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Legal documents not public until filed with court

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    NMU         WISCONSIN &nbs

    NMU         WISCONSIN         Freedom of Information         Feb 28, 2000    

Legal documents not public until filed with court

  • Documents related to a deadly crane accident during construction work at a public facility cannot be obtained by a newspaper before filing because they are not inherently “public.”

A Wisconsin newspaper does not have a right under the state’s public record laws to access legal documents before they have been filed in a civil case, the state Supreme Court in Madison ruled in late February.

The Milwaukee Journal Sentinel had gone to court seeking access to documents about a fatal crane accident that occurred during construction of Miller Park in Milwaukee. On appeal, the state’s highest court overturned two lower courts in finding that the public records law did not apply.

“There are no allegations that public funds are in jeopardy in this lawsuit. The underlying case is a tort action brought by private plaintiffs against a corporate entity; public issues and concerns are not in dispute,” the court said in its Feb. 23 opinion. “The fact that this case arose from an accident at a public works project and has generated a great deal of publicity is not enough to transform this into the type of public controversy in which all documents are imbued with ‘public record’ status.”

Instead, the court looked to the rules governing civil lawsuits. The families of three ironworkers who were killed during the summer of 1999 when a crane collapsed while moving part of the stadium’s roof filed suit against the roofing subcontractor, Mitsubishi Heavy Industries. As parties to a civil case, the families were allowed to seek information — depositions of witnesses and internal documents, for example — from Mitsubishi to use at trial.

In this case, the newspaper also appealed to the circuit court in Milwaukee for permission to intervene in the case on behalf of the public for the purpose of obtaining access to the pretrial discovery material.

The trial court, as well as an appeals court, found that the documents were public records and that the parties would have to disclose them as they were generated, not as they were filed with the court.

Mitsubishi successfully argued before the Supreme Court that only those discovery documents filed with a court are available to the public. The Supreme Court distinguished pretrial documents from “judicial records,” which are filed in a case, and to which the public and press do have a right of access.

“As long as these materials remain in the possession of the parties and have not yet been filed or even used in court, they remain the private, personal property of the litigants to which neither the media nor the public have a common law right of access,” the court said.

In a concurring opinion, Chief Justice Shirley Abrahamson suggested that nothing in the court’s opinion or in the rules governing civil suits would preclude the newspaper from returning to court and asking for an order requiring the parties to file all discovery materials.

(Wisconsin ex rel. Mitsubishi Heavy Industries America, Inc. v. Circuit Court for Milwaukee County; Media Counsel: John Busch, Milwaukee)

© 2000 The Reporters Committee for Freedom of the Press

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