Newspapers, Inc. v. Breier

• Decision Date: 30 May 1979
• Docket Number: No. 76-724,76-724
• Citation: 279 N.W.2d 179,89 Wis.2d 417
• Parties: , 5 Media L. Rep. 1524 NEWSPAPERS, INC., publisher of The Milwaukee Journal and Thomas J. Hagerty, Petitioners-Appellants, v. Harold A. BREIER, Chief of Police, City of Milwaukee, State of Wisconsin, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 179

279 N.W.2d 179

89 Wis.2d 417, 5 Media L. Rep. 1524

NEWSPAPERS, INC., publisher of The Milwaukee Journal and Thomas J. Hagerty, Petitioners-Appellants, v. Harold A. BREIER, Chief of Police, City of Milwaukee, State

of Wisconsin, Defendant-Respondent.

No. 76-724.

Supreme Court of Wisconsin.

Argued March 26, 1979.

Decided May 30, 1979.

Robert A. Christensen (argued) and Foley & Lardner, Milwaukee, on brief, for petitioners-appellants.

Thomas E. Hayes, Asst. City Atty. (argued), and James B. Brennan, City Atty., on brief, for defendant-respondent.

HEFFERNAN, Justice.

This action arose out of a request by Joseph W. Shoquist, managing editor of The Milwaukee Journal, for regular access to a number of police records. Harold A. Breier, Chief of Police of the City of Milwaukee, responded to Shoquist's request by granting access to some records and refusing access to others. In the Chief's letter dated July 3, 1974, he stated that the press would be provided, upon demand, the name, age and date of birth of all persons taken into custody, the time the suspect was taken into custody, and the names of the arresting officers. He refused to permit the press access to the records showing the charge on which particular persons were arrested and refused to permit access to the names of informants. Although the newspaper has not agreed to the Chief's intention to withhold information in respect to informants or complainants, the newspaper has never sought to get that information. In the instant case it only asserts the right under sec. 19.21(1) and (2), Stats., to immediate access to the records which show on a chronological and daily basis the charges upon which persons were arrested.

The Chief's reasons for refusing to disclose to the press and to the public the charge upon which a person was arrested were set forth in the letter to Shoquist. The basic stated reason for nondisclosure, possible personal and economic harm to individuals arrested, has remained the rationale for the Chief's position throughout these proceedings. In the letter the Chief stated:

"If the charge to be sought against a person in custody is disclosed, I am aware of possible economic and personal harm to that individual which would result if the charge would become known to employers, credit agencies or even neighbors. Notwithstanding the fact that the charge may subsequently be modified by the District Attorney or that the individual may be subsequently acquitted, the mere disclosure of the basis for the arrest could work as a serious impediment and as the basis for discrimination against the individual in his search for employment or licenses.

"I am informed by counsel that recent court decisions require me to take the possible consequences to the individual in custody into account in determining whether to disclose the contents of the charge placed against such individual, and that failure to do so may result in a situation where the Department's ability to maintain arrest records in the first place is severely jeopardized. I know that effective law enforcement requires that the Department maintain a record of the charge under which the subject is taken into custody even though the District Attorney may issue a different charge, and therefore I believe it is my responsibility as the public official responsible for the enforcement of the laws and ordinances of the city and the efficiency of the Department to take all necessary steps to protect the integrity of this information as contained in Department records."

Following the refusal of the Chief of Police to permit the newspaper to inspect the records which would show the charge upon arrest, the newspaper petitioned for a writ of mandamus to compel the disclosure of this information.

The circuit court in its decision concluded that the Chief had made a blanket refusal to permit inspection of records that would show the arrest charge. The court said that this response was unacceptable and stated that the Chief of Police must set forth specific reasons in each case for not disclosing the offense charged. In an addendum to the decision, the court announced that the Chief must, within forty-eight hours after an arrest, make available to the general public and the press the offense for which a person was arrested or provide specific reasons for nondisclosure. The trial judge declined to issue a writ of mandamus and instead treated the petition as requesting declaratory relief. A declaratory judgment was issued, which declared the rights of the parties. The relevant portion of the trial court's judgment provided:

"That within forty-eight hours after the arrest of any person, the plaintiffs are entitled to inspect and copy the records in the possession of the City of Milwaukee Police Department which indicate the offense for which a person was initially arrested unless the Chief of Police of the City of Milwaukee or his designate refuses to produce the aforementioned records And states with particularity the specific reasons for the refusal."

Neither party was satisfied with the remedy. The newspaper appealed, reasserting its claim for mandamus directing that the Chief provide immediate access to the arrest records. The Chief of Police took a motion to review, asserting that he had the absolute right to withhold the information and, as a matter of law, was not obligated to reveal the initial charge. The appeal was taken on an agreed statement of facts. In that stipulation Chief Breier acknowledged his possession of the records sought and that he was the custodian of them. He also acknowledged that the information sought was contained within "public records."

The only issue on appeal, according to the parties' statement of the case, is whether the Chief of Police is required under sec. 19.21, Stats., to make records available for routine inspection so the press and members of the public can ascertain the charge for which a person was arrested. We conclude that the answer to this question under the law must be "yes." We reverse the judgment of the trial court and remand with directions that mandamus be granted directing the Chief of Police to permit the petitioners and the public generally to routinely and contemporaneously inspect the records which show the charges upon which the arrests were initially made.

The factual posture of the case should be further clarified. In this action, the petitioners are seeking only to inspect arrest records as they are placed on the daily "blotter," a document which is used to record information about individuals when they are taken into police custody. Although the record is referred to by the parties as the "blotter," the title which appears upon the form used is "Daily Arrest List."

Although we hold that the offense charged upon arrest must be revealed and the other information which the Chief has volunteered to reveal shall, as a matter of law, be open for inspection, we do not reach the question of whether the Chief is required to make available the name and address of complainants. Because the Chief's right to withhold the name of the complainant or informant is not raised in this case, the right of the Chief to block out or withhold that information is not decided. Nor do we decide whether the Chief of Police is required to make public the "rap sheet." The "rap sheet" must be distinguished from the "Daily Arrest List" or police "blotter." The police "blotter" is an approximately chronological listing of arrests, recorded at the time of booking at the police station. A "rap sheet" is a record which the police department keeps on each individual with an arrest record. "Rap sheets" are filed in alphabetical order and purport to show on a single document all arrests and police contacts of an individual. The public-policy reasons for the disclosure or nondisclosure of the "rap sheets" may differ markedly from the reasons which impel us to conclude that the arrest records showing the charges must be disclosed. Because no request has been made for access to these records, we do not in this case decide whether "rap sheets" must be available to the press and public.

The Chief takes the position that he need never disclose the initial charge. He states, however, that as a matter of policy the arrest charge will be available to the public only if the person arrested is formally charged by the prosecutor with an offense of the same or greater magnitude than that for which the original arrest was made. If no formal charges are brought or if a reduced charge is finally brought by the prosecutor, the Chief asserts that he need never, and will never, reveal the charge on the original arrest.

The right of the public and the press to inspect the records showing the original charges upon arrest must be determined under the Wisconsin Public Records Statute, secs. 19.21(1) and (2), Stats., and the case law which has been evolved by this court interpreting and implementing that statute. The statute provides:

"Sec. 19.21 Custody and delivery of official property and records. (1) Each and every officer of the state, or of any county, town, city, village, school district, or other municipality or district, is the legal custodian of and shall safely keep and preserve all property and things received from his predecessor or other persons and required by law to be filed, deposited, or kept in his office, or which are in the lawful possession or control of himself or his deputies, or to the possession or control of which he or they may be lawfully entitled, as such officers.

"(2) Except as expressly provided otherwise, any person may with proper care, during office hours and subject to such orders or regulations as the custodian thereof prescribes, examine or copy any of the property or things mentioned in sub. (1). Any person may, at his own expense and under such reasonable regulations as the custodian prescribes, copy or duplicate any materials, including...