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Wisconsin Democratic Party v. DOJ, 2014AP2536, review granted 1/7/16

Review of a court of appeals summary disposition, case activity (including briefs)

Issues (from the DOJ’s PFR here, Democratic Party’s response here):

  1.  The public records law contemplates that some records should not be disclosed because it would be contrary to the public interest, and courts recognize the public importance of protecting crime victims and law enforcement techniques. Here, DOJ determined that releasing videos from prosecutors’ training seminars would not be in the public interest because the videos contained discussions of crime victims and law enforcement strategy. Was DOJ’s rationale sufficient to overcome the presumption of disclosure?

  2. This court has previously stated that records custodians have “substantial discretion” in evaluating whether the public interest would be harmed by disclosure of certain records. DOJ exercised that discretion in the law-enforcement context to conclude that the public interest would be harmed by disclosure of sensitive information about crime victims and law enforcement techniques and strategies. Should DOJ’s reasons, grounded in law enforcement functions, be entitled to greater deference than was afforded below?

  3. The open records law provides that if a records custodian determines that certain information is not subject to disclosure, the custodian shall redact from the record any such information.  Here, DOJ believed that neither video in question should be disclosed, and denied access to any portion of the videos. If a final ruling in the case results in an order for disclosure, should DOJ be given the opportunity to analyze the videos in light of that ruling for possible redaction?

As noted in our post on the court of appeals decision, in November 2014 the Democratic Party sought access to 2 videos of training presentations by Brad Schimel who was then running for Attorney General. One video concerned sexual predator cases and the other addressed how to interact with victims of sensitive crimes.  The DOJ denied access. The circuit court issued a writ of mandamus, and the court of appeals affirmed.

According to the petition for review, release of the videos will “re-traumatize victims of sex crimes.” However, as the lower courts explained, the two training videos do not use any case identifying information, all of the information presented is already public, and some of the information would even help parents protect their children from sex crimes.  And, let’s face it. Victims of sex crimes don’t have to request the training videos, watch the training videos, or read any press about the training videos. On the other hand, the taxpayers who elect and pay the salaries of district attorneys might, especially at election time, want insight into their DA’s competence. How does he investigate sex crimes? How does he train staff? How does he view and interact with victims of sex crime?

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