State ex rel. Youmans v. Owens

• Decision Date: 02 November 1965
• Citation: 28 Wis.2d 672,137 N.W.2d 470
• Parties: STATE ex rel. Henry A. YOUMANS, Respondent, v. Harold OWENS, Mayor of the City of Waukesha, Appellant.
• Court: Wisconsin Supreme Court

Page 470

137 N.W.2d 470

28 Wis.2d 672

STATE ex rel. Henry A. YOUMANS, Respondent, v. Harold OWENS, Mayor of the City of Waukesha, Appellant.

Supreme Court of Wisconsin.

Nov. 2, 1965.

Opinion Modified on Denial of Rehearing Jan. 19, 1966.

See 139 N.W.2d 241.

Hippenmeyer & Reilly, Waukesha, for appellant.

Lowry, Hunter & Tikalsky, Waukesha, Foley, Sammond & Lardner, James P. Brody, Milwaukee, for respondent.

John R. Collins, Milwaukee, for amicus curiae, The Journal Co.

CURRIE, Chief Justice.

These three issues are raised by this appeal:

(1) Is petitioner the real party in interest?

(2) Does sec. 18.01, Stats, apply to the report sought to be obtained by petitioner?

(3) If sec. 18.01 does apply, is the right of inspection subject to any limitations?

Real Party in Interest.

Sec. 260.13, Stats., provides, 'Every action must be prosecuted in the name of the real party in interest except as otherwise provided in section 260.15.'

Defendant asserts that the real party in interest in this case is the Waukesha Freeman and that the suit shoudl not be allowed to proceed in the name of the petitioner. In this regard defendant relies heavily on a number of freeman headlines and news stories which indicated that the newspaper was bringing the lawsuit. A newspaper headline is of no value in the legal determination of who is the real party in interest.

One of the leading cases which has extablished the guiding principles for determining whether a party is the real party in interest is Marshfield Clinic v. Doege. ¹ The court therein quoted with approval from 15 Ency.Pl. & Pr., p. 710, the following:

"'The real party in interest, within the meaning of this provision of the code, is the person who will be entitled to the benefits of the action if successful; one who is actually and substantially interested in the subject-matter, as distinguished from one who has only a nominal, formal, or technical interest in or connection with it."' ²

Plaintiff surely fits within this definition because if successful he will be the one entitled to make the inspection. That his motivation in seeking inspection is to benefit his newspaper and permit it to publish the material gained therefrom is immaterial. The fact that he as a citizen deems it essential that the material contained in the report be made available to the public is sufficient to qualify him as the real party in interest.

Applicability of Sec. 18.01.

Sub. (1) and (2) of sec. 18.01, Stats., brovide:

'(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 hourse and subject to such orders or regulations as the custodian thereof may prescribe, examine or copy any of the property or things mentioned in subsection (1).'

While technically it may be inaccurate to refer to the papers filed by City Attorney Buckley with defendant mayor as a 'report' we do so in the interest of brevity. Defendant contends that the aforequoted statutory provisions do not extend to this report because it was not 'required by law' to be filed with the mayor. However, the statutory words of sub. (1) 'or which are in the lawful possession or control of himself' extend the applicability of the statute to some papers and documents not required by law to be filed, deposited, or kept in the mayor's office.

The leading case dealing with inspection of public records and documents pursuant to sec. 18.01, Stats., is International Union, etc. v. Gooding. ³ In that case plaintiff union requested an alternative writ of mandamus to compel defendant and others, representing the Wisconsin Employment Relations Board, to make available a petition of file with the board. There was no statutory provision authorizing the filing of this petition because it sought to invoke a jurisdiction which the board did not possess. Plaintiff asserted it was entitled to look at the petition under sec. 18.01(1) and (2), Stats. In considering what papers and records the statute applied to, the court said:

'Sec. 18.01(1) in supplanting all the existing legislation heretofore mentioned deals with three specific types of papers that must be kept by an officer and delivered to a successor in office: (1) Such books, papers, records, etc., as are required by law to be filed, deposited or kept in his office; (2) books, papers, etc., in his possession as such officer; (3) books, papers, etc., to the possession of which he is entitled as such officer.' ⁴ (Emphasis supplied.)

In determining that the trial court had correctly denied the motion to quash the writ, the court emphasized its position by stating:

'It is clear enough that it was supposed by the legislature that numerous papers other than those required by specific statute or rule to be kept should remain in the files as a part of the records of an office. * * * It is the rule independently of statute that public records include not only papers specifically required to be kept by a public officer but all written memorials made by a public officer within his authority where such writings constitute a convenient, appropriate or customary method of discharging the duties of the office.' ⁵

This overruled sub silentio the dictum appearing in the final paragraph of ghe opinion in State ex rel. Spencer v. Freedy ⁶ in which the conclusion was expressed that sec. 18.01, Stats., only allowed inspection of 'anything required by law to be filed, deposited, or kept in a public office.'

Defendant mayor as 'head of the * * * police departments' ⁷ is entitled to a report of any investigation of the police department made by the city attorney. We deem it wholly immaterial, on the issue of whether defendant was in legal custody of ghe papers sought to be inspected, that here the city attorney did not submit a formal report stating the conclusions he had reached as a result of his investigation, but instead merely filed with the mayor the statements of persons interviewed and interdepartmental memoranda. We conclude that sec. 18.01(1) and (2), Stats., is applicable to the documents with respect to which petitioner seeks to compel inspection.

Limitations on Right to Inspect.

However, merely because the papers sought to be inspected, although not required by law to be filed or kept by defendant, were in his lawful possession, did not automatically entitle petitioner to inspect them. The inspection provisions of sec. 18.01(1) and (2), Stats., were contained in a revisor's bill ⁸ and prior to that enactment there existed no statute which attempted to spell out the rights of members of the public to inspect public records. The revisor's notes to sub. (2) of sec. 18.01 stated that this subsection 'is believed to give expression to the general implied right of the public to consult public records.' The court in the Gooding Case quoted this statement and then declared:

'In view of the presumption that a revisor's bill is not intended to change the law we conclude that this is the scope of the section. While it is possible to contend that the words are so clear as not to be subject to construction we are of the view that the common-law right of the public to examine records and papers in the hands of an officer has not been extended.

'We shall not go into the scope of the common-law right exhaustively or attempt to document our observations upon it. It is enough to say that there are numerous limitations under the common law upon the right of the public to examine papers that are in the hands of an officer as such officer. Documentary evidence in the hands of a district attorney, minutes of a grand jury, evidence in a divorce action ordered sealed by the court are typical. The list could be expanded but the foregoing is enough to illustrate that in certain situations a paper may in the public interest be withheld from public inspection. Whatever limitations existed at common law still exist under sec. 18.01(2).' ⁹

An authoritative statement of the common-law right of inspection of public documents is that made by the Vermont court in Clement v. Graham ¹⁰ as follows:

'We think it may be safely said that at common law, when not detrimental to the public interest, the right to inspect public records and public documents exists with all persons who have a sufficient interest in the subjectmatter thereof to answer the requirements of the law governing that question.' ¹¹

Thus the right to inspect public documents and records at common law is not obsolute. There may be situations where the harm done to the public interest may outweigh the right of a member of the public to have access to particular public records or documents. Thus, the one must be balanced against the other in determining whether to permit inspection. ¹² An illustration of a type of situation in which the harm to the public interest, if inspection were permitted, was held to outweigh the individual's right to inspect is provided by City & County of San Francisco v. Superior Court. ¹³ There the records sought to be inspected contained information which had been gathered from employers under the pledge that it would be kept confidential. To have permitted inspection would not only have constituted a breach of this pledge, but would have seriously handicapped governmental agencies in gathering information in the future under a similar pledge because of distrust that the pledge would not be observed.

We deem it unwise to attempt to catalog the situations in which harm to the public interest...