Watton v. Hegerty

Group, Law Watton Michael J. Watton d/b/a † Petitioner-Appellant, v. Hegerty Police and Chief of H. Nanette for the custodian of records as official Department, Police of Milwaukee Respondent-Respondent-Petitioner. Court

Supreme 4, 2008. argument April Oral No. 2006AP3092. July —Decided 2008 WI 369.) (Also reported in 751 N.W.2d J., Gableman, denied for reconsideration † Motion 9/8/08. participate. did not respondent-respondent-petitioner

For the the cause argued by city Swank, was Melanie R. assistant attor- ney, Langley, city with whom on the briefs was F. Grant attorney, Milwaukee. petitioner-appellant by

For the there was a brief Maloney, Watton, J. Michael Michael J. and Watton Law Group, argument by Milwaukee, and oral Michael J. Watton. McGlynn

An amicus brief was filed Maureen Flanagan, attorney general, assistant and J.B. Van attorney general, Hollen, on behalf of the Wisconsin Department of Justice. Godlewski,

An amicus brief was filed James G. Lawyers Neenah, on behalf of the Government Division Municipal Lawyers of the State Bar and International argument by Association, and oral James G. Godlewski. ¶ 1. PATIENCE ROGGENSACK, DRAKE J. We appeals1 reversing review decision of the court of denying peti- circuit court2 order Michael J. Watton's petition tion for a writ mandamus. Watton filed a for 1 Hegerty, Watton v. WI App 306 2dWis.

N.W.2d 619. Fiorenza, The Honorable Clare L. presided. compel production of the state-

a writ of mandamus to by City emergency kept the of detention3 ments of presented Department. The issue is Milwaukee Police pursuant created emergency of detention are Statements (2005-06). 51.15(l)(a) (4)(a) Those sections and to Wis. Stat. in respectively, part: relevant provide, detention, (a) (1) A officer or other Basis for law enforcement custody or person child into under ch. 48 to authorized to take a juvenile custody may an into under ch. 938 take individual take a custody person to believe that the if the officer or has cause into mentally ill, drug dependent, developmentally is is or individual any following: disabled, and the individual evidences of that probability physical to himself A of harm or 1. substantial by attempts of of recent threats or herself as manifested evidence bodily or harm. at suicide serious probability physical persons of to other 2. A substantial harm by or other violent as evidence of recent homicidal manifested by placed part, on or her or evidence that others behavior his physical harm of violent behavior and serious reasonable fear act, them, attempt or threat to do as evidenced a recent overt physical part. harm on his or her serious probability physical impairment injury A of or substantial impaired judgment, or as manifested himself herself due to . . . of recent act or omission. evidence (a) (4) County, procedure; In counties Detention Milwaukee 500,000 more, population having law enforcement of or custody person authorized to take a child into officer or other juvenile custody ch. 48 to take a into under ch. shall under or sign provide of detention shall a statement which act, specific concerning the recent overt detailed information attempt, or threat to act omission on which the belief under sub. or (1) observing persons reporting of the or is based and names act, attempt, or threat to act omission. The law recent overt or person designate required to enforcement officer or other is not mentally ill, subject individual is statement whether disabled, drug dependent, allege developmentally shall that or but one he has to believe that the individual evidences or she cause or other more of these conditions. The law enforcement officer upon open request City whether, an to the record^ Department, provisions Milwaukee Police of the Mental preclude Act, Health ch. 51 of the Statutes, Wisconsin duplicate copies disclosure of gency of statements of emer- possession police detention are in department, absent written informed consent aor court does; order. We conclude it therefore, we appeals. reverse the decision the court of I. BACKGROUND4 September ¶ 2. 8, 2006, On Watton hand- open request delivered an to the Mil- Department,5 pursuant waukee Police to Wis. Stat. §§ requested pertain- 19.31-39.6 Watton two documents

person deliver, delivered, shall be or cause to the statement the to facility upon delivery detention the of the individual to it. subsequent All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

4 purposes For of appeal, this the facts of this not case are in dispute.

5At the request, Hegerty time of the was Nannette City Department. Chief, Chief of the of Milwaukee Police As she police department's was the official records custodian. Accord ingly, for the of opinion, remainder we refer to as this her "the custodian." §§ Wisconsin Stat. 19.31-39 open constitute Wisconsin's records law. perti §§ Wisconsin Stat. 19.35 and 19.36 most They provide, nent here. respectively, part: in relevant (1) (a) records; Right inspection, Except 19.35 Access to to fees. provided by law, any requester right inspect as otherwise has a to any principles right construing record. Substantive common law inspect, copy copies of to or receive shall in remain effect. exemptions requirement governmental body The to the of a meet to open public policy, may session under s. 19.85 of are indicative but grounds denying only used public be as for access to a record if the authority legal specific or custodian s. under 19.33 makes a demon- public stration that there a need is to restrict access at the time that request inspect copy or to the record is made. Sidney Gray7 ing are relevant to this Rente to (1) emergency signed appeal:8 detention statement of Gray Sidney June 13 or created on about for Rente (2) emergency signed 14, 2006; and statement June January Sidney Gray Rente created in for detention 2006. through designee 2006, at her On October 3. Department, City the records of Milwaukee Police (1) withholding. upon Application access and 19.36 Limitations Any exempted specifically from record which is of other laws. exempted from or federal law or authorized to be disclosure state 19.35(1), exempt is from disclosure under s. state law disclosure any public portion except of that record which contains (6). provided open public inspection as sub.

information is Gray aliases, by nine six request The records referred to Notwithstanding of birth. the alternate addresses and two dates Gray, there is the custodian states identities Watton ascribed identity of the individual Watton refers to no confusion over the request. in his records family for of and the Estate of is counsel Watton July Moore, II. shot killed on Thomas Moore was requested Gray's state Gray allegedly his assailant. Watton investigating detention in the course of ments against his to file suit on clients' behalf whether Department under 48 U.S.C. 1983. Milwaukee Police custody leading up in month Gray had in and out of been 13, 2006, Gray by a June was detained to Moore's murder. On officer, police generated who a statement of City Milwaukee Gray of his encounter with emergency detention as result County civilly to the Milwaukee Health day.Gray committed was 20, 2006, when he was Complex from that date until June day, and Gray the next June was released. was arrested July Gray again eight was arrested custody from on 9. released later, July 17, again custody from on days on and was released day, July killed July by gunshot Moore the next allegedly 21. He 22. request Gray's

custodian denied Watton's for state- emergency ments of However, detention. before receiv- ing police department's response written to his request, petition records Watton filed a for a writ of compel production mandamus to of the records he requested open had under the records law. The circuit petition appealed. court denied Watton's and he appeals ¶ 4. The court of reversed. Watton v. He gerty, App 267, 2007 WI Wis. 2d 744 N.W.2d requirements 619. It held that Watton satisfied all four obtaining for a writ of First, mandamus. the court of appeals right concluded that Watton had a clear to the sought records he because statements of "registration" detention are neither nor "treatment" 51.30(l)(am) § records, as described in Wis. Stat. and (l)(b); exempt and therefore, the records are not from ¶ disclosure. Id., 33. Second, it concluded that plain duty open custodian had a under the law, records Wis. Stat. 19.35, ¶ to release Id., the records. 30. policy Third, open the court concluded that "the [was] improperly records thwarted" Department's Milwaukee Police decision not to disclose Watton, records to and as a result Watton incurred damages. Finally, ¶ Id., 33. the court concluded that remedy obtaining Watton had no other at law for remedy records, because the advanced custodian, i.e., that Watton could seek a court order for the release pursuant 51.30(4)(b)4, inappli of the was remedy pertains only "registration" cable as that 51.30(l)(am) records, "treatment" as described in (l)(b), sought and the records here did not fit those Id., definitions. granted petition 5. We the custodian's for re-

view and now reverse. DISCUSSION

II. of Review A. Standard regarding petition for

¶ a a decision 6. We review exercise of the erroneous mandamus under a writ of v. Cal Lewandowski State ex rel. standard. discretion (1984). laway, 457 165, 171, 346 N.W.2d 118 Wis. 2d independently, interpret "but ben statutes However, we appeals analyses efiting of of the court from the Regents the Univ. v. Bd. circuit court." Marder of Sys., ¶ 252, 2d 159, 19, 286 Wis. 2005 WI Wis. applica independently review 110. We also N.W.2d open Act the Mental Health law and tion regard petition undisputed for manda to a facts, to App 302, Elkhorn, ECO, 2002 WI Inc. v. mus. ¶ 276, N.W.2d510. 1, 259 Wis. 2d B. of Mandamus Writ proper petition

¶ of mandamus is A for a writ 7. challenge to disclose a refusal which to means open sought State ex records law. under documents App ¶ 7, 287 Stahowiak, 2005 WI rel. Greer v. "extraor Mandamus is an N.W.2d161. Wis. 2d public compel may employed dinary to be writ" that obligated they legally duty perform officers perform. Id., 6. mandamus com- to obtain a writ of In order petitioner pelling must estab- records, the disclosure of (1) peti- prerequisites are satisfied: lish that four legal right sought;9 has a tioner clear to the records (2) government entity plain legal duty the has a to

9 posture, Given this case's unusual whereby peti Watton tioned for a writ of mandamus before the police department request, denied his clarity records there is a lack of in our case regarding law whether it is Watton or whether it is the custodian who bears the initial persuasion. burden of We have recognized that, open law, within the legislature records the has presumption created a accessibility public records. Nichols Bennett, 268, 273, (1996); also, v. 2dWis. 544 N.W.2d428 see Breier, Newspapers, 417, 426-27, Inc. v. 89 Wis. 2d 279 N.W.2d (1979). Accordingly, in cases which the records custodian open denies an records request, ordinarily the burden is on the custodian to specific state for denying reasons access that are supported by statute, the public policy. common law or See Breier, 19.35(l)(a). 427; 89 Wis. 2d at Wis. Stat. "If the gives custodian gives no reasons or insufficient reasons for withholding record, public a compelling a writ of mandamus the Breier, production of the records must issue." 89 Wis. 2d at 427. presents This posture, however, case a different than the one contemplated in petition Breier. Watton filed a for a writ of City mandamus Department Milwaukee Police before denied access to the statements of detention related and, Gray accordingly, City also of Milwaukee Police before Department provided him subsequent reasons for its denial. jumped gun by While Watton filing petition his for a City writ before the of Milwaukee Police Department denied him sought, access to certain he place we decline to him, persuasion entirely burden of normally on as would follow filing petition from a for mandamus. See State ex rel. Greer v. Stahowiak, 219, App 7, 795, 2005 WI 287 Wis. 2d 706 N.W.2d ¶ 161. We do this because in circumstances in which a custodian records, denies access to the custodian must articulate reasons Breier, why However, it denied access. 2dWis. at 427. Watton prove prerequisites must nevertheless the four to the issuance Accordingly, of the writ he seeks. we consider both Watton's arguments why for he right" has "clear to the records and the arguments why custodian's for he does not. (3) damages records; would re

disclose the substantial (4) petition denied; if the for mandamus was sult adequate remedy petitioner id., at law. See has no other Milwaukee, also, 2002 WI 6; see Pasko v. ¶ 24, 252 Wis. 2d 643 N.W.2d72. considering petition In Watton's for manda- policies underlying open

mus, we are mindful of records law: representative recognition

In of the fact that electorate, dependent upon an informed government is public policy of this state that all it is declared to be the persons greatest possible entitled to the informa- regarding government tion the affairs of and the official employees represent who acts of those officers and Further, providing persons with such informa- them. repre- to be an essential function of a tion is declared government integral part and an of the rou- sentative employees tine duties of officers and whose provide it to such information. responsibility Accordingly, "recognizes § Wis. Stat. 19.31. presumption Wisconsin accessibility public records." Nichols to (1996). Bennett, 268, 273, v. 2d 544 N.W.2d428 Wis. presumption not However, 10. of access does may right Access to records create an absolute of access. statutory exemption specific be denied where there is a § 19.36, there is a disclosure, Wis. Stat. or where Newspapers, public policy exception, common law Breier, 417, 426-27, Inc. v. 89 Wis. 2d 279 N.W.2d (1979).10 see, Baraboo, 120, 27, Hempel City v. 2005 WI But 551, in 2d 699 N.W.2d which we stated that

284 Wis. request for person open makes an records "[w]hen C. Mental Health Act parties agree

¶ 11. The that the statements of emergency detention that Watton seeks are created provisions Act, under of the Mental Health ch. 51 the contends, however, Wisconsin Statutes. The custodian specifically exempts the Mental Health Act disclosure, statements from when read combination 19.36(1). § argues with Wis. Stat. The custodian "registration records," the statements are as described 51.30(l)(am), categorizes in Wis. Stat. also which privileged" them as "confidential and. .. "treatment (4). 51.30(l)(b) provided records," as Accord- ingly, the custodian maintains that Watton does not legal right" Gray's have a "clear statements of emer- gency Greer, ¶ Moreover, detention. 287 Wis. 2d argues, the custodian a writ of mandamus cannot issue provides because the Mental Health Act an- Watton remedy 51.30(4)(a)4, may law, i.e., other at under he petition the court to obtain the records.

¶ 12. Watton counters that emer- statements of gency detention cannot be considered "treatment only records" because those records that are "main- Department Family tained" of Health and ser- county by vices, staff, its branches or its treatment records," facilities constitute "treatment under Wis. 51.30(l)(b). § argues Stat. He that the of Milwau- Department catego- kee Police does not fit within these "maintain[ing]" ries of entities the statements of emer- containing personally identifiable information under Wis. Stat. 19.35(l)(am), person inspect is entitled to the records surrounding reasonably unless the factual fall circumstances (am)." statutory exceptions within one or more of the Accordingly, requests subject such not to common law or Id., public policy exceptions. 34.

gency Accordingly, detention. he contends that specifically exempt Mental Health Act does not state- emergency posses- ments of detention that are in the police department disclosure, sion from under 19.36(1). Wis. Stat. statutory Because he there contends is no

exemption open keep to the records law that would emergency private, statements of detention Watton argues weighing private that, the balance between public open law, interests under the tips balance toward disclosure there because is no "overriding public keeping interest the records con Erickson, 178, 181, fidential." Woznicki v. 2dWis. (1996). 549 N.W.2d 699 Watton contends this is so Gray put competency because has his mental at issue in defending charges against the criminal filed him related shooting.11 psychological to the Thomas Moore The Gray pleading guilty by evaluation after underwent not through reason of mental disease or defect is available County Accordingly, the Milwaukee Circuit Court. Wat- argues Gray keep private ton cannot those facts he already public. has made parties' dispute

¶ 14. To resolve the over the interpret detention, statements of we vari- provisions ous of chs. 51 and 19 of the Wisconsin " [Statutory interpretation 'begins Statutes. with supra. See note Gray against charges defended filed Moore, alleged shooting the State as a in part, result his pleading guilty by not reason of mental defect or disease. 971.16, Pursuant to Wis. Stat. the circuit court in the criminal Gray undergo case ordered an examination to assess his competency examination, Gray to stand trial. underwent examining Gray and the doctor recommended to the court that competent was to stand trial.

language meaning If the of the statute is statute. ordinarily inquiry.'" plain, stop ex rel. we State County, 58, 2004 WI Kalal v. Circuit Court Dane for (quoting ¶ 45, 633, 271 Wis. 2d 681 N.W.2d110 Seider O'Connell, 76, 211, 2d 612 232, v. 2000 WI 236 Wis. 659). meaning may N.W.2d Plain be ascertained not only employed statute, in the but from from the words statutory interpret language ¶ Id., the context. 46. We used; in the are "not in context which those words part whole; in isolation but as language of a relation to surrounding closely-related statutes; or reasonably, absurd or unreasonable results." to avoid Id.

¶ If the statute exhibit a 15. the words chosen for "plain, statutory meaning," ambiguity, clear without applied according plain meaning is to the statute statutory (quoting Bruno ¶ v. Id.,

terms. 46 Milwaukee County, 656). ¶28, 20, 633, 2d 660 WI Wis. N.W.2d "capable being

However, if a statute is under by reasonably persons in stood well-informed two ambiguous. [,]" senses then the statute is Id. at more enough disagreement ¶ "It is that there 47. not ambiguity statutory meaning; about the the test for language examines the of the statute 'to determine persons should have become whether "well-informed statutory. language confused," is, whether the . . reasonably gives meanings.'" (quot different Id. rise to 21). ing Bruno, 2d When a statute is Wis. ambiguous, may consult extrinsic sources to discern we meaning. ¶¶

its Id. at 50. While extrinsic sources usually statutory language not consulted if the plain meaning, may consult bears a we nevertheless verify plain-meaning "to extrinsic sources confirm or interpretation." Id., begin 51.15, 16. We with Wis. Stat. which police creating

describes the role of a in officer emergency detention, statement of and with Wis. Stat. types 51.30, which defines certain of mental health may records and describes how one obtain access to language those records. We consider the relevant legis- these sections of ch. 51 to ascertain whether the protect lature intended to statements of detention from disclosure. portions

¶ 17. The relevant Stat. Wis. 51.15(1)(a) (4)(a) and contained footnote 51.15(2) supra. inquiry, Section is also to our relevant provides pertinent part: and it

Facilities for detention. The law enforcement of- person ficer or other authorized to take a child into custody under ch. juvenile custody to take a into transport individual, under ch. 938 shall or cause transported, him or her to be for detention and for evaluation, diagnosis permitted and treatment if under (8) any following sub. of the facilities:

(c) facility!.] A state treatment 51.30(1) (4) ¶ 18. Portions of Wis. Stat. and also presented. They provide bear on the issue in relevant part:

(1) In Definitions. this section: (am) "Registration records" include all the records department,12 county departments... treat- "department" Rather, The not defined in ch. 51. it is chapter defined in 46: services to facilities, persons providing and other

ment or treatment county departments, department, providing in the course of facilities, are created .... mental illness to individuals for services (b) registration include the "Treatment records" in the course records that are created all other and ... for mental illness to individuals providing services by county department, maintained and that are staffs, by treatment their and departments... facilities. ... records,

(4) treatment registration and Access (a) pro- Except as otherwise Confidentiality records. 610.70(3) 118.125(4), and chapter and ss. vided in this 905.04, records shall (5), treatment and all 905.03 subject privileged to the confidential and are remain . .. individual. (b) Not- written consent. without Access informed (a), of an indi-

withstanding par. treatment written con- informed may be released without vidual following ...: circumstances sent court of record. order of a 4. Pursuant to lawful statutory provisions, of these 19. From the text legislative following direc- relevant we observe (1) may person police into a take officer tives: person custody has reason believe if the officer substantially probable mentally ill, and it is 46, 48, 50, 51, and 58: Definitions. In chs. 46.011 (1) family department of health and "Department" means the services. 46.011(1). § Stat.

Wis. person physical 51.15(1); § harm, will cause Wis. Stat. (2) person custody when an officer takes a into under signs such circumstances, the officer fills out and statement of detention related to the indi- and vidual to the circumstances the officer witnessed justify § taking person custody, 51.15(4); into (3) obligated transport arrange the officer is to either transport person for the facility of such a to a state treatment diagnosis potential

for evaluation, and treat- (4) 51.15(2); § ment, records that are created providing persons course of services to for mental by department illness and maintained or treatment facility "registration records," Wis. Stat. (5) 51.30(1)(am); § "reg- "treatment records" include all istration records" that are "maintained" treatment (6) 51.30(l)(b); facilities, "treatment records" must13 51.30(4)(a); privileged, remain confidential and are (7) may "treatment records" be released court person order, when the to whom the records relate does provide authorizing not written informed consent their 51.30(4)(b)4. release,

¶ 20. We conclude that the sum of these direc- they Gray, tives, as relate to is that the statements of emergency "registration detention are records"; and they exempt public therefore, are from the records legislature The has established that "all treatment records shall remain confidential and privileged." Wis. Stat. 51.30(4)(a) added.) § (emphasis We have "characterized ... mandatory 'shall' as unless a different required construction is by carry the statute to out the legislature." clear intent of the County Goode, 654, 663, Forest v. 219 Wis. 2d 579 N.W.2d 715 (1998). sensitivity Given the of "treatment records" and the strong legislative keeping private "interest in the of an details condition," individual's mental and emotional Billy Jo W. v. Metro, 616, 632, (1994), 182 Wis. 2d 514 N.W.2d 707 we conclude 51.30(4)(a). mandatory meaning that "shall" has a § within privileged" They . . . request. and are also "confidential by protected statute. Wis. Stat. records" "treatment (4). 51.30(l)(b) § rests on the fol- conclusion and Our "Registration lowing records of records" are rationale. Family Department created and Services of Health the "providing for to individuals services" result of as a 51.30(l)(am). § of emer- Statements mental illness. "registra- gency of this definition detention fit within creating statement the officer records" because tion "provid[es] emergency . indi- to . . services detention of regard The officer illness. Id. to mental viduals" (1) respects: re- provides as in at least two services 51.15(4)(a), § by fills out quired the officer Wis. Stat. emergency signs form, detention of the statement and thereby relaying important factual information may person not be able in need of assistance who is (2) by required facility; provide as treatment to the transports 51.15(2), individual to either the officer arranges facility, for individual a state treatment facility. transported The treatment to a state to be facility, transport as well as treatment also benefits provides that the officer These services the individual. emergency fit detention of cause the statements squarely description of within Health Act's the Mental 51.30(l)(am). "registration records." notwith- contends, however, ¶ 21. Watton emergency standing of of some statements the inclusion "registration of the classification within detention not "treatment he seeks are the records records," being they "maintained" are not because records" type facility" "department" listed or a "treatment 51.30(l)(b). that these asserts Watton Stat. in Wis. Milwaukee are "maintained" pre- Department. ch. 51 concedes that Watton Police obtaining the statements him from cludes physically possession detention that are in the of a facility. However, treatment he contends that ch. 51 preclude obtaining him does not from of statements emergency possession physical detention in the the of police department. although that, Watton reasons the copies emergency kept of of statements detention department police duplicate copies within the the of by facility, statements maintained original the treatment the duplicate and warrant its do not the same disagree. treatment under the statutes. We plain language coupled ¶ 22. The ch. 51 of with obligation our to construe statutes to avoid absurd copies results causes us to conclude that of statements emergency possession police detention the department not lose do their classification as records facility. Accordingly, "maintained" treatment the copies emergency of the statements of detention in the possession police department the be continue to exempt "treatment records" from disclosure. 51.15(4)(b) First, Wis. Stat. states that the facility may, treatment discretion, within its alter the emergency completes statement detention officer facility. facility and files with the The then files original statement of detention supplement any, if statement, to that with the court having jurisdiction county in the in which the officer 51.15(4)(b) person custody. pro- took the into Section part: vides in relevant

(b) delivery of Upon [to individual treat- facility detained, ment and]... [i]f the individual is designee may or supple- treatment director his or her writing in ment the statement filed law enforce- ..., ment officer and shall whether designate the sub- ject mentally ill, individual is believed to be developmentally dependent, disabled drug if no by enforcement of- designation was made the law designee The shall then ficer .... treatment director or any original together file statement with promptly the of and notification detention supplemental statement jurisdiction county having probate court the with the custody. into the individual was taken in which facility original copies the treatment has the and When emergency the detention and it files of the statement of original facility copies court, the the treatment with the They change the do not their character. contain retains they mental health information as same confidential physically in the all the documents were did when facility, the for the and concern hands of treatment maintaining confidentiality their remains the same. 51.15(4)(b) obligations The Stat. that Wis. facility designees places or their on treatment directors emergency respect to of detention with statements emergency copies the of that the of statements indicate City possession of Milwaukee detention the Department "main- are nevertheless records Police facility facility. example, For tained" treatment designees charged supple- with or their directors menting police needed, officer, if filed record filing emergency of detention and with the statement any supplement appropriate court, circuit with 51.15(4)(b), maintaining thereby the statement in the helpful contrast, In the circuit form most to court.14 charged Department is Police not of Milwaukee obligation respect any statements of emer- with to with 14Although facility statutorily permitted is the treatment as it of detention supplement the statement court, necessary submitting the statement to a deems before facility obligated supplement copy not also to treatment depart the police emergency detention the statement ment retains.

gency original detention, after the statements have facility. been delivered to the detention or treatment police department copy merely The keep retains a transport Department track of costs and whether the Family pursuant Health and Services, to Wis. Stat. § 51.20(14), police department has reimbursed the for those costs.15

¶ § 25. Second, Wis. Stat. 51.30 evidences the legislature's keep decision to mental health treatment Billy information confidential. See Metro, Jo W.v. 182 (1994). Wis. 2d 632, 514 N.W.2d 707 As we have explained, "strong [legislative] there ais interest in keeping private the details of an individual's mental and confidentiality provisions emotional condition." Id. The designed protect pieces of ch. 51 paper; are not to of they designed protect to information about indi viduals who receive mental health care services. Ac cordingly, interpretation we would offer an absurd of § 51.30(l)(b), which describes records, treatment if we copies were to conclude that of statements of the. emergency physically kept detention at the of Department Milwaukee Police are not "treatment simply duplicate records" copies because those are not physical possession in the facility of a treatment or 51.30(l)(b). department § another listed in Such an 15 51.20(14) Wisconsin Stat. provides in part: relevant Transportation; expenses. any The sheriff or law enforce- transport ment officer shall subject an individual who is the of a petition and execute the commitment.... The director of the county department may under request s. 51.42 or 51.437 the provide transportation sheriff subject to may for a individual or arrange any transportation other method of which is feasible. The county department may provide transpor- reimbursement for the budgeted tation operating costs from its funds. confidentiality interpretation protect the of would not individuals. Accord- information about mental health emergency ingly, of deten- we conclude that statements facility, possession a of treatment tion possession department 51.30, or in the listed department, police within the are "treatment records" 51.30(l)(b). meaning of prohibits acknowledges that ch. 51 Watton obtaining emergency deten-

him from the statements kept by facility in- absent written tion treatment argues however, order; he consent or court formed prohibit obtaining him from the state- ch. 51 does not kept by police depart- ments of detention interpretation explained, As have Watton's ment. we confidentiality contrary provisions and, if of ch. applied, lead an absurd result. We avoid statu- would e.g., tory See, interpretations lead results. to absurd any Kalal, event, as we have 2d 46. In Wis. meaning provisions plain of ch. 51 recounted, the interpretation.16 permit not such an do plain meaning open records law and Although interpretation, we the support of ch. 51 our observe supports law our legislative history open records also v. Circuit Court Dane interpretation. See State ex rel. Kalal for 58, 633, 51, 110 County, 2d 681 N.W.2d 2004 WI Wis. ¶ legislative sources, a (stating may even when that we consult verify ambiguous, plain-meaning "confirm or a is not to statute law, existing open records interpretation"). Wisconsin's Wis. 19.31-39, Legislative in The §§ was created 1981. Refer Stat. analysis creating open the law of the bill ence Bureau's that, right inspection "the reinforced" stated while 51, laws," chapter bill, by "specific such as right a is limited such forbidding to certain records: access recodifies, amplifies concern- and state law This bill clarifies presumption

ing public Although ... there is access to records. access, exceptions right public to of access in favor certain analysis ¶ 27. Our of ch. shows that state- emergency ments of detention are "treatment records." specifically exempts The Health Mental Act such designating disclosure, records from them as "confiden- subject privileged tial and .. . to the Wis. individual." 51.30(4). § Accordingly, Stat. the custodian suc- has showing ceeded in that the statements of City detention withheld of Milwaukee Police Department statutory exemption fit within a from 19.35(l)(a) disclosure set out Wis. Stat. and Wis. 19.36(1). Correspondingly, Stat. Watton not suc- has showing legal right" ceeded in that he has a "clear to the grant- detention, statements of as the standard for the ing requires.17 Greer, of a writ of mandamus 2d 287 Wis. Consequently, appeals 795, 6. we the court reverse uphold peti- the circuit court's denial of Watton's tion for a writ of mandamus.18 accepted exceptions have become .... Such include instances expressly by specific

which records are closed laws. 335, Drafting 1981, File for ch. Analysis by Laws of Legislative Bureau of S.B. Legislative Reference Bureau, Madison, Reference Wis. 17Because has failed Watton to show that he satisfies prerequisites mandamus, first of the four we do not consider whether plain he satisfies the other three: custodian has duty seeks; he damages disclose the records substantial denied; if petition would result for the writ were and Watton Greer, remedy has no other adequate at law. 2d 287 Wis. Furthermore, may remedy Watton have indeed another at 51.30(4)(a)4. law, pursuant to Wis. Stat. 18In reversing addition to the circuit court's denial of petition, appeals upheld Watton's the court of also the circuit days court's conclusion the 41 it took the of Milwaukee Department Police to respond request to Watton's records ¶ 28. Because we conclude that the Mental Health emergency Act its terms defines statements of de- expressly records," tention as "treatment which it ex- empts from disclosure without written informed con- order, sent or a court we need not address Watton's argument the balance of interests between policy open government Gray's Wisconsin's in- keeping private tips terests in his mental health records Woznicki, favor of disclosure. See 2dWis. ¶ 29. We also note that our decision does not necessarily attempt Gray's thwart Watton's to obtain emergency provided statements of detention. As in Wis. 51.30(4)(a)4, § may petition appropri- Stat. Watton compelling ate circuit court for an order release of the Beyond just statements. stated, what we have we ex- press opinion respect no with to the issuance of such an 51.30(4)(a)4 order. If Watton chooses seek a order, we leave it to the sound discretion of the circuit court to grant deny Watton's order, motion for an Watton's grant part, permitting only motion, or to motion partial emergency disclosure the statements of de- tention.

III. CONCLUSION presented upon ¶ 30. The issue whether, an open request to of Milwaukee Police Department, provisions Act, of the Mental Health ch. preclude Statutes, 51 of the Wisconsin disclosure of duplicate copies of statements of detention 19.35(4)(a) complied requirement with the in Wis. Stat. that a governmental entity respond request to a for records "as soon as practicable delay." and without did appeal Watton not the court appeals respect compliance decision with with 19.35(4)(a); therefore, we do not consider that issue. police department, possession in of the

that are consent or a court order. We absent written informed therefore, does; it and we reverse conclude appeals. decision court appeals By the court of the Court.—The decision of is reversed. {concur-

¶ ABRAHAMSON, C.J. 31. SHIRLEY S. ring). agree in I that the records at issue the instant subject to the case are "treatment records" and confidentiality privilege provisions and of Wis. Stat. 51.30(4).1 § majority opinion purports

¶ The to reach this 32. by relying "plain language" result tory on the of the statu- 51.30(l)(b). § in It definition of treatment records holding majority opinion in the at odds does not. The 51.30(1)(b). § the text of with ¶ 33. "Treatment records" are defined Wis. 51.30(l)(b) by they by § and Stat. how are created they statutory The definition of whom are maintained. is as treatment records follows: registration "Treatment records" include the and all providing created in the course of other records that are to individuals for mental illness .. . and that services Services], by [Department Health are maintained by county departments under s. 51.42 or 51.437 and staffs, (emphasis their treatment facilities added). original case, In the instant record at 34. undisputedly maintained a treatment issue was 51.30(4)(a) provides except as oth Wisconsin Stat. stated, remain confidential erwise "all treatment records shall subject The privileged and are to the individual...." record at any excepted provisions set issue does not fall within 51.30(4). forth in facility. Consequently, original record fits the statu- tory definition aof "treatment record." sought copy Watton, however, of that police department. treatment record from the No treat- (or facility entity ment other enumerated Wis. Stat. 51.30(l)(b)) copy "maintained" of the treatment possession police depart- record that was in the of the just copy police depart- ment. The on file the was with police department purposes. ment for administrative Confusingly, majority opinion appears ¶ 36. the to copy ¶ conclude at 24 that the of the treatment record police department by on file with the is "maintained" facility, facility the treatment because treatment direc- designees charged by tors or their are statute with supplementing original the record that the treatment facility possesses. majority opinion's reasoning The obligation facility odd. The of treatment directors or designees supplement original their on record file facility only with the treatment shows what Watton already original concedes—that the record on file with facility by the treatment is "maintained" the treatment facility. question The in the instant case is whether the copy police department of the record on file with the by facility. also is "maintained" the treatment The majority opinion concedes, must, as it that treatment facility designees statutorily directors or their are not required supplement copies of treatment happen police department that to be on file with or any entity.2 other Consequently, copy

¶ 37. of the treatment police department record filed with the possession not in the was supplemented any of, or inor other sense by, facility. copy "maintained" a treatment The of the 2 Majority op., n.14. ¶ not fall within the text record thus does

treatment 51.30(l)(b); by any copy of the was not maintained majority statutorily persons entities. The enumerated concluding copies opinion of statements of errs in police possession in the detention department records "maintained" a treatment facility. majority opinion's repeated statements 38. The language plain of the statute to hold it relies on the police copy record filed with the

that a department of a treatment facility3 is maintained treatment light of the text of the statute. make no sense majority opinion implicitly con- Indeed, acknowledges that it must lean much it cedes as when deciding present on the "absurd results" doctrine not be inter- case.4 The doctrine that statute will preted is used to avoid to reach an absurd result plain interpreting in accordance with its a statute subject language a statute is to more or is used when interpretation.5 one reasonable than 3 See, e.g., majority op., 22, 25, 26 & n.16. ¶ 4 id., See 22. ¶ 5 Cos., Farm Ins. 89, 32, See v. State 2006 WI ¶ Teschendorf 123, ("Although meaning 2d N.W.2d 258 293 Wis. 717 language of appears plain, application to be a literal statute O'Connell, 76, 32, Seider v. absurd."); 2000 236 would be WI ¶ ("As 211, rule, general apply 659 courts Wis. 2d 612 N.W.2d statutes, meaning language in unless ordinary accepted and of result.") (internal State omitted); citation it leads to an absurd 77, Delaney, 9, 15, v. 259 Wis. 2d 658 N.W.2d 416 2003 WI ¶ ("[W]e unambiguous if may a clear and statute a literal construe result.") lead to an absurd or unreasonable application would County, Rice v.Ashland omitted); (quotation marks and citation (1900) ("[I]f, 189, 192, viewing a statute 84 N.W. 189 108 Wis. language, it is standpoint from the of the literal sense its majority opinion ¶ 40. The need not stretch either 51.30(b) logic the text of Wis. Stat. or to arrive at the interpretation correct of the statute at issue. The (as majority opinion relying should be it sometimes does) purpose on the of the statute derived from its legislative history6 consequences context and and the interpretations,7 deceptively various without character- izing analysis "plain language" analysis. its as a agree determining

¶ meaning I 41. that in of a statute, a court turns first to the text of the statute. inquiry However, the court's is not limited to the text of statutory provision. the purpose,8 any A court considers the statute's provisions prior

related statutes,9 case absurd, unreasonable or obscurity meaning exists, an calling construction."). judicial for See also 2A Singer Norman J. & Singer, J.D. Shambie (7th 2007) and Statutory Statutes 45:12, Construction ed. at ("It 101,107) fundamental, however, is departure from the literal justified construction of a statute is when such construc- tion produce would an unjust absurd and result and would clearly be inconsistent with purposes policies of the act question.... If one interpretation reasonable of a statute yields absurd results while the other interpretation yields no (foot- absurdities, such the latter interpretation preferred.") omitted). 9See, e.g., Harley-Davidson, Racine 549, 292 2d Wis. 82 ¶ (examining statutory provisions other to determine the mean-

81 history,11leg- statutory interpreting statute,10 the law (also history,12 or can- as maxims known rules islative ons) interpretation,13 statutory available and other of give doing aims to persuasive so, a court In material. majority opinion legislative the intent, as effect to recognizes.14 51.30(l)(b) case, Wis. Stat.

¶ I this 42. As see way defining in a that be read records cannot 51.30(4), treatment purpose maintain is to which of defeats the legislature confidentiality The records. of certain 51.30(l)(b) be inter- have intended could not way preted circumvents undermines or 1, court); 2d 18 Hayes, 273 Wis. ¶ ing statute before of the of [the in the context "be viewed that the statute (requiring whole"). chapter] as a 10 30, K., 152, 286 See, ¶ 2005 WI e.g., v. Robert State (2005) as (considering case law 143, 706 N.W.2d 257

2dWis. statute). interpreting relevant

11 52, Co., 2008 WI See, Mut. Ins. Badger v. e.g., Richards viewing (strangely 541, 581 22; 2d 749 N.W.2d Wis. 309 ¶ statutory analy meaning history plain of the statutory part as sis).

12 549, 2d 81 See, 292 Wis. Harley-Davidson, ¶ e.g., Racine (Wis. 2006) history of the statute (examining legislative K., 143, 2d 29 286 Wis. meaning); ¶ Robert determine its drafting history, including the legislative (discussing the meaning). its records, to determine of a statute 13 42, 2d 309 Wis. 601 2008 WI Popenhagen, v. State statutory interpreta three rules (applying 749 N.W.2d tion). majority op., ¶ See (2004) ("Additional 2d Hayes, 273 Wis. v. State context, history, scope, legislative intent such as sources statute, consequences including objective legisla- the intent of the illuminate interpretations, alternative ture."). carefully legislative provisions drafted set forth in 51.30(4) limiting access to treatment records.15 Be- copy cause record at issue the instant case is a indisputably another record that falls within 51.30(l)(b)'s definition of records," "treatment and is police department solely in the for administrative cost- accounting purposes relating transportation per- copy scope 51.30(4), sons, the must fall within the limiting access to "treatment records." separately

¶ 43. I write to set forth a more forth- right statutory interpretation.

¶ 44. I am authorized to state that Justice ANN joins opinion. WALSH BRADLEY this ("The WI 55, See Popenhagen, 2008 legislature 87¶ could not have intended that the statute would interpreted be in such way to allow circumvention of carefully legislative drafted ."). requirements safeguards . . . notes 6 majority op., See 25. ¶ id., See ¶ 8See, e.g., Harley-Davidson, Racine Inc. v. State Div. of Hearings Appeals, 86, 92, & 2006 WI 292 Wis. 2d (2006) N.W.2d (construing the statute's terms to be consis express tent with its purpose); Hayes, 80, 39, State v. 2004 WI (2004) ("We 273 Wis. 2d 681 N.W.2d203 therefore turn to an analysis of the purpose[ ] ... of the statute to determine the effect."). interpretation gives the statute its intended

Case Details

Case Name: Watton v. Hegerty

Court Name: Wisconsin Supreme Court

Date Published: Jul 1, 2008

Citation: 751 N.W.2d 369

Docket Number: 2006AP3092

Court Abbreviation: Wis.