and awarded damages of $100.00, statutory costs, and reasonable attorney's fees.

The court of appeals affirmed, concluding that "the reasons asserted by the department were insufficient as a matter of law to support the denial of access to the records...." Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 154 Wis.2d 793, 795, 453 N.W.2d 922 (1990). The court emphasized that the Department had violated Mayfair's " 'absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary.' " Id. at 802, 453 N.W.2d 922 (quoting Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179 (1979)). Judge Gartzke dissented, arguing that because of the Department's law enforcement functions, the Department must be able to protect confidential informers who rely on its pledge of confidentiality.

This case presents two issues. The first issue is whether the Department's denial of access to portions of its records, on the ground that the information would reveal the identity of a confidential informant who provided information to the Department under a pledge of confidentiality, satisfies the standards of legal specificity required by Wisconsin's Open Records Law, secs. 19.31-.39, Stats., and our prior decisions. The second issue, which arises only if the Department's denial was legally specific, is whether the existence of the Department's pledge of confidentiality to the informant was a legally sufficient reason for denying access to records that overcomes the public policy presumption in favor of access to public records.

Both of these issues require us to apply Wisconsin's Open Records Law and prior substantive common law principles construing the right to inspect public records to the facts of this case. "The duty of the custodian is to specify reasons for nondisclosure and the court's role is to decide whether the reasons asserted are sufficient." Breier, 89 Wis.2d at 427, 279 N.W.2d 179. "Whether harm to the public interest from inspection outweighs the public interest in inspection is a question of law." Id. This court reviews questions of law independently, without deference to the trial court.

We hold that by stating that the requested records would reveal the identity of a confidential informant who had been given a pledge of confidentiality, the Department stated a legally specific reason for denying Mayfair's record request. The stated reason of informant confidentiality implies obvious and well-known public policy interests in effective law enforcement that carry sufficient meaning and import for the requester to understand the basis for the denial. We also hold that the denial was legally sufficient because the harm to the public interest from disclosure of portions of records which would reveal an informant's identity outweighs the public interest in disclosing these records.

The Wisconsin Open Records Law reflects the common law principles favoring access to public records that have long been recognized in Wisconsin. The strong public policy favoring access is stated in sec. 19.31, Stats.:

Declaration of policy. 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...