¶ 1. Albert Moustakis, the Vilas County District Attorney, appeals an order dismissing his action under Wis. Stat. § 19.356(4) to enjoin the Wisconsin Department of Justice (DOJ) from releasing certain records pertaining to Moustakis in response to a public records request.
BACKGROUND
¶ 2. On July 18, 2013, The Lakeland Times, a regional newspaper serving parts of northern Wisconsin, submitted a request for records to the DOJ.
¶ 3. The DOJ's public records custodian, attorney Kevin Potter, referred the request to the DOJ's Division of Criminal Investigation and Division of Legal Services to prepare a response. On February 17, 2014, Potter approved the proposed response for release, which consisted of redacted records and a cover letter. On February 19, Potter left Moustakis a voice message advising him that the DOJ would be releasing records responsive to The Lakeland Times' request. On February 21, prior to release of the records, Potter's assistant mailed a copy of the approved response to Moustakis.
¶ 4. On March 6, 2014, Moustakis notified Potter he would be commencing an action and requested that the DOJ withhold production of the records until the action's resolution. Moustakis filed this action on March 10, seeking an order under Wis. Stat. § 19.356(4) restraining the DOJ from providing access to the requested records.
¶ 5. The DOJ filed a motion to dismiss on May 23, 2014. The motion asserted that the records set for release were not of a type identified by Wis. Stat. § 19.356(2)(a) as requiring prerelease notice or judicial review. The DOJ reasoned that Moustakis did not qualify as an "employee," as that term is defined by Wis. Stat. § 19.32(lbg), and therefore the records did not contain "information relating to an employee" under § 19.356(2)(a)l. Accordingly, the DOJ asserted that Moustakis had no standing to bring the present action. The DOJ further argued Potter provided Moustakis the records intended for release as nothing more than a "professional courtesy," and the DOJ was not required to do so by any statute.
¶ 6. The circuit court held oral argument on the motion on June 27, 2014, and delivered its oral ruling on July 1. The court determined that the term "employee," as used in Wis. Stat. § 19.356(2)(a)l., did not include Moustakis because that term, as defined by Wis. Stat. § 19.32(lbg), specifically excluded "an individual holding local public office or a state public office." The court determined that various statutes cross-referenced by the public records law unambiguously established that district attorney is a "state
¶ 7. The circuit court also observed that on June 25, 2014, Moustakis had filed an amended complaint alleging two additional causes of action, the first seeking a writ of mandamus and the second asserting an as-applied challenge to the constitutionality of Wis. Stat. § 19.356. There was some dispute at the July 1 decision hearing as to whether the order resulting from that hearing would be final for purposes of appeal. The DOJ moved to dismiss Moustakis's subsequent appeal from that order, which motion we denied. We ordered that, if the order was not appealable as a matter of right, leave was granted to appeal the nonfinal order.
DISCUSSION
¶ 8. " 'Standing' is a concept that restricts access to judicial remedy to those who have suffered some injury because of something that someone else has either done or not done." Three T's Trucking v. Kost,
¶ 9. Although there are multiple formulations of the test for standing, the "essence of the question ... is whether there is an injury and whether the injured interest of the party whose standing is challenged falls within the ambit of the statute . . . involved." Foley-Ciccantelli v. Bishop's Grove Condo. Ass'n,
¶ 10. "Judicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute." State ex rel. Kalal v. Circuit Court for Dane Cnty.,
¶ 12. The public records law is a fundamental concept in our state's history of transparent government. Journal Times v. City of Racine Bd. of Police & Fire Comm'rs,
¶ 13. These principles are put into practice by Wis. Stat. § 19.35, which provides for the right of the public to inspect government records and includes provisions governing, among other things, the payment of fees and the time by which to comply with a request for records. The legislature recognized that some records that are subject to disclosure would
¶ 14. Generally speaking, record subjects are not entitled to notice that a record concerning them will be released, nor are they entitled "to judicial review of the decision of an authority to provide a requester with access to a record." Wis. Stat. § 19.356(1). However, the legislature has excluded three narrow categories of records from this general rule, which categories are defined by Wis. Stat. § 19.356(2)(a)1.-3. An "authority" intending to release records falling within the ambit of one of these categories must provide notice to the record subject. Para. 19.356(2)(a); see also Wis. Stat. § 19.31(1) (defining "authority"). After receiving notice, the record subject has five days to notify the authority of his or her intent to seek a court order enjoining release of the records, and ten days to commence an action seeking such relief. Wis. Stat. § 19.356(3), (4).
¶ 15. In this case, Moustakis asserts he is entitled to bring an action to enjoin release because the records responsive to The Lakeland Times' request qualify under Wis. Stat. § 19.356(2)(a)1. That subdivision concerns a record "containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer." Id. We conclude the records at issue in this case cannot qualify under § 19.356(2)(a)1. because Moustakis is not an "employee," and therefore the records do not contain information "relating to an
¶ 16. As indicated, "employee" is a defined term within the public records law. An "employee" is "any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority." Wis. Stat. § 19.32(1bg). "Authority" is also a defined term within the public records law, and includes a vast number of governmental entities "having custody of a record," including, as relevant here, "a state or local office." Wis. Stat. § 19.32(1).
¶ 17. Moustakis concedes he cannot qualify as an "employee" within the first category due to Wis. Stat. § 19.32(1bg)'s exclusionary clause removing state public office holders from that definition. As a district attorney, Moustakis is without dispute an individual holding a "state public office," which is another of the public record law’s defined terms. See Wis. Stat. § 19.32(4). That definition cross-references Wis. Stat. § 19.42(13), which provides that, among other things, a "state public office" includes "all positions identified under s. 20.923(2)." Wis. Stat. § 19.42(13)(c). In turn, Wis. Stat. § 20.923(2) identifies constitutional officers and other elected state officials, among them district attorneys. See Wis. Stat. § 20.923(2)(j). Thus, Moustakis, as a district attorney, is the holder of a "state public office" and does not qualify as an "employee" of an "authority" under the first category of employees established by § 19.32(1bg).
¶ 18. Moustakis nonetheless argues that, although he does not qualify as an "employee" of an "authority," he falls within the second category of employees established by Wis. Stat. § 19.32(1bg), those who are "employed by an employer other than an authority." In other words, Moustakis argues we need not even reach the exclusionary clause in the first category of "employees," because he is not employed by an "authority" in the first instance. Moustakis reaches
¶ 19. Moustakis asserts he is not employed by an "authority" because he is employed by the State of Wisconsin, which is not specifically identified as an "authority" under Wis. Stat. § 19.32(1). Thus, as Moustakis's theory goes, he qualifies as an "employee" under Wis. Stat. § 19.32(1gb) because he is "employed by an employer other than an authority." Moustakis acknowledges the difficulty with this argument: an "authority" includes a "state office." Subsec. 19.32(1). As a result, Moustakis argues that although his elected office is an "authority," he is not an employee of that office because "his employment derives from the State Constitution, as well as the salary-fixing statutes which classify him as holding 'state public office.'" See Wis. Const. art. VI, § 4; Wis. Stat. § 19.32(4); Wis. Stat. § 19.42(13)(c); Wis. Stat. § 20.923(2)(j).
¶ 20. Moustakis's construction of Wis. Stat. § 19.32(1) is unsupported by the authorities he cites and is contrary to any reasonable reading of the statute. The distinction Moustakis seeks to draw between "holding" a state public office and being "employed" by a state public office is entirely of his making. Moustakis is a district attorney, which, as we have indicated, is a "state public office" under the statutes Moustakis cites. A state office is an "authority" as that term is defined in § 19.32(1), and, but for the exclusionary clause in Wis. Stat. § 19.32(1bg), Moustakis would qualify as an "employee" under the first category as an "employee" employed by an "authority." That Moustakis would otherwise qualify as an "employee" of an "authority" means that he cannot also be employed by "an employer other than an authority."
¶ 21. Moustakis argues that an interpretation excluding anyone holding "state public office" from the definition of "employee" is inconsistent with another of the public record law's provisions, Wis. Stat. § 19.356(9), which provides that certain individuals are entitled to notice of the pending release of a record and to supplement the released record. As relevant here, that statute provides:
Except as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit access to a record containing information relating to a record subject who is an officer or employee of the authority holding a local public office or a state public office, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on the record subject, either by certified mail or by personally serving the notice on the record subject.
Para. 19.356(9)(a) (emphasis added). Based on the italicized language, Moustakis asserts Wis. Stat. § 19.32(1bg)'s definition of "employee" must also include some individuals who hold local or state public office. Otherwise, Moustakis contends, the term "employee" in § 19.356(9)(a) is mere surplusage.
¶ 22. As an aside, it is important to note what Moustakis is not arguing. He does not contend the language of Wis. Stat. § 19.356(9)(a) creates ambiguity regarding the definition of "employee" in Wis. Stat. § 19.32(1bg). Ambiguity exists when a statute is "capable of being understood by reasonably well-informed
¶ 23. While Wis. Stat. § 19.356(9)(a) could be better drafted, this shortcoming does not establish that Moustakis unambiguously is an "employee" under Wis. Stat. § 19.32(1bg). Moustakis attempts to insert the definition of the term "employee" into § 19.356(9)(a), which is an otherwise reasonable thing to do but for the fact that it creates a befuddling mess of that statute. Rather, we conclude the phrase "who is an officer or employee of the authority holding a local record office or state public office" was intended to be
¶ 24. At the end of this winding statutory path lies the inescapable conclusion that Moustakis is not an "employee" within the meaning of Wxs. Stat. § 19.32(1bg). This means the records requested by The Lakeland Times do not "relate" to Moustakis as "an employee" under Wis. Stat. § 19.356(2)(a)1. Because the records do not fall within this narrow exception to the general rule that a "record subject" is not entitled to advance notice or judicial review of the release of records pertaining to that record subject, Moustakis lacks standing to bring this action under Wis. Stat. § 19.356(4). Thus, the circuit court properly dismissed Moustakis's claim under Wisconsin's public records law.
By the Court. — Order affirmed and cause remanded for further proceedings.
Notes
All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise noted.
The Intervenor, Steven Lucareli, is not the original records requester, but filed a motion to intervene in this action after filing his own open records request seeking the same records sought by the Lakeland Times. The DOJ denied Lucareli's records request on April 21, 2014, citing the present litigation.
Wisconsin Stat. § 19.356(4) permits a "record subject," no more than ten days after receiving notice under § 19.356(2)(a), to "commence an action seeking a court order to restrain the authority from providing access to the requested record."
Potter averred by affidavit that he provided Moustakis with notice and a copy of the records to be released "as a professional courtesy because [Moustakis] is a locally prominent law enforcement official and because the records to be released pertained to unsubstantiated allegations about Mr. Moustakis." Potter further averred that it is not unusual for the DOJ to provide courtesy notice, not required by any law, to persons named in or related to records identified for release in response to a public records request.
Given this procedural history, including an August 6, 2014 order from the circuit court, it appears there remain two causes of action stayed and pending before the circuit court, which causes of action are not at issue in this appeal. Accordingly, we remand this case to the circuit court for further proceedings consistent with this opinion.
The DOJ argues the records at issue in this case do not otherwise qualify under Wis. Stat. § 19.356(2)(a)1. because they do not relate to a disciplinary matter or an employment-related violation of law, and because § 19.356(2)(a)1. applies "only to investigative documents actually prepared by the employee's employer." Because we resolve the case on alternative grounds, we need not address these issues. See Gross v. Hoffman,
The full text of Wis. Stat. § 19.32(1) is as follows:
"Authority" means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, council, department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order; a governmental or quasi-governmental corporation except for the Bradley center sports and entertainment corporation; a special purpose district; any court of law; the assembly or senate; a nonprofit corporation which receives more than 50% of its funds from a county or a municipality, as defined in s. 59.001 (3), and which provides services related to public health or safety*751 to the county or municipality; a university police department under s. 175.42; or a formally constituted subunit of any of the foregoing.
It is well established that legislative history may be consulted to "confirm or verify a plain-meaning interpretation." State ex rel. Kalal v. Circuit Court for Dane Cnty.,