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Open records law requires disclosure of videos of training presentations made by candidate for Attorney General

Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2014AP2536-FT, District 4/2, 10/14/15 (summary disposition; ineligible for publication, reversed, 2016 WI 100; case activity (including memo briefs)

While this decision is not citable, even for persuasive value, see Rule 809.23(3)(b), On Point thought it newsworthy enough to bring to our readers’ attention. Here’s the genesis of the case: Before the November 2014 election, the Democratic Party filed an open records request for videos of two training presentations made by Brad Schimel, the DA running for Attorney General. The Department of Justice denied the request, but a circuit judge ordered the videos to be released. The court of appeals affirms that order.

DPOW requested two videos, one from 2009 about internet sexual predator cases, and one from 2013 about interacting with victims of sensitive crimes. DOJ denied release of the videos under the open records law balancing test, which weighs the competing interests involved and determines whether permitting inspection would result in harm to a public interest that outweighs the legislative policy recognizing the public interest in allowing inspection. John K. MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014 WI App 49, ¶13, 354 Wis. 2d 61, 848 N.W.2d 862. DOJ declined to produce the videos based on the policies of preserving victim privacy and, because they discussed litigation strategy, preserving the ability to effectively investigate and prosecute crimes. (Slip op. at 2-3).

The court of appeals agrees with the circuit court that these policies do not outweigh the strong presumption favoring public access:

As described in the circuit court’s findings, which are not clearly erroneous, Wis. Stat. § 805.17(2), the 2009 and 2013 video recordings did not offer any personally identifiable details about the victims, did not discuss any investigation and prosecution practices not already known or knowable in the public sphere, and did not provide information that would hinder the ability to prosecute the types of crimes discussed in Schimel’s presentations. In light of the circuit court’s findings about the video recordings, the DOJ’s reasons for withholding the recordings were not sufficient. Erpenbach, 354 Wis. 2d 61, ¶14. The DOJ did not meet its burden to show that the public’s interest would be served by keeping the video recordings confidential. Id.

We are unpersuaded by the DOJ’s reliance upon Linzmeyer v. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811. The circuit court’s findings about the video recordings in the case before us do not implicate the Linzmeyer court’s concerns about disclosing law enforcement records. See id., ¶30. For example, the Linzmeyer court was concerned about whether disclosing law enforcement records would interfere with an ongoing prosecution or the safety or privacy of persons mentioned in the record. Id., ¶¶30-31. Such concerns do not apply in this case because the video recordings do not discuss an ongoing prosecution or compromise the privacy of any victim.

“[I]nformation that is already known to the public is germane to the balancing test.” Id., ¶37. The video recordings in the case before us discuss techniques and procedures the circuit court found were known to the public. See id., ¶¶39, 41. Linzmeyer does not dictate a different outcome on appeal. (Slip op. at 5-6).

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