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SCOW dismisses DA’s action to enjoin release of information in response to open records request

State v. Moustakis, 2016 WI 42, 5/20/2016, affirming a published court of appeals decision, 2015 WI App 63, case activity (including briefs)

This decision may interest those who need to file an open records request concerning a district attorney. In this case, a newspaper asked the DOJ for records of complaints or investigations regarding the Vilas County District Attorney.  The DA sought to enjoin the DOJ from releasing the records.

The issue for SCOW was whether a district attorney is an “employee” as that term is used in Wis. Stat. § 19.356(2)(a)1. and defined in § 19.32(1bg) such that the district attorney may maintain an action for notice and pre-release judicial review of records under § 19.356(4).

The short answer, according to this split opinion, is:

[A] district attorney holds a state public office and is not an “employee” within the meaning of Wis. Stat. §§ 19.32(1bg) and 19.356(2)(a)1. Because the records at issue do not fall within the narrow exception to the general rule that a “record subject” is not entitled to notice or pre-release judicial review of the decision of an authority to provide access to records pertaining to that record subject, Moustakis may not maintain an action under Wis. Stat. § 19.356(4) to restrain the Department of Justice from providing The Lakeland Times access to the requested records. ¶5.

Abrahamson wrote the majority opinion in this case. Roggensack wrote a concurrence/dissent, which Ziegler and Gableman joined.  SCOW’s newest justice, R. Bradley, joined Abrahamson’s majority opinion.


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