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Albert D. Moustakis v. Wisconsin Department of Justice, 2014AP1853, petition for review granted 11/4/15

Review of a published court of appeals decision; case activity

Issue (composed by On Point)

Is an elected district attorney a public “employee” who may enjoin the release of records under the open records law because they relate to employee discipline?

While this case doesn’t present an issue bearing on the day-to-day practice of indigent defense, we note it because the supreme court’s decision might be of interest to anyone who finds themself making an open records request to DOJ for information about a district attorney. Here’s the background:

A newspaper requested DOJ to release records of any “complaints or investigations” regarding Vilas County District Attorney Al Moustakis. The request covered records containing information “regarding any investigation of his conduct or handling of cases while district attorney” as well as records containing “information related to complaints and investigations regarding Mr. Moustakis that were completed or ended without any action taken against him” and “any communications between Mr. Moustakis and [the DOJ] since he took office in 1995.” After DOJ compiled some records to release (with redactions), Moustakis filed suit to enjoin the release, arguing he was an “employee” and that the records related to disciplinary proceedings against him. His arguments fell on deaf ears in the court of appeals:

¶15     …Moustakis asserts he is entitled to bring an action to enjoin release because the records responsive to The Lakeland Times’ request qualify under Wis. Stat. § 19.356(2)(a)1. That subdivision concerns a record “containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee’s employer.” Id. We conclude the records at issue in this case cannot qualify under § 19.356(2)(a)1. because Moustakis is not an “employee,” and therefore the records do not contain information “relating to an employee.”[6] We reach this conclusion because district attorneys are specifically excluded from the definition of “employee” under Wis. Stat. § 19.32(1bg).

[6] The DOJ argues the records at issue in this case do not otherwise qualify under Wis. Stat. § 19.356(2)(a)1. because they do not relate to a disciplinary matter or an employment-related violation of law, and because § 19.356(2)(a)1. applies “only to investigative documents actually prepared by the employee’s employer.” Because we resolve the case on alternative grounds, we need not address these issues. ….

We’ll soon learn whether the supreme court is more inclined to hear Moustakis’s pleas.

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