Watton v. Hegerty

• Decision Date: 01 July 2008
• Docket Number: No. 2006AP3092.,2006AP3092.
• Citation: 751 N.W.2d 369,2008 WI 74
• Parties: Michael J. WATTON d/b/a Watton Law Group, Petitioner-Appellant, v. Nanette H. HEGERTY Chief of Police and as official custodian of records for the City of Milwaukee Police Department, Respondent-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

751 N.W.2d 369

2008 WI 74

Michael J. WATTON d/b/a Watton Law Group, Petitioner-Appellant, v. Nanette H. HEGERTY Chief of Police and as official custodian of records for the City of Milwaukee Police Department, Respondent-Respondent-Petitioner.

No. 2006AP3092.

Supreme Court of Wisconsin.

July 1, 2008.

For the respondent-respondent-petitioner the cause was argued by Melanie R. Swank, Assistant City Attorney, with whom on the briefs was Grant F. Langley, City Attorney, Milwaukee.

For the petitioner-appellant there was a brief by Michael J. Watton, Michael J. Maloney, and Watton Law Group, Milwaukee, and oral argument by Michael J. Watton.

An amicus brief was filed by Maureen McGlynn Flanagan, Assistant Attorney General, and J.B. Van Hollen, attorney general, on behalf of the Wisconsin Department of Justice.

An amicus brief was filed by James G. Godlewski, Neenah, on behalf of the Government Lawyers Division of the State Bar and International Municipal Lawyers Association, and oral argument by James G. Godlewski.

¶ 1 PATIENCE DRAKE ROGGENSACK, J

We review a decision of the court of appeals¹ reversing a circuit court² order denying Michael J. Watton's petition for a writ of mandamus. Watton filed a petition for a writ of mandamus to compel the production of statements of emergency detention³ kept by the City of Milwaukee Police Department. The issue presented is whether, upon an open records request to the City of Milwaukee Police Department, provisions of the Mental Health Act, ch. 51 of the Wisconsin Statutes, preclude disclosure of duplicate copies of statements of emergency detention that are in the possession of the police department, absent written informed consent or a court order. We conclude that it does; and therefore, we reverse the decision of the court of appeals.

I. BACKGROUND⁴

¶ 2 On September 8, 2006, Watton hand-delivered an open records request to the City of Milwaukee Police Department,⁵ pursuant to Wis. Stat. §§ 19.31-39.⁶ Watton requested two documents pertaining to Sidney Kente Gray⁷ that are relevant to this appeal:⁸ (1) a signed statement of emergency detention for Sidney Kente Gray created on or about June 13 or June 14, 2006; and (2) a signed statement of emergency detention for Sidney Kente Gray created in January 2006.

¶ 3 On October 19, 2006, through her designee at the City of Milwaukee Police Department, the records custodian denied Watton's request for Gray's statements of emergency detention. However, before receiving the police department's written response to his records request, Watton filed a petition for a writ of mandamus to compel the production of the records he had requested under the open records law. The circuit court denied Watton's petition and he appealed.

¶ 4 The court of appeals reversed. Watton v. Hegerty, 2007 WI App 267, 306 Wis.2d 542, 744 N.W.2d 619. It held that Watton satisfied all four requirements for obtaining a writ of mandamus. First, the court of appeals concluded that Watton had a clear right to the records he sought because statements of emergency detention are neither "registration" nor "treatment" records, as described in Wis. Stat. § 51.30(1)(am) and (1)(b); and therefore, the records are not exempt from disclosure. Id., ¶ 33. Second, it concluded that the custodian had a plain duty under the open records law, Wis. Stat. § 19.35, to release the records. Id., ¶ 30. Third, the court concluded that "the policy of open records [was] improperly thwarted" by the City of Milwaukee Police Department's decision not to disclose records to Watton, and as a result Watton incurred damages. Id., ¶ 33. Finally, the court concluded that Watton had no other remedy at law for obtaining the records, because the remedy advanced by the custodian, i.e., that Watton could seek a court order for the release of the records pursuant to § 51.30(4)(b)4, was inapplicable as that remedy pertains only to "registration" or "treatment" records, as described in § 51.30(1)(am) and (1)(b), and the records sought here did not fit those definitions. Id., ¶ 34.

¶ 5 We granted the custodian's petition for review and now reverse.

II. DISCUSSION

A. Standard of Review

¶ 6 We review a decision regarding a petition for a writ of mandamus under the erroneous exercise of discretion standard. State ex rel. Lewandowski v. Callaway, 118 Wis.2d 165, 171, 346 N.W.2d 457 (1984). However, we interpret statutes independently, "but benefiting from the analyses of the court of appeals and the circuit court." Marder v. Bd. of Regents of the Univ. of Wis. Sys., 2005 WI 159, ¶ 19, 286 Wis.2d 252, 706 N.W.2d 110. We also independently review the application of the open records law and the Mental Health Act to undisputed facts, in regard to a petition for mandamus. ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶ 1, 259 Wis.2d 276, 655 N.W.2d 510.

B. Writ of Mandamus

¶ 7 A petition for a writ of mandamus is a proper means by which to challenge a refusal to disclose documents sought under the open records law. State ex rel. Greer v. Stahowiak, 2005 WI App 219, ¶ 7, 287 Wis.2d 795, 706 N.W.2d 161. Mandamus is an "extraordinary writ" that may be employed to compel public officers to perform a duty that they are legally obligated to perform. Id., ¶ 6.

¶ 8 In order to obtain a writ of mandamus compelling disclosure of records, the petitioner must establish that four prerequisites are satisfied: (1) the petitioner has a clear legal right to the records sought;⁹ (2) the government entity has a plain legal duty to disclose the records; (3) substantial damages would result if the petition for mandamus was denied; and (4) the petitioner has no other adequate remedy at law. See id., ¶ 6; see also, Pasko v. City of Milwaukee, 2002 WI 33, ¶ 24, 252 Wis.2d 1, 643 N.W.2d 72.

¶ 9 In considering Watton's petition for mandamus, we are mindful of the policies underlying the open records law:

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 employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information.

Wis. Stat. § 19.31. Accordingly, Wisconsin "recognizes a presumption of accessibility to public records." Nichols v. Bennett, 199 Wis.2d 268, 273, 544 N.W.2d 428 (1996).

¶ 10 However, the presumption of access does not create an absolute right of access. Access to records may be denied where there is a specific statutory exemption to disclosure, Wis. Stat. § 19.36, or where there is a common law or public policy exception, Newspapers, Inc. v. Breier, 89 Wis.2d 417, 426-27, 279 N.W.2d 179 (1979).¹⁰

C. Mental Health Act

¶ 11 The parties agree that the statements of emergency detention that Watton seeks are created under provisions of the Mental Health Act, ch. 51 of the Wisconsin Statutes. The custodian contends, however, that the Mental Health Act specifically exempts the statements from disclosure, when read in combination with Wis. Stat. § 19.36(1). The custodian argues that the statements are "registration records," as described in Wis. Stat. § 51.30(1)(am), which also categorizes them as "confidential and ... privileged" "treatment records," as provided in § 51.30(1)(b) and (4). Accordingly, the custodian maintains that Watton does not have a "clear legal right" to Gray's statements of emergency detention. Greer, 287 Wis.2d 795, ¶ 6, 706 N.W.2d 161. Moreover, the custodian argues, a writ of mandamus cannot issue because the Mental Health Act provides Watton another remedy at law, i.e., under § 51.30(4)(a)4, he may petition the court to obtain the records.

¶ 12 Watton counters that statements of emergency detention cannot be considered "treatment records" because only those records that are "maintained" by the Department of Health and Family services, its county branches or its staff, or by treatment facilities constitute "treatment records," under Wis. Stat. § 51.30(1)(b). He argues that the City of Milwaukee Police Department does not fit within these categories of entities "maintain[ing]" the statements of emergency detention. Accordingly, he contends that the Mental Health Act does not specifically exempt statements of emergency detention that are in the possession of the police department from disclosure, under Wis. Stat. § 19.36(1).

¶ 13 Because he contends there is no statutory exemption to the open records law that would keep statements of emergency detention private, Watton argues that, in weighing the balance between private and public interests under the open records law, the balance tips toward disclosure because there is no "overriding public interest in keeping the records confidential." Woznicki v. Erickson, 202 Wis.2d 178, 181, 549 N.W.2d 699 (1996). Watton contends this is so because Gray has put his mental competency at issue in defending the criminal charges filed against him related to the Thomas Moore shooting.¹¹ The psychological evaluation Gray underwent after pleading not guilty by reason of mental disease or defect is available through the Milwaukee County Circuit Court. Accordingly, Watton argues that Gray cannot keep private those facts he has already made public.

¶ 14 To resolve the parties' dispute over the statements of emergency detention, we interpret various provisions of chs. 51 and 19 of the Wisconsin Statutes. "[S]tatutory interpretation `begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.'" State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, 236 Wis.2d...