Albert D. Moustakis v. State of Wisconsin Department of Justice
880 N.W.2d 142
Wis.2016Background
- The Lakeland Times requested DOJ records concerning allegations and an investigation into Vilas County District Attorney Albert Moustakis.
- DOJ reviewed, redacted, and prepared records responsive to the request and provided Moustakis with a copy as a professional courtesy before releasing to the requester.
- Moustakis sued under Wis. Stat. § 19.356(4) seeking to enjoin DOJ from releasing the records, asserting he was entitled to pre-release notice and judicial review as an “employee.”
- DOJ moved to dismiss, arguing Moustakis is not an “employee” under the public records law definition and thus not entitled to the § 19.356(2)(a)1. pre-release protections; the circuit court and court of appeals agreed and dismissed.
- The Wisconsin Supreme Court reviewed whether a district attorney qualifies as an “employee” under Wis. Stat. § 19.32(lbg) for purposes of § 19.356(2)(a)1., and whether that entitles him to notice and pre-release judicial review.
- The Court held a district attorney occupies a state public office and is not an “employee” under § 19.32(lbg); therefore Moustakis may not maintain an action under § 19.356(4) to restrain DOJ’s release. The case was remanded to address other claims left in circuit court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a district attorney is an “employee” under Wis. Stat. § 19.32(lbg) for § 19.356(2)(a)1. pre-release protections | Moustakis: although he holds state public office, he also is employed by the State (an employer other than an “authority”) and thus fits the second clause of § 19.32(lbg) | DOJ: Moustakis holds a state public office and is thus excluded from the statutory definition of “employee”; the two clauses are interconnected so he cannot satisfy the second clause | Held: Moustakis is not an “employee” under § 19.32(lbg); district attorneys are state public officers and excluded from § 19.356(2)(a)1. protections |
| Whether records at issue fall within the § 19.356(2)(a)1. exception (investigation into disciplinary or employment-related violation) | Moustakis: records result from an investigation into alleged misconduct and thus trigger the exception | DOJ: (alternative) even if investigated, Moustakis is not an employee entitled to the exception; also DOJ balanced disclosure and redacted records | Held: Because Moustakis is not an “employee,” § 19.356(2)(a)1. does not apply; court did not resolve merits of whether the documents fit the investigatory description |
| Whether § 19.356(9)(a)-(b) notice/augmentation rule alters the definition of “employee” in § 19.32(lbg) | Moustakis: § 19.356(9) uses the word “employee” in a way that shows statute must include state public officers; thus the defined term should be read into § 19.356(9) to afford him protections | DOJ/Majority: § 19.356(9) is a distinct, narrower notice/augmentation mechanism; the word "employee" there modifies "record subject" and does not rewrite the statutory definition in § 19.32(lbg) | Held: The use of “employee” in § 19.356(9) does not change the § 19.32(lbg) definition; an individual can be an officer (covered by § 19.356(9)) without being an “employee” for § 19.356(2)(a)1. purposes |
| Whether DOJ’s provision of notice as a “courtesy” satisfied any statutory notice obligation | Moustakis: (in concurrence) DOJ failed to show required § 19.356(9) notice was given and that failure precludes lawful release | DOJ/Majority: DOJ contends it provided notice as courtesy and § 19.356(2)(a)1. did not apply because Moustakis is not an employee | Held: Majority did not decide any § 19.356(9) violation; concurrence would have reinstated the action on § 19.356(9) notice grounds but was not the majority view |
Key Cases Cited
- Woznicki v. Erickson, 202 Wis. 2d 178 (1996) (prior Wisconsin case that recognized public employees’ right to notice and pre-release review, prompting later legislative limits)
- Milwaukee Teachers’ Educ. Ass’n v. Milwaukee Bd. of Sch. Dirs., 227 Wis. 2d 779 (1999) (similarly recognized pre-release rights for public employees, leading to statutory refinement)
- Journal Times v. Police & Fire Comm’rs Bd., 362 Wis. 2d 577 (2015) (statutory interpretation principles applied; courts review statutes de novo)
- Schill v. Wisconsin Rapids School Dist., 327 Wis. 2d 572 (2010) (discusses public access policy and transparency in governmental records)