Wisconsin’s pubic records law provides 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.” Wis. Stat. § 19.31. Accordingly, “[t]he denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.
The Wisconsin Court of Appeals recently issued a decision confirming the strong public interest in obtaining information about its public officials. Milwaukee Deputy Sheriffs’ Association and Joel Streicher v. County of Milwaukee Count Clerk, et al., Appeal No. 2020AP2028-AC (Wis. Ct. App. October 12, 2021).
This case involves a public records request for the disciplinary records of Sheriff Deputy Joel Streicher (“Streicher”). On January 25, 2020, Streicher, while on duty, drove his squad car through a red light and hit an individual, killing him. On January 28, 2020, WISN in Milwaukee requested Streicher’s disciplinary records (the estate of the individual killed subsequently requested the records as well). The Milwaukee County Sheriffs’ Office (“MCSO”) reviewed the request, weighed the public’s interest in disclosing the records against keeping the records confidential, and determined that the records were subject to disclosure. As required by law, the MCSO notified Streicher of its decision and noted that the records contained two (2) “sustained” internal affairs files. Streicher subsequently filed suit seeking to prevent the release of the requested records.
On September 22, 2020, the Milwaukee County Circuit Court granted the release of one of the internal affairs files, but denied the release of the other. The circuit court concluded that the strong public interest in disclosure did not warrant disclosure of the one internal affairs file. In support of its decision, the circuit court cited to the fact that the internal affairs investigation was “quite dated” (it was thirteen years old) and focused on an “improper search of a residence” which occurred after police seized marijuana from a car. The circuit court noted that it was concerned about the references in the file related to the prosecutor’s case planning and that disclosing the file might “endanger individuals who were involved in [the drug] investigation.” The circuit court further noted that albeit the information could be redacted, “very significant” redactions would need to occur. Finally, the circuit court cited to the fact that the internal affairs file in dispute did not “add anything” because “the fact of . . . Streicher’s discipline is part of the record” and he was only “a very minor player” in a larger investigation.
The issue on appeal was whether the public’s interest in disclosure of the one internal affairs file was outweighed by the competing public interest in keeping the internal affairs file confidential. The parties pursuing the records argued that the public has a strong interest in knowing when public officials violate the law and how any investigation into such was handled.
In reaching its decision, the Court of Appeals cited to the fact that it is well established that the public has a strong interest in obtaining information about its public officials. Journal/Sentinel, Inc. v. School Board of the School District of Shorewood, 186 Wis. 2d 443 (Wis. Ct. App. 1994). Additionally, the public has a “particularly strong interest in being informed about public officials who have been “derelict in [their] duty.’” Wisconsin Newspress, Inc. v. School District of Sheboygan Falls, 199 Wis. 2d 768 (Wis. 1996).
The Court of Appeals ultimately concluded that this is not “an exceptional case” in which the public’s strong interest in disclosure of government records is outweighed by the public’s interest in keeping the records confidential. First, any information that, if disclosed, would “[e]ndanger an individual’s life or safety” or “[i]dentify a confidential information” was subject to redaction. Second, the internal affairs investigation at issue took place over a decade ago and was “quite dated.” There was no indication that the documents were related to an “on-going prosecution or investigation” which might impede the public policy of investigating and prosecuting criminal activity. Third, the information was already publicly known. Fourth, the fact that Streicher played only a minor role in the improper search was irrelevant.
This decision is important because it serves as a reminder of the process governmental entities must utilize when evaluating the release of public records. When a public records request is made, the records custodian must first determine whether the requested records fall into an exception that prevents disclosure. Hempel v. City of Baraboo, 284 Wis. 2d 162 (Wis. 2005). Two (2) general types of exceptions may apply: statutory exceptions and common law exceptions. Linzmeyer v. Forcey, 254 Wis. 2d 306 (Wis. 2002).
If the requested records do not fall within an exception, the records custodian then must apply the balancing test. The records custodian must determine whether the public interest in disclosure of the records is outweighed by any public interest in keeping the records confidential (i.e., do public policy interests favoring nondisclosure outweigh the public policy interests favoring disclosure).
In the end, it is going to be the exception, rather than the rule, where the public’s interest in obtaining information related to the misconduct of public officials and the extent to which that misconduct was investigated is outweighed by the public’s interest in keeping this information confidential.
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Tony J. Renning
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