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SCOW denies open records law request for DA training videos

Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2016 WI 100, 12/28/16, reversing a summary disposition of the court of appeals; case activity (including briefs)

Before the November 2014 election, the Democratic Party of Wisconsin 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, and the court of appeals affirmed that order. In an opinion that will arguably enhance the ability of prosecutors to deny release of their records—or, as the dissent aptly describes it, will dim or even shut out some of the light meant to be shed by Wisconsin’s “Sunshine Law”—a majority of the supreme court holds the videos don’t have to be released.

DPOW requested two videos, one from 2009, about prosecuting internet sexual predator cases, and another 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.

In an opinion written by R.G. Bradley, a majority of the supreme court holds that, under the balancing test, the 2009 video is not subject to release because the public interest in releasing it is outweighed by the public policy of protecting prosecution and police tactics for dealing with internet sex crimes against minors:

¶19     The reason for protecting prosecutorial techniques and local police strategies is obvious: if local criminals learn the specific techniques and procedures used by police and prosecutors, the disclosed information could be used to circumvent the law. The content of the 2009 video falls squarely into this category. Releasing this video would create a significant risk that specific techniques and strategies being used in Wisconsin could instantly be disseminated over the internet and exploited by sexual predators. This information would in essence serve as a textbook enlightening Wisconsin criminals on how to avoid detection, elude capture, and escape conviction. The harm arising from release would substantially impair the ongoing battle police and prosecutors face in protecting children and would impede efforts made to catch and prosecute sexual predators who lurk in the shadows and anonymity of internet websites. Although disclosing this information directly to the Democratic Party alone would not necessarily be harmful, releasing the 2009 video to one effectively renders it public to all, including anyone plotting to use it to circumvent the law. …. Releasing the 2009 video would frustrate the public policy of investigating and prosecuting criminal activity that in this instance would cause considerable public harm, which overwhelmingly outweighs any public interest in viewing it. ….

In addition to criticizing the majority’s reasoning as relying on conclusory assertions rather than actual demonstrations of what techniques would be divulged or how a criminal could use the video to circumvent the law (¶¶66-76), the dissent (Abrahamson, joined by A.W. Bradley) stresses that the majority opinion “should not be read as adopting a per se rule that any time a requested record implicates any law enforcement technique or prosecutorial strategy, the record will be withheld from public view. Indeed, the Department of Justice’s brief explains that it is not asking for any sort of blanket exception.” (¶76).

Even so, note that the majority has no time for the lower courts’ reasoning that the techniques discussed in the video are already widely known and publicized (¶¶20-21) and stresses that the video revealed no dereliction of duty or official misconduct (¶22) (though, of course, that’s not a prerequisite to release of public records). And, in a novel twist, the majority says the political “context” of the request is relevant, noting DPOW made the request during a partisan campaign, when Brad S chimel, the prosecutor who made the presentations in the videos, was running for AG. (¶23). Finally, in summing up its reasoning, the majority essentially applies what might be called a “greater latitude of nondisclosure” rule when it comes to releasing records when “sexual exploitation of vulnerable children is at risk.” (¶24). All in all, this reasoning will likely make it harder to get records if a prosecutor asserts they divulge “prosecution strategies and law enforcement tactics”—apparently the last things citizens of a free society need to know about.

As to the 2013 video, which involved a discussion of the prosecution of Anthony Stancl, the majority holds it is exempt from disclosure because it is effectively the prosecutor’s closed case file and is therefore covered by State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991), which held that a prosecutor’s closed file wasn’t subject to the open records law given the confidential nature of some of the contents of the file, the prosecutor’s broad discretion in charging, and the threat disclosure posed to the orderly administration of justice:

¶27     The 2013 video, of course, is not a prosecutor’s typical paper case file. Rather, the record is an oral, in-depth presentation by Attorney Schimel, who was the prosecutor in charge of the sex extortion case discussed. Attorney Schimel shared his thought processes for charging and walked through the case from the beginning to the end. The presentation is in great respect the oral equivalent of a prosecutor’s closed case file. The same rationale asserted in Foust to protect closed prosecutorial case files from disclosure under public records requests applies to the video here. Attorney Schimel’s oral presentation included his analysis and impressions regarding charging and how to charge, a concept Foust labeled as confidential. Foust, 165 Wis. 2d at 433-35. The presentation also addressed issues relating to confidentiality of victims’ identities and statements, which parallels Foust’s concerns about anonymous statements and informants’ statements. See id. at 435. Attorney Schimel discussed what would equate to “historical data leading up to the prosecution,” which Foust expressed should be protected from public disclosure. Id. Based on these similarities, it would be illogical to conclude that a paper accounting of a district attorney’s discretionary processes must be kept confidential but an oral accounting of the same, given in a confidential setting, need not. It is the nature of the record, rather than its form or location that matters. ….

Even if the video wasn’t exempt from disclosure under Foust, the majority holds, it would be under the balancing test, once again because it would divulge prosecution strategies and law enforcement tactics and because it would risk re-traumitizing the victims of the case, and every effort must be made to avoid that risk. (¶¶28-33).

The dissent criticizes the majority’s “extension” of Foust, which was founded on the need to protect the identities of confidential informants and prosecutorial discretion:

¶102     Foust did not enshrine the entire prosecutorial file beyond the public’s view. This court has recognized that not all documents in a prosecutor’s file are subject to the common-law exception to disclosure. See Nichols v. Bennett, 199 Wis. 2d 268, 544 N.W.2d 428 (1996) (the document’s nature and not its location determines its status under the public records law). “[D]ocuments integral to the criminal investigation and prosecution process are protected ‘from being open to public inspection.'” Nichols, 199 Wis. 2d at 275 n.4 (quoting Foust, 165 Wis. 2d at 434).

¶103     The Department of Justice has not shown that the content of the 2013 video is integral to the closed case or to future open criminal investigations, especially in light of the publicity surrounding Stancl’s case.

It also disputes the majority’s application of the balancing test, citing the significant public disclosures about Stancl’s case (see, e.g., here) and the majority’s elevation of the protection of crime victims over the presumption of openness of public records, especially when it is only speculative that the release will actually affect any of the victims in Stancl’s case. (¶¶106-17). As the dissent points out, this injects a considerable a new uncertainty into the test:

¶119      By concluding that the protection of crime victims in the instant case overcomes the legislatively created presumption of openness, the majority opinion offers no workable limits on when protection of crime victims will or will not outweigh the presumption of openness. When a victim of a crime is not identified but is implicated in the record, what is the weight of the thumb on the scale for nondisclosure? Does the majority opinion intend to promulgate a per se rule that protection of crime victims who are not identified but may be implicated always defeats the presumption of openness of records? I think not.

The dissent levels other criticisms at the majority’s reasoning, in particular its refusal to consider whether the videos can be redacted to disclose some of the information. (¶¶54-5780-96, 118, 122). If your line of country includes public records requests, further study of the dissent may help deal with public officials emboldened by this decision to withhold records.

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