Portage Daily Register v. Columbia County

• Decision Date: 31 January 2008
• Docket Number: No. 2007AP323.,2007AP323.
• Citation: 746 N.W.2d 525,2008 WI App 30
• Parties: PORTAGE DAILY REGISTER and George Althoff, Plaintiffs-Appellants, v. COLUMBIA COUNTY SHERIFF'S DEPARTMENT and Steven R. Rowe, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

746 N.W.2d 525

2008 WI App 30

PORTAGE DAILY REGISTER and George Althoff, Plaintiffs-Appellants, v. COLUMBIA COUNTY SHERIFF'S DEPARTMENT and Steven R. Rowe, Defendants-Respondents.

No. 2007AP323.

Court of Appeals of Wisconsin.

Submitted on Briefs September 14, 2007.

Opinion Filed January 31, 2008.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert J. Dreps and Jennifer L. Peterson of Godfrey & Kahn, S.C. of Madison.

On behalf of the defendants-respondents, the cause was submitted on the brief of Daniel G. Jardine and Jessica M. Baumgartner of Jardine Law Office LLC of DeForest.

Before HIGGINBOTHAM, P.J., VERGERONT and BRIDGE, JJ.

¶ 1 BRIDGE, J

The Portage Daily Register appeals an order denying its writ of mandamus which sought to compel the Columbia County Sheriff's Department to provide it with a copy of an investigative report pursuant to WIS. STAT. § 19.37 (2005-06).¹ The Sheriff's Department denied the request on the ground that the report, a copy of which the Sheriff's Department retained, had been forwarded to the district attorney's office and was part of an open investigation. The circuit court determined that this reason for denying the report was sufficiently specific, and that the Sheriff's Department properly withheld the report under the public records balancing test. We conclude that the Sheriff's Department did not state a legally specific policy reason for its denial. Accordingly, we reverse.

BACKGROUND

¶ 2 In the months preceding the fall 2006 Republican primary election for Columbia County Sheriff, fliers attacking one of the candidates appeared in mailboxes throughout the county. The fliers were authored by an anonymous and unregistered group calling itself "Concerned Citizens of Columbia County." The fliers were brought to the attention of the Columbia County District Attorney, who told the local newspaper, the Portage Daily Register, that she had "instructed the . . . Sheriff's Department to forward one to her office with a report for investigation into possible illegal campaigning."

¶ 3 On July 26, 2006, the Register made a written request under the Wisconsin public records law for a document it described as a "Sheriff's Department report No. 06-24428 dated on or about June 28, 2006." The Sheriff's Department denied the request in a letter dated August 9, 2006.² The letter stated the following basis for denial: "The matter has been referred to the District Attorney's Office for review to determine if, in fact, it is criminal in nature or not and/or whether additional investigation is required. The matter, therefore, remains an open and ongoing investigation and cannot be released at this time." The letter further asserted that upon termination of the investigation, "the report can be reviewed for release under the WI Open Records Law."

¶ 4 The Columbia County District Attorney determined that her office could not review the matter due to a potential conflict, and ultimately the Dodge County District Attorney agreed to act as special prosecutor in the matter. On September 1, 2006, the Dodge County District Attorney released to the public a memorandum he had sent to the Columbia County Sheriff indicating that after reviewing the investigative reports prepared by the Columbia County Sheriff, he had decided to decline prosecution. In addition, the district attorney released to the public "copies of the law enforcement reports generated by this investigation," including report number 06-24428.

¶ 5 The report was an incident report consisting of eight pages, with just over one page of narrative. In it, the investigating officer described the investigation he completed on June 28, 2006, consisting of an interview with the complainant, his own observations about the flier, his contacts with the district attorney's office and the Shopper Stopper,³ and an interview with the complainant's mother, who had also received a flier. At the end of the report, the investigating officer stated:

DISPOSITION

This report will be forwarded to the Columbia County District Attorney's Office for their review. I have nothing more at this time.

End of report

¶ 6 Prior to the time that the report was made public, the Register filed a mandamus action against the Sheriff's Department and Sheriff Steven Rowe under the public records law, WIS. STAT. § 19.37. The Sheriff's Department filed an answer, and the court held a hearing on the matter. Neither party provided the court with a copy of the requested record to review in camera either before or during the hearing. The court determined that the reasons stated by the Sheriff's Department for denying the request were sufficiently specific under Journal/Sentinel, Inc. v. Aagerup, 145 Wis.2d 818, 429 N.W.2d 772 (Ct.App.1988), because the requested report was implicated in a crime detection effort. The court further concluded that the stated reason for denial was sufficient to overcome the presumption of openness under the public records law. Accordingly, the court denied the request for a judgment of mandamus and dismissed the complaint. The Register appeals.

DISCUSSION

Mootness Argument

¶ 7 The Sheriff's Department first points out that, following disclosure by the district attorney, the Register received a copy of the sought-after report from the Dodge County District Attorney. It contends that, as a result, a decision by this court in the Register's favor can have no practical effect on the controversy, and the issue on appeal is therefore moot. See Warren v. Link Farms, Inc., 123 Wis.2d 485, 487, 368 N.W.2d 688 (Ct.App.1985).

¶ 8 We will generally not consider issues that are moot on appeal. See Hernandez v. Allen, 2005 WI App 247, ¶ 10, 288 Wis.2d 111, 707 N.W.2d 557. However, the present appeal is not moot because our ruling will have the practical effect of determining the Register's right to recover damages and fees under WIS. STAT. § 19.37(2)(a)⁴ based upon the Sheriff's Department's denial of its request. Moreover, we make exceptions to the general rule in cases where the issue is of great public importance; the identical issue arises frequently and a decision is needed to guide trial courts; the issue will likely arise again and should be resolved; the issue is likely of repetition yet evades review; or it involves a statute's constitutionality. See State v. Leitner, 2002 WI 77, ¶ 14, 253 Wis.2d 449, 646 N.W.2d 341. We view the issue in the present case as sufficiently important and capable of evading review that it warrants review even if it were moot. Thus we proceed to the merits of the parties' arguments.

Standard of Review

¶ 9 Where a circuit court, determining a petition for a writ of mandamus, has interpreted Wisconsin's public records law, see WIS. STAT. §§ 19.31 through 19.39, and has applied that law to undisputed facts, we review the circuit court's decision de novo. State ex rel. Milwaukee Police Ass'n v. Jones, 2000 WI App 146, ¶ 11, 237 Wis.2d 840, 615 N.W.2d 190.

Sufficiency of the Denial

¶ 10 We begin our discussion by recognizing that the legislature has created a statutory presumption that all government records are public. WIS. STAT. § 19.31 provides that §§ 19.32 to 19.37 (the Wisconsin public 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."

¶ 11 This strong presumption of public access may give way to statutory or specified common law exceptions, or, if there is an overriding public interest in keeping the record confidential. See Hathaway v. Joint Sch. Dist., 116 Wis.2d 388, 397, 342 N.W.2d 682 (1984). The existence of a statutory exception or common law limitation indicates that the legislature or the supreme court have predetermined that the harm to the public interest from inspection outweighs the benefits. Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis.2d 142, 156, 469 N.W.2d 638 (1991). Exceptions are to be narrowly construed; unless the exception is explicit and unequivocal, we will not hold it to be an exception. Hathaway, 116 Wis.2d at 397, 342 N.W.2d 682. Against this backdrop, we review the Sheriff's Department's reasons for denying the request.

¶ 12 The supreme court has established a two-step process for analyzing the question of whether a custodian's denial of access can be sustained by the reviewing court. See Baldarotta, 162 Wis.2d at 157, 469 N.W.2d 638. First, we are to decide whether the circuit court correctly assessed whether the custodian's denial of access was made with the requisite specificity. Id. If we resolve that question in favor of the records custodian, we determine whether the stated reasons for withholding the records are sufficient to outweigh the strong public policy favoring disclosure. Id. The second step is referred to as "the balancing test." See Hempel v. City of Baraboo, 2005 WI 120, ¶ 4, 284 Wis.2d 162, 699 N.W.2d 551.

¶ 13 The Sheriff's Department's denial stated as follows: "The matter has been referred to the District Attorney's Office for review to determine if, in fact, it is criminal in nature or not and/or whether additional investigation is required. The matter, therefore, remains an open and ongoing investigation and cannot be released at this time."

¶ 14 When denying inspection, a records custodian is not required to "provide a detailed analysis of the record and why public policy directs that it must be withheld." Aagerup, 145 Wis.2d at 823, 429 N.W.2d 772. On the other hand, the custodian must give a public policy reason why the record warrants confidentiality. Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179 (1979). Specific policy reasons are necessary for two primary reasons. First, the specificity requirement provides a means of restraining records custodians from...