STATE оf Wisconsin EX REL. Thomas R. MORKE, Petitioner-Appellant,† v. Jennifer DONNELLY, Respondent.
No. 88-1061
Court of Appeals
Submitted on briefs March 8, 1989.—Decided May 18, 1989.
444 N.W.2d 730
†Petition to review granted.
For the respondent the cause was submitted on the brief of Donald J. Hanaway, attorney general, and Frank D. Remington, assistant attorney general.
Before Gartzke, P.J., Dykman and Eich, JJ.
GARTZKE, P.J. Thomas Morke appeals from an order quashing his petition for an alternative writ of mandamus to compel disclosure of public records by Jennifer Donnelly, records custodian of the department of health and social services, under
According to his petition, while an inmate of a Wisconsin correctional institution, Morke read a newspaper report that hacksaw blades had been found in an inmate‘s cell at Waupun Correctional Institution and investigators were looking for a gun said to have been smuggled into the prison. Waupun is a maximum security prison. Morke requested from the Waupun records custodian copies of relevant incident reports, the request by the correctional officers’ union representative for a lockdown and search as a result of the hacksaw/gun incident, and the prison superintendent‘s reply. The prison records custodian declined on grounds that the material was “subject to an ongоing and sensitive investigation which deals with the safety and security of the institution.”
Morke‘s petition shows that he then requested Donnelly to review the decision by the prison records custodian. He advised Donnelly that the records “will not bе used for any unlawful purpose.” Donnelly informed him that no record existed of the union representative‘s request and the prison superintendent‘s response, since both were oral. She denied the balance of his request because an investigation was continuing and “disclosure of the records would present an increased risk that you or other prisoners would defeat our security measures, thereby presenting the possibility of an escаpe attempt or violent incident within our institutions. Disclosure would be of clear overriding harm to the public interest.”
A trial court‘s decision to grant or deny a petition for mandamus will be upheld unless the court abused its discretion. State ex rel. Kurkierewicz v. Cannon, 42 Wis. 2d 368, 375-76, 166 N.W. 255, 258 (1969). A trial court abuses its discretion if it exercises its discretion on the basis of an error of law. State v. Hutnik, 39 Wis. 2d 754, 763, 159 N.W.2d 733, 737 (1968).
Morke claims the court erred as a matter of law by dismissing his petition without inspecting the records he sought. He relies on State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 682, 137 N.W.2d 470, 475 (1965). The Youmans court held that if an action is brought to compel inspection of public records and the records custodian relies upon harm to the public interest when refusing an inspection,
the proper procedure is for the trial judge to examine in camera the record or document sought to be inspected. Upon making such in camera examination, the trial judge should then make his determination of whether or not the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspection.
We conclude that because their contents are undisputed, the trial court was not required to inspect the documents. When a demand is made for an inspection under the public records law, the custodian has the burden of persuading the finder of fact that the proffered facts are true if a factual dispute exists. Fox v. Bock, 149 Wis. 2d 403, 417, 438 N.W.2d 589, 595 (1989). Conversely, if no factual dispute exists, the custodian need not prove to the finder of fact that the proffered facts are true.
The custodian conceded that Morke‘s petition accurately set forth the pertinent facts. Morke‘s petition describes the requested documents as “any and all Form C-98 incident reports, which have bеen made regarding that hacksaw/gun incident.” That the incident occurred and that an investigation followed is undisputed.
Morke does not challenge these facts. He challenges only the custodian‘s conclusion that the dоcuments involve “sensitive matters of prison security.” The challenge is absurd. The reports regarding the “hacksaw/gun incident” necessarily involve a security matter. Indeed, Morke attempted to assure Donnelly in his request that he wоuld not use the records “for any unlawful purpose or for any purpose which would . . . threaten the security . . .” of a correctional facility.
Moreover,
The undisputed nature of the records provides ample support for the custodian‘s explanation of her refusal to allow public access to the records. The trial court need not undertake a useless examination to determine whether the records are as Morke described them.
By the Court.—Order affirmed.
DYKMAN, J. (dissenting). The majority concludes that it will accеpt the record custodian‘s assertion as to the contents of the records Morke requests. The majority has no idea what those records contain or whether the custodian‘s conclusions are correct. Nоr does the majority‘s reason for refusing to follow State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965), withstand scrutiny. Youmans requires an in camera inspection to test the custodian‘s reasons for refusing the demand for information:
The duty of first determining that the harmful effect upon the public interest of permitting inspection оutweighs the benefit to be gained by granting inspection rests upon the public officer having custody of the record or document sought to be inspected. If he determines that permitting inspection would result in harm to the public interest which
outweighs any benefit that would result from granting inspection, it is incumbent upon him to refuse the demand for inspection and state specifically the reasons for this refusal. If the person seeking inspection thereafter institutes court action to compel inspection and the officer depends upon the grounds stated in his refusal, the proper procedure is for the trial judge to examine in camera the record or document sought to bе inspected. Upon making such in camera examination, the trial judge should then make his determination of whether or not the harm likely to result to the public interest by permitting the inspection outweighs the benefit to be gained by granting inspectiоn. (Footnote omitted.)
28 Wis. 2d at 682, 137 N.W.2d at 475 (footnote omitted).
The Youmans rule was recently reaffirmed in Fox v. Bock, 149 Wis. 2d 403, 438 N.W.2d 589 (1989). The court said: “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.” Fox, 149 Wis. 2d at 417, 438 N.W.2d at 595 (citing Hochgurtel v. San Felippo, 78 Wis. 2d 70, 86-87, 253 N.W.2d 526 (1977)). Morke asserts that the custodian‘s claim that disclosure of the records would threaten prison security is false and that the custodian has misrepresented the records as “sensitive information regarding [an] escape.” A factual dispute exists.
I, like the majority, suspect that the records Morke requested could be denied him because they would reveal strategy for crime detection or prevention. Suspicions, however, are not the stuff of which rules of law are usually made. “[P]ublic policy favors the right of inspection and it is only in the exceptional case that inspection should be denied.” Hathaway v. Green Bay School Dist., 116 Wis. 2d 388, 396, 342 N.W.2d 682, 686 (1984)
Because Morke is a prisoner demanding information about guns and hacksaws, the majority‘s opinion initially seems reasonable. However, Wisconsin‘s open records law does nоt differentiate on the basis of the status of the person requesting the records. Had a request for the reports been made by The Capital Times or The Milwaukee Sentinel, the majority‘s holding would be the same. The challenged assertions of the record custodian would not be confidentially reviewed by the circuit court. The supreme court has warned of the efforts of unreviewed government secrecy: “[I]f the media is denied access to the affairs of government, the public for аll practical purposes is denied access as well. A democratic government cannot long survive that burden.” State ex rel. Newspapers v. Showers, 135 Wis. 2d 77, 81, 398 N.W.2d 154, 156 (1987).
The majority concludes that it is absurd to suggest that a “hacksaw/gun incident” would not involve a security matter. But if thе “incident” were fabricated as evidence that the legislature should provide more financial support for prisons, security would not be implicated, but effective government would be. Requiring a judge to spend a few minutes reviewing secret reports seems a small price to pay to insure that matters that should receive public scrutiny are not totally hidden
Because this opinion is published, and published opinions of the court of appeals have statewide precedential effect,