Watton v. Hegerty

• Decision Date: 06 November 2007
• Docket Number: No. 2006AP3092.,2006AP3092.
• Citation: 744 N.W.2d 619,2007 WI App 267
• 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.&#x2020
• Court: Wisconsin Court of Appeals

744 N.W.2d 619

2007 WI App 267

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.†

No. 2006AP3092.

Court of Appeals of Wisconsin.

Submitted on Briefs August 7, 2007.

Opinion Filed November 6, 2007.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of Michael J. Watton of Watton Law Group of Milwaukee.

On behalf of the respondent-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney and Melanie R. Swank, assistant city attorney of Milwaukee.

Before WEDEMEYER, FINE and KESSLER, JJ.

¶ 1 KESSLER, J

Michael J. Watton appeals from an order denying a writ of mandamus which sought to compel Milwaukee Police Chief Nannette H. Hegerty to, produce certain emergency detention reports prepared by Milwaukee police officers pursuant to Wis STAT. §§ 51.15(1) and (4) (2005-06),¹ and retained by the Milwaukee Police Department (MPD). The detention reports concerned conduct by Sidney Kente Gray. Watton requested the records from the MPD under Wis. STAT. § 19.35, the open records statute.² The trial court concluded that the MPD-retained emergency detention reports were confidential under Wis. STAT. § 51.30(4) as "treatment records," were therefore exempt from disclosure under the open records statute, and dismissed the petition. Because we conclude that the trial court did not correctly construe the relevant statutes, we reverse.

BACKGROUND

¶ 2 Watton is an attorney who represents the estate and family of Frank Moore II, a person shot and killed by Gray. Watton asserts, and the City does not dispute in these proceedings, that the killing occurred the following day, after Gray was alleged to be mistakenly released from custody. Watton asserts that the release was the result of negligence by the MPD.

¶ 3 Pursuant to Wis. STAT. § 19.35, Watton filed a public records request with the MPD that, as material to this appeal, requested the following:

All police records which include a signed statement of emergency detention of Mr. Gray, including, but not limited to the following specific detentions:

a. June 13 or 14, 2006 (the signed statement of emergency detention pursuant to Wis. Stat. 51.15(4)(a) with all allegations and observations).

b. A January, 2006 signed statement of emergency detention, as described above.

¶ 4 The request identified Gray by various aliases and addresses. It is not disputed that Gray is the person about whom the records were sought and to whom the records disputed here pertain. Watton was promptly presented with a one-page form denial, which made no reference to Watton's specific request, and which read in its entirety:

MILWAUKEE POLICE DEPARTMENT REASONS FOR DELETION # 19 The information that has been deleted relates to a medical or physical condition which, if revealed, may constitute an invasion of the right of privacy of the individual involved and/or immediate survivors. Wis. Stat. §§ 51.30(4), 51.34, 895.50.

(Format, underlining and capitalization as in original.)

¶ 5 On September 19, 2006, Watton filed a petition for a writ of mandamus to compel Hegerty to provide the requested documents. In support of his petition, Watton attached various documents he apparently obtained from public sources. The record reflects Watton's requests that Gray's defense attorney authorize Gray to consent to release of these documents, and that this request was ignored. A six-page evaluation of Gray's competency, prepared by Deborah L. Collins, ABPP, Psy.D., Assistant Director of the Wisconsin Forensic Unit, is included in Watton's petition. The evaluation was done for use in Gray's criminal proceeding.³ The evaluation discloses Gray's status as a mental health patient at the Milwaukee County Mental Health Complex on nine occasions between March 2005 and June 2006. Wisconsin Circuit Court Access (CCAP) records indicate the evaluation was done at the request of Gray's attorney. The evaluation report⁴ is a public record, filed with the court presiding over the criminal proceedings. On October 20, 2006, CCAP records indicate Gray entered a plea of not guilty by reason of mental disease or defect to the criminal charges.

¶ 6 Although the trial court did not grant the writ and order a response, the court did set the matter for a hearing on November 20, 2006. The City produced the requested records (excluding the retained emergency detention reports) along with its formal written response, on October 19, 2006, forty-one days after the date of the original request. WISCONSIN STAT. § 19.35(4)(a) of the open records statute requires production of the records "as soon as practicable and without delay." The trial court found that because the request identified multiple aliases, two birthdates, and several addresses for Gray, the time taken for response was not unreasonable.

¶ 7 At the hearing, the City responded to the petition by admitting that the MPD had copies of three emergency detention reports which involved Gray within the requested time period. The City asserted that it was not required by WIS. STAT. § 19.35 to produce those documents because they were prepared pursuant to WIS. STAT. § 51.15(4)(a), and therefore were confidential under § 51.30(4) as "treatment records." The City also asserted that the records were protected from disclosure by Gray's right of privacy as described in WIS. STAT. § 995.50.⁵ Finally, the City argued that Watton was not entitled to mandamus to compel production of the MPD documents because he had an alternative adequate remedy at law, i.e., § 51.30(3)(c) or (4)(b)(4) allowed him to ask another court to order the treatment facility to release its records.

¶ 8 The parties agreed that the records in dispute were created pursuant to WIS. STAT. § 51.15(4), and that a copy of each document was kept by the MPD. Watton made it clear that he was requesting the document retained by the MPD, not the one delivered to the treatment facility. All parties and the trial court assumed that the two documents are identical on their face.

¶ 9 The trial court read various statutes into the record. These included: WIS. STAT. § 51.15(4), which describes the substance required in, and procedural posture of, the emergency detention report; WIS. STAT. § 51.30(1)(am), which defines "registration records"; § 51.30(1)(b), which defines "treatment records"; and § 51.30(4), which addresses access to those and other records. The trial court made the following finding as to the character of the document retained by the MPD:

I understand that the department gave the original statement of detention to the detention facility entity when the subject was delivered there, and a copy was retained by the department. I'm not exactly sure of the purpose of the department in retaining a copy. I believe I was told at the hearing that a copy was kept to make sure that the department wasn't charged for an ambulance or something like that. . . .

¶ 10 The trial court concluded that "it would be an absurd result if [Watton] could obtain a copy of statements of detention because the department kept a copy. . . . I don't think the statutes provide for that occurring."

¶ 11 In discussing the relationship between the open records statute, WIS. STAT. § 19.35(1), and WIS. STAT. § 51.30(4), the trial court concluded:

Statute 19.35(1) Right to Inspection. And (a) provides except as otherwise provided by law, any requester has a right to inspect any record. There is a statute that does not allow these records to be disclosed. That's Section 51.30(4). The petitioner does not have a clear right to the requested records, and there is no positive plain duty for the police department to provide those records to him.

¶ 12 The trial court dismissed the petition for the writ on the merits. This appeal followed.

STANDARD OF REVIEW

¶ 13 We review questions of statutory interpretation de novo. State v. Stenklyft, 2905 WI 71, ¶ 7, 281 Wis.2d 484, 697 N.W.2d 769. When we construe a statute, we begin with the language of the statute and give it its common, ordinary, and accepted meaning, except that technical or specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110.

¶ 14 Where a circuit court determines a petition for writ of mandamus by interpreting Wisconsin's Open Records Law and has applied that law to undisputed facts, we review the court's decision de novo. ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶ 15, 259 Wis.2d 276, 655 N.W.2d 510; State ex rel. Blum v. Board of Educ., 209 Wis.2d 377, 381, 565 N.W.2d 140 (Ct.App.1997); Wisconsin State Journal v. University of Wis.-Platteville, 160 Wis.2d 31, 36, 465 N.W.2d 266 (Ct.App. 1990).

DISCUSSION

I. Relevant statutes

A. Open records statute—WIS. STAT. §§ 19.35-19.39

¶ 15 Wisconsin's open records statute⁶ requires disclosure of documents maintained by government entities unless disclosure is otherwise prohibited by statute or common law or there is a strong public policy against disclosure. See Woznicki v. Erickson, 202 Wis.2d 178, 181, 549 N.W.2d 699 (1996). When provisions of the Wisconsin privacy statute, WIS. STAT. § 995.50, are also implicated, our supreme court has explained that a balancing test must be applied to the facts in light of the competing policies, and blanket exceptions may not be applied unless provided by common law or statute. Woznicki, 202 Wis.2d at 183, 549 N.W.2d 699. Disclosure of public records also may be limited by specific state or federal statute.⁷ The parties rely on no federal statute to justify withholding the emergency detention reports. The parties have cited no common law basis justifying the refusal to produce these detention reports. We turn, therefore, to Wisconsin statutes to determine whether those...