Nichols v. Bennett

• Decision Date: 22 December 1994
• Docket Number: No. 93-2480,93-2480
• Citation: 526 N.W.2d 831,190 Wis.2d 360
• Parties: Susan C. NICHOLS, Petitioner-Appellant, v. Mark H. BENNETT, Columbia County District Attorney, Respondent-Respondent. d
• Court: Wisconsin Court of Appeals

Page 831

526 N.W.2d 831

190 Wis.2d 360

Susan C. NICHOLS, Petitioner-Appellant, v. Mark H. BENNETT, Columbia County District Attorney,

Respondent-Respondent. ^d

No. 93-2480.

Court of Appeals of Wisconsin.

Submitted on Briefs June 8, 1994.

Opinion Released Dec. 22, 1994.

Opinion Filed Dec. 22, 1994.

For the petitioner-appellant the cause was submitted on the brief of Norma Briggs of Briggs Law Office of Madison.

For the respondent-respondent the cause was submitted on the brief of Mark H. Bennett, Columbia County Dist. Atty., of Portage.

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

GARTZKE, Presiding Judge.

Susan C. Nichols appeals from an order denying her open-records petition for mandamus, § 19.37(1)(a), STATS. The issue is whether the documents she requested are exempted from disclosure by State ex rel. Richards v. Foust, 165 Wis.2d 429, 477 N.W.2d 608 (1991). We conclude they are not and reverse.

In August and September 1992, Nichols wrote to Mark H. Bennett, Columbia County District Attorney, requesting copies of open-records-request letters his office had received since January 1990, and his responses to them. She did not request a copy of any record that may have been provided to a requester. Bennett's final response to Nichols stated in part:

[T]o my knowledge since 1990 my office has received [five] letters or motions requesting records pursuant to the Wisconsin Public Record Law. (This excludes your record requests.)

In two instances, requests were made by defense attorneys for the personnel records of police officers in pending prosecution cases. I am not the custodian of the personnel records for any law enforcement officers. The requests were handled by the law enforcement agencies involved. In one the request was denied pursuant to a Wisconsin Supreme Court decision. In the other request, the defense attorney withdrew his request.

In October, 1991, I received a written request from a Mr. Wilke for a copy of his closed prosecution case file of a criminal action I filed against him. I complied with his request....

It is my position that you are not entitled to letters or any documents contained in the above three closed prosecutorial files or any other closed prosecution files in my office.

The basis for the denial is the Wisconsin Supreme Court case of State ex rel. Richards v. Foust ..., which holds that prosecutorial files are exempt from public access....

Because of the above Wisconsin Supreme Court case, I am not obligated to respond to written requests for access to a closed prosecution file.

The letter went on to state that Nichols was entitled to receive two other requests Bennett's office had received because they were not part of prosecutorial files and did not contain investigative data, and the public interest in nondisclosure did not outweigh the right to inspect.

Nichols filed a petition for a writ of mandamus ordering Bennett to allow inspection of the other three requests. The records were not inspected in camera by the circuit court and are not part of the record before us. The circuit court denied the petition on the ground that the records "are not merely stored in closed prosecution files. On the contrary, those records are part of closed prosecution files and as such, are exempted from disclosure under Foust." Nichols appeals.

In Foust, the petitioner made an open-records request for the prosecutor's closed file on the petitioner's criminal prosecution. Foust, 165 Wis.2d at 431, 477 N.W.2d at 608. The supreme court held that "the common law provides an exception which protects the district attorney's files from being open to public inspection." Id. at 433-34, 477 N.W.2d at 610.

Nichols argues that placement of a record in a "prosecutorial file" does not, by itself, exempt the record from disclosure. If it did, district attorneys could eviscerate the law simply by placing any record they wished to keep from public inspection in such a file. She argues that the records she requested do not pertain to the investigation or prosecution of crime, but to the management of the district attorney's office. Bennett responds that the records in question "relate directly to the prosecution" of criminal cases, and were "for all practical purposes--if not legal purposes--discovery motions."

We agree with Nichols's argument that a record is not automatically exempt merely because a custodian stores it in a closed prosecutorial file. The Foust decision must be limited to those items that actually pertain to prosecution. Whether an item actually pertains to a prosecution can be determined by looking at the purposes underlying Foust.

Foust relied on several cases to show the existence of a common law exception to the general rule of public disclosure. Foust, 165 Wis.2d at 434-36, 477 N.W.2d at 610-11. All of those cases involved persons who sought to obtain information that had been discovered in the course of investigations such as John Doe proceedings, criminal investigations and fire marshall investigations....