Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2016 WI 100

Background

In Sept. 2014 the Democratic Party of Wisconsin requested recordings of Brad Schimel’s prosecutor training presentations (May 14, 2013 and June 17, 2009) from the Wisconsin DOJ under the Public Records Law.
DOJ record custodian Kevin Potter identified two responsive videos (2009: online child-exploitation prosecution techniques; 2013: prosecution account of a high‑profile sex‑extortion case) and denied release after applying the public‑policy balancing test, giving specific reasons for each tape.
The Democratic Party sought a writ of mandamus; the circuit court reviewed the videos in camera, found no misconduct, and ordered disclosure; the court of appeals affirmed. Disclosure was stayed pending appeal.
The Supreme Court reviewed de novo whether the custodian’s nondisclosure justification outweighed the statutory presumption of access and whether exceptions applied.
The Court held the custodian’s reasons were sufficient: the 2009 tape risked revealing law‑enforcement techniques that could be used to evade prosecution; the 2013 tape was the oral functional equivalent of a prosecutor’s closed file and disclosure would risk re‑traumatizing victims and impair reporting/cooperation. The writ was denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the public‑policy balancing test required disclosure of the 2009 training video	Video educates parents and techniques are already publicly known; public interest in openness and oversight	Release would reveal specific local prosecution and undercover techniques and risk circumvention of law; custodian provided specific reasons	Held for DOJ: nondisclosure justified—public‑harm risk from revealing tactics outweighs presumption of access
Whether the 2013 presentation is exempt as a prosecutor’s file under the Foust common‑law exception	Tape is a public account; no identified victims on tape; public value and oversight interest favor disclosure	Tape is an oral equivalent of a prosecutor’s closed file containing charging rationale and case history; Foust exception applies	Held for DOJ: Foust exception applies and/or balancing favors nondisclosure because tape is functional equivalent of prosecutorial file
Whether victims’ privacy and constitutional victims‑rights protections weigh against disclosure	Any identifying details are absent; public interest may override speculative re‑traumatization; redaction could address concerns	Disclosure would likely enable identification/re‑victimization, chill reporting/cooperation, and violate Art. I, § 9m and statutes protecting child victims	Held for DOJ: victim‑privacy and need to protect reporting/cooperation substantially outweigh presumption of disclosure
Whether redaction (or transcript redaction) could render release possible	Courts should narrowly construe exceptions and release redacted portions per Wis. Stat. § 19.36(6); DOJ offered only speculation about futility	Custodian reviewed tapes and concluded redaction would be meaningless/ineffective because nondisclosable content permeates recordings	Held for DOJ: redaction would be ineffective here; custodian’s assessment that redaction would be meaningless is supported by the record

Key Cases Cited

State ex rel. Richards v. Foust, 165 Wis. 2d 429 (Wis. 1991) (recognized common‑law exemption for prosecutorial files)
Linzmeyer v. Forcey, 254 Wis. 2d 306 (Wis. 2002) (useful FOIA factors and framework for withholding law‑enforcement records that would disclose investigative techniques)
Hempel v. City of Baraboo, 284 Wis. 2d 162 (Wis. 2005) (custodian discretion and case‑by‑case balancing under Public Records Law)
Nichols v. Bennett, 199 Wis. 2d 268 (Wis. 1996) (presumption of access; substance over form in records analysis)
Newspapers, Inc. v. Breier, 89 Wis. 2d 417 (Wis. 1979) (balancing test framework for public records disclosure)
Schilling v. Crime Victims Rights Bd., 278 Wis. 2d 216 (Wis. 2005) (constitutional and statutory protections for crime victims are important considerations in balancing)