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January/February 2017 Issue

Also in this issue: Lawsuit Challenging Annexation of Frac Sand Mine Dismissed

Prosecutor Trainings Recordings Not Subject to Disclosure Under Public Records Law

The Democratic Party of Wisconsin requested recordings of two prosecutor trainings given by Waukesha District Attorney Brad Schimel. At the time of the request, Schimel was running for Wisconsin Attorney General, a position in which he now serves. The records custodian denied the request, resulting in the Democratic Party of Wisconsin seeking a court order to release the recordings. The Wisconsin Supreme Court ruled in Democratic Party of Wisconsin v. Wisconsin Dep’t of Justice, 2016 WI 100 (Dec. 28, 2016) that these recordings were not subject to disclosure. The case has implications for public record custodians as the case explains that the risks of revealing prosecutorial strategies and law enforcement tactics weigh strongly against disclosure of public records.

Both recordings were made at Wisconsin State Prosecutors Education and Training conferences and were attended by prosecutors and victim’s rights advocates. On the first recording, Schimel discussed the prosecution of and common defenses in child exploitation cases. On the second recording, Schimel discussed victim confidentiality through the lens of a high-profile case that Schimel prosecuted. The records custodian denied the request for both recordings, concluding that the public interest in nondisclosure outweighed the presumption favoring release of the records. The Wisconsin Supreme Court ultimately held that the record custodian’s reasons for nondisclosure were legally sufficient.

The court analyzed each recording separately. For the first recording, the court determined that the recording contained specific techniques and procedures for law enforcement investigations and prosecutions. Releasing this information would be so harmful to the public interest as to justify nondisclosure. The court noted that sexual predators could use the information in these recordings to circumvent the law. Furthermore, permitting this disclosure would require the records custodian to disclose these records to every other future requestor. The court explained that the recordings would not help parents protect their children from sexual predators. In applying the balancing test, Schimel’s status as a public official was not sufficient to outweigh the factors favoring nondisclosure, particularly when the parties agreed that the recordings did not reveal any misconduct by Schimel. Therefore, the recording was not subject to disclosure.

For the second recording, the court held that a common law exception protecting prosecutorial case files from disclosure applied. The court described the recorded training as an oral accounting of the district attorney’s discretionary processes—the same processes that would otherwise be protected in written form under the common law exception. Because a common law exception to disclosure applied, the court did not have to apply the balancing test. However, the court explained that even if the balancing test applied, the record would still not be subject to disclosure. The court acknowledged that this recording, like the first recording, implicated the public interest in protecting from disclosure specific techniques and procedures for law enforcement investigations and prosecutions. Furthermore, this recording implicated the Wisconsin Constitution’s mandate that the State treat crime victims with “fairness, dignity and respect for their privacy.” Disclosing the recording risked re-traumatizing the victims, even though the victims were not mentioned by name in the recording, because the high profile nature of the case made the victims’ identities easily discoverable. The court also expressed concern that continually traumatizing victims would deter future victims from reporting crimes. For these reasons, the court held that the recording was not subject to disclosure.

Interestingly, the court also concluded that the records custodian did not have to release a redacted version of the recordings because a redacted version “would be meaningless to the viewer.” This conclusion drew criticism from the dissenting justices because generally records custodians have to produce redacted versions of records under the law. This decision provides some support for the proposition that records custodians do not have to disclose redacted versions of records that would be “meaningless to the viewer.” However, records custodians should consult with legal counsel on this issue before deciding not to disclose redacted records.

This case is a reminder that records custodians must carefully consider all the relevant factors when applying the balancing test under the Wisconsin Public Records Law. Wisconsin law creates a presumption that public records are subject to disclosure absent an exception. However, that presumption can be overcome if the public interest in nondisclosure outweighs the public interest in disclosure. The Wisconsin Supreme Court emphasized in this case that the risk of revealing specific techniques and procedures for law enforcement investigations and prosecutions weighs strongly against disclosure. While the recordings in this case discussed high profile serious criminal cases, the rationale of the case is applicable to prosecutors more generally, including municipal prosecutors. While the risk of disclosing these techniques and procedures may be somewhat diminished in less significant cases, records custodians should recognize Wisconsin’s public policy against disclosure of these techniques and procedures. Records custodians need to examine each public record on a case-by-case basis to determine whether the record is subject to disclosure. 

Brian Goodman

This newsletter is published and distributed for informational pur- poses only. It does not offer legal advice with respect to particular situations, and does not purport to be a complete treatment of the legal issues surrounding any topic. Because your situation may differ from those described in this Newsletter, you should not rely solely on this information in making legal decisions.

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