FOX v. BOCK, 149 Wis.2d 403 (1989)
438 N.W.2d 589
Peter D. FOX,
Plaintiff-Appellant,
v.
William F. BOCK,
Racine County Corporation Counsel,
Defendant-Respondent.
Supreme Court No. 87-1853.
Argued 3/28/89. Decided 4/27/1989.
Motion for reconsideration denied,
with $50 costs, on June 20, 1989.
On certification from the court
of appeals.
438 N.W.2d 589
APPEAL from a judgment of the
Circuit Court for Racine County:
Stephen A. Simanek, Judge.
Reversed and remanded.
For the plaintiff-appellant there
were briefs (in court of appeals)
by
Constantine, Christensen, Krohn
& Kerscher,
S.C., Racine, and oral argument
by
Charles H. Constantine.
For the defendant-respondent there
were briefs (in court of appeals)
by
Kenneth F. Hostak, Emily S. Mueller,
and Thompson & Coates, Ltd.,
Racine,
and oral argument by Mr. Hostak.
Amicus curiae briefs (in court of
appeals)
were filed by Linda M. Clifford
and
LaFollette & Sinykin, Madison,
for
Wisconsin Freedom of Information
Council
and the Racine Journal Times; and
by
John K. O'Connell, Madison, for
Wisconsin Counties Association.
STEINMETZ, J.
This appeal was certified to this
court under
the provisions of Section 809.61,
Stats.
We accepted certification.
The issue in this case is whether
a study
conducted by the Institute for
Liability
Management, which was commissioned
by and
prepared for the Racine County
Corporation
Counsel's office, is a record as
that term
is defined in Section 19.32(2),
Stats. [1]
The trial court found it was not
a record.
We hold it was a record.
William F. Bock has been the Racine
County
Corporation Counsel since 1976.
The Deputy Corporation Counsel was
Susan Torok.
In late 1985 and early 1986, Bock
became
concerned about the increasing
number of
civil claims which were being brought
against Racine county and ordered
a study of the problem.
His concerns stemmed in part from
the fact
that Racine county was self-insured.
After making his concerns known
to Leonard
Ziolkowski, then the Racine County
Executive,
sufficient funds were set aside
in the Racine
county budget for the 1986 fiscal
year to
allow Bock to hire a consultant
to conduct
a risk management study of certain
Racine county departments.
The corporation counsel contacted
various consulting firms requesting
bids to conduct the study.
Early in 1986 a contract was entered
into
with the Institute for Liability
Management
of Vienna, Virginia (the Institute)
to
conduct a study at a cost to
Racine county of $24,000.
Prior to the study being prepared
by the
Institute and prior to the Institute
making
a proposal, members of the corporation
counsel's office had conversations
with
representatives of the Institute
about the
Wisconsin Public Records Law and
discussed
their concerns about possible public
access
to any report prepared by the Institute.
Members of the Institute came to
Racine
county to gather information in
early 1987.
Members of the Racine County Sheriff's
Department, Personnel Department,
Corporation Counsel's office and
District
Attorney's office were interviewed.
The study was completed in
March or April of 1987.
In June of 1987 the corporation
counsel
received two written copies of
the study.
The word "draft" was stamped on
each written page of the study.
Although copies of the study were
not
released by the corporation counsel,
at least
two members of the sheriffs department
were
allowed to review the entire document
in the
corporation counsel's offices.
Other members of the sheriffs command
staff
reviewed portions of the document
dealing
with their respective areas of
responsibility.
In addition to preparing the written
report,
the Institute also sent a representative
to
Racine county to conduct briefing
and
training seminars primarily for
members of the sheriffs department.
Two separate seminars were given
to county personnel.
One was a general educational seminar,
and
the other was a briefing seminar
dealing with
specific aspects of the report
and was
directed specifically to members
of the
sheriffs department command staff.
The study and seminars included
recommendations regarding changes
in
certain policies and procedures
of
the county and the sheriffs department.
The Institute's representative spent
four
days in Racine conducting these
seminars and
meeting with various Racine county
employees.
On the first day of his visit, the
deputy
corporation counsel, Torok, told
the
representative certain changes
had to be made in the report.
The corrections included typographical
errors, an obvious error in the
report
dealing with the absence of an
exercise
area in the jail facility and certain
other errors, the nature of which
have not been disclosed.
At the same time that the Institute's
representative was informed that
certain
changes had to be made, he was
also informed
that the existence of the study
had "leaked
out," and that someone had asked
Dennis
Kornwolf, then County Executive
of Racine,
for a copy of the report.
The representative responded that
he would
take the two copies of the report
back to
Washington, and he would wait to
hear
from the corporation counsel before
taking any action.
The Institute still has the two
copies of the
report and, to the best of knowledge
of Bock
and Torok, has taken no steps to
make any
changes in the form or content
of the report
since the copies were returned
to the
Institute by the corporation counsel.
Bock testified he had no intention
of
requesting the study from the Institute
unless he could be assured that
the report,
in whatever form it took, would
not be
subject to inspection by the public.
After the report had been returned
to the
Institute, the Racine county sheriffs
department began implementing certain
changes
in procedures and policies pursuant
to
suggestions contained in the report
and
discussions during the in-service
seminars
conducted by the Institute's representative.
The corporation counsel assisted
briefly in
implementing certain of these changes.
Torok expressed satisfaction with
the
performance of the Institute and
the $24,000
has been paid in full to the Institute
for
the study and seminars.
On July 8, 1987, Peter D. Fox, editor
of the
Journal Times, a Racine county
newspaper,
served a written request on Bock
for a copy
of the study prepared by the Institute.
In a letter dated July 9, 1987,
Bock denied Fox's request stating
various reasons for the denial.
For purposes of this appeal it is
sufficient
to reiterate two of the reasons
for the
denial of the request: Bock
did not have the
report in his possession, and further,
in his
opinion, the report was not a "record"
as
that term is defined in Section
19.32, Stats.
Pursuant to Section 19.37(1), Stats.,
Fox
then filed and served upon Bock
a petition for writ of mandamus.
Later Fox served upon Bock a motion
and
notice of motion to produce
the Institute's study.
One of the affirmative defenses
in the return
to the petition for writ of mandamus
was that
the Institute's study was prepared
in draft
form and did not constitute a record
under
Section 19.32(2).
A hearing on the petition filed
by Fox was
held before the Honorable Stephen
A. Simanek,
Racine county circuit court judge.
The court, after hearing the testimony
of
Bock and Torok and hearing arguments
of
counsel, held that the document
requested
from the corporation counsel was
a "draft"
and not a "record" under Section
19.32(2),
Stats., and therefore, not subject
to
inspection by Fox.
Fox appealed that ruling to
the court of appeals.
Whether a statute applies to a given
set
of facts presents a question of
law.
Such questions are decided independent
of and without deference to the
trial court's decision.
Bucyrus-Erie Co. v. ILHR Department,
90 Wis.2d 408,
280 N.W.2d 142 (1979).
Policy underlying the public records
law
is set forth in Section 19.31,
Stats.:
In recognition of the fact that
a
representative government is dependent
upon
an informed electorate, it is declared
to be
the public policy of this state
that all
persons are entitled to the greatest
possible
information regarding the affairs
of
government and the official acts
of those
officers and employes who represent
them.
Further, providing persons with
such
information is declared to be an
essential
function of a representative government
and
an integral part of the routine
duties of
officers and employes whose responsibility
it is to provide such information.
To that end, Sections 19.32 to 19.37
shall
be construed in every instance
with a
presumption of complete public
access,
consistent with the conduct of
governmental business.
The denial of public access generally
is
contrary to the public interest,
and only in
an exceptional case may access
be denied.
To that end, Section 19.35(1)(a)
provides:
Access to records; fees.
19.35(1) Right to inspection.
19.35(1)(a) Except as otherwise
provided
by law, any requester has a right
to inspect any record.
Substantive common law principles
construing
the right to inspect, copy or receive
copies
of records shall remain in effect.
The exemptions to the requirement
of a
governmental body to meet in open
session
under Section 19.85 are indicative
of public
policy, but may be used as grounds
for
denying public access to a record
only if
the authority or legal custodian
under
Section 19.33 makes a specific
demonstration
that there is a need to restrict
public
access at the time that the request
to
inspect or copy the record is made.
The trial court dismissed the petition
after concluding that this document
was only a draft and therefore
not
subject to disclosure.
The trial court's ruling on this
threshold
question made it unnecessary for
it to apply
the remaining portion of Section
19.35(1),
Stats., which may restrict public
access.
We only discuss the threshold question
of whether this document was a
"draft"
or a "record" and direct the trial
court to apply the latter portion
of Section 19.35(1)(a) on remand.
See, e.g.,
Newspapers, Inc. v. Breier,
89 Wis.2d 417,
279 N.W.2d 179 (1979);
Beckon v. Emery,
36 Wis.2d 510, 516-19,
153 N.W.2d 501 (1967).
State ex rel. Youmans v. Owens,
32 Wis.2d 11,
144 N.W.2d 793 (1966);
State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681-82,
139 N.W.2d 241,
137 N.W.2d 470 (1965).
The term "record" is broadly defined
in
Section 19.32(2), Stats., as
any material on which
written, drawn,
printed, spoken, visual
or electromagnetic
information is recorded
or preserved,
regardless of physical
form or
characteristics, which
has been
created or is being
kept by an authority.
Section 19.32(2) further states
that the term
"record" does not include
drafts, notes,
preliminary computations
and like
materials, prepared
for the originator's
personal use or prepared
by the originator
in the name of a person
for whom the
originator is working
. . . . . . .
Any exceptions to the general rule
of
disclosure must be narrowly construed.
Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984).
In Hathaway we stated:
Section 19.21, Stats.,
in light of
prior cases, must
be broadly
construed to favor
disclosure.
Exceptions should be
recognized for what
they are, instances
in derogation of the
general legislative
intent, and should,
therefore, be narrowly
construed; and
unless the exception
is explicit and
unequivocal, it will
not be held to
be an exception.
It would be contrary
to general well
established principles
of Freedom of
Information statutes
to hold that, by
implication only,
any type of record
can be held from public
inspection.
In
International Union v. Gooding,
251 Wis. 362, 371-72,
29 N.W.2d 730 (1947),
this court analyzed Section 18.01(1),
Stats.,
predecessor to Section 19.21.
The issue before the court was whether
a
petition filed with the Wisconsin
Employment
Relations Board was subject to
inspection.
In determining whether this document
was
subject to disclosure, the court
stated:
It is the rule independently
of statute
that public records
include not only
papers specifically
required to be kept
by a public officer
but all written
memorials made by
a public officer within
his authority where
such writings
constitute a convenient,
appropriate,
or customary method
of discharging
the duties of the
office . . . .
In the case at bar
the petition was
received and given
a file number.
It aroused official
action of the board
resulting in a formal
written opinion
which was also filed.
This appears to us
to indicate that it
is a public record
or at least that it
is a paper in the
hands of a public
official as such officer.
While the petition
itself is not a
memorial by the officer,
it is in
a sense a part of
a docket which
includes the memorial
of an officer
and for the foregoing
reasons
must be considered
to be included
in the description
of papers
affected by Section
18.01(1), Stats.
We think this might
be true even if the
commission could originally
have consigned
the paper to the wastebasket
or have
returned it to its
sender, without
taking formal action
. . . . . .
The court went on to hold that
the document was within the
provisions of Section 18.01(1).
Id. at 372.
In
Youmans,
28 Wis.2d at 679-80,
the court cited Gooding with approval.
In Youmans the Waukesha Freeman
demanded
access to material submitted to
the mayor
by the city attorney of Waukesha
after the
city attorney conducted an investigation
of
alleged misconduct on the part
of members of
the Waukesha Police Department.
This court deemed it unimportant
that
the mayor never received a final
or
formal report from the city attorney.
The court stated:
Defendant mayor as
"head of the . . .
police departments"
is entitled to a
report of any investigation
of the police
department made by
the city attorney.
We deem it wholly immaterial,
on the issue
of whether defendant
was in legal custody
of the papers sought
to be inspected, that
here the city attorney
did not submit a
formal report stating
the conclusions
he had reached as
a result of his
investigation, but
instead merely filed
with the mayor the
statements of
persons interviewed
and
interdepartmental
memoranda.
Whether the document is in "preliminary"
form
and therefore not in final form
is not
determinative of whether it is
a record.
The trial court erred when it found
that the
Institute's study was a draft unless
and
until the final corrections were
made on it.
If the trial court's rulings were
correct,
legal custodians of public records
could
circumvent the effect of Chapter
19, Stats.,
by merely claiming that the report
is
not in final form and further
changes must be made in it.
In this case, on cross-examination,
corporation counsel was asked:
"And the truth of the
matter is you
have no intent
to ever request
that report
with the corrections."
He answered:
"If there's any possibility
that
that report
would be made public
and available
to the public,
then I don't
want the report."
Later when asked if the Institute
had fulfilled its obligation to
the county he stated:
"Well, if
if I keep a written report
from being divulged
to other people,
then I want
one of those, and I
would probably
request it.
If that is not
possible, then I guess
in my opinion
they have completed their
work because
we'll have to operate from
what we can
remember was in the report."
Public policy set forth in Section
19.31,
Stats., favoring public disclosure
does not
allow a custodian of a record to
delay or
cancel delivery of the "final"
report in an
attempt to have it qualified as
a "draft."
The study was not a "draft" for
purposes of the statute.
The Institute's study was delivered,
approved
by Bock and Torok and paid for
by the county.
It was reviewed by not only the
corporation
counsel but members of the sheriffs
department command staff, and a
seminar
was given on the report.
Changes in practices and procedures
in the
sheriffs department demonstrate
that
recommendations of the study have
been implemented.
A determination that a document
is a draft
prepared for the originator's personal
use creates an exception to the
general rule of disclosure.
It is a draft if it is prepared
for and
utilized for the originator's personal
use.
The Institute's study was not created
for
the personal use of the corporation
counsel
nor was it so utilized.
Under Section 19.32(2), Stats.,
a document
prepared for something other than
the
originator's personal use, whether
it
is in preliminary form or stamped
"draft,"
whether recommendations of the
document
are implemented or not, is by
definition a record.
The trial court held that the
corporation counsel was the
originator of the study document.
The Institute was not the originator
because the study was not prepared
for its personal use.
If the corporation counsel's office
was the
originator, it was not the only
office
utilizing the study.
Members of the sheriffs department
and their
command staff were not only allowed
to review
the study, but also were required
to review
the study and attend a seminar
regarding it.
Based upon recommendations in the
study,
policy and procedural changes within
the
sheriffs department are being implemented.
It was used for other than personal
use of
the corporation counsel or the
Institute.
Regardless of who was the originator
of this
document, it does not conform with
the
exclusionary language of Section
19.32(2),
Stats., and therefore it was a
record.
The corporation counsel refused
inspection of
the document based on the statutory
exemption
set forth in Section 19.32(2),
Stats. Such
denial of inspection is contrary
to public
policy and the public interest.
Upon a demand to inspect a record,
"it is incumbent
upon the custodian of
the record
to refuse the demand for
inspection
and state specifically the
reasons
for this refusal"
when the custodian determines that
the
harmful effect of permitting inspection
outweighs the benefit to be gained
by
allowing inspection.
Youmans,
28 Wis.2d at 682.
In
Newspapers,
89 Wis.2d at 426-27,
the court stated:
Nevertheless, we have
concluded, where
common-law limitations
on the right to
examine records and
papers have not been
limited by express
court decision or by
statute, that presumptively
public records
and documents must
be open for inspection.
We stated in
Youmans, relying on
Section 19.21(1) and (2), Stats.:
. . that public policy
favors the right
of inspection of public
records and
documents, and it
is only in the
exceptional case that
inspection
should be denied.
. . . (at 683)
In
Beckon v. Emery,
36 Wis.2d 510, 516,
153 N.W.2d 501 (1967),
we stated that the "public policy,
and hence
the public interest, favors the
right of
inspection of documents and public
records."
See, also
State ex rel. Dalton v. Mundy,
80 Wis.2d 190, 196,
257 N.W.2d 877 (1977).
These cases restate the legislative
presumption that, where a public
record
is involved, the denial of inspection
is
contrary to the public policy and
the public
interest.
In Beckon, 36 Wis.2d at 518, we
stated:
We pointed out in Youmans
that if an
action were brought
to compel the
production of documents
the officer could
then, if he wished,
stand upon the reasons
given, and the documents
could be examined
by the court in camera
to determine
whether in light of
the reasons specified
the inspection of
the documents would
cause harm to the
public interest that
would outweigh the
presumptive benefit to
be derived from granting
inspection.
We further stated in
Newspapers,
89 Wis.2d at 427:
To implement this presumption,
our
opinions have set
out procedures and legal
standards for determining
whether
inspection of records
is mandated by the
statute.
In the first instance,
when a demand to
inspect public records
is made, the
custodian of the records
must weigh the
competing interests
involved and determine
whether permitting
inspection would result
in harm to the public
interest which
outweighs the legislative
policy
recognizing the public
interest in
allowing inspection.
Beckon v. Emery,
supra at 516;
Youmans,
supra at 682.
If the custodian decides not to
allow
inspection, he must state specific
public-policy reasons for the refusal.
These reasons provide a basis for
review in the event of court action.
Beckon,
supra at 518;
Youmans,
supra at 682.
The custodian of the records must
satisfy the
court that the public-policy presumption
in
favor of disclosure is outweighed
by even
more important public-policy considerations.
Whether harm to the public interest
from
inspection outweighs the public
interest
in inspection is a question of
law.
The duty of the custodian is to
specify
reasons for nondisclosure and the
court's
role is to decide whether the reasons
asserted are sufficient.
It is not the trial court's or this
court's
role to hypothesize reasons or
to consider
reasons for not allowing inspection
which
were not asserted by the custodian.
If the custodian gives no reasons
or gives
insufficient reasons for withholding
a public
record, a writ of mandamus compelling
the
production of the records must
issue.
Beckon,
supra at 518, states,
"There is an absolute
right to inspect a
public document
in the absence of
specifically
stated sufficient
reasons to the
contrary."
Upon a demand for inspection, the
custodian
of the document bears the burden
of proof of
facts demonstrating that it is
a draft.
The decision that a document is
a draft
under Section 19.32(2), Stats.,
is a legal conclusion.
However, if there exists a factual
dispute,
the custodian has the burden of
producing
evidence and persuading the finder
of fact
that the proffered facts are true.
Hochgurtel v. San Felippo,
78 Wis.2d 70, 86-87,
253 N.W.2d 526 (1977).
The custodian must satisfy the finder
of fact
by the greater weight of the credible
evidence that the document is a
draft.
Merely labeling each page of the
document
"draft" does not make the document
a draft as
that term is defined in Section
19.32(2),
Stats. Similarly, corporation
counsel cannot
keep the document classified as
a draft by
not having the final corrections
made on it.
It was not prepared for the personal
use of the corporation counsel.
It was a report completed, paid
for and
relied upon by the county and therefore
it
does not comport with the exclusions
set
forth in the public access statute.
The decision of the trial court
is reversed
and the case is remanded for the
application
of Beckon and Newspapers.
By the Court.
The judgment of the
Racine county
circuit court is reversed
and cause
remanded for further
proceedings
consistent with this
opinion.
ABRAHAMSON, J., took no part.
[1]
Section 19.32(2), Stats., provides
as
follows:
"Record" means any material on which
written, drawn, printed, spoken,
visual
or electromagnetic information
is recorded
or preserved, regardless of physical
form
or characteristics, which has been
created
or is being kept by an authority.
"Record" includes, but is not limited
to,
handwritten, typed or printed pages,
maps,
charts, photographs, films, recordings,
tapes (including computer tapes),
and
computer printouts.
"Record" does not include drafts,
notes,
preliminary computations and like
materials
prepared for the originator's personal
use or
prepared by the originator in the
name of a
person for whom the originator
is working;
materials which are purely the personal
property of the custodian and have
no
relation to his or her office;
materials to which access is limited
by
copyright, patent or bequest; and
published
materials in the possession of
an authority
other than a public library which
are
available for sale, or which are
available
for inspection at a public library.
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