Open records law requests must be disclosed under common law

Open records law requests must be disclosed under common law

03/25/96

WISCONSIN–The state’s high court in late February upheld the public’s right of access to a county district attorney’s records of requests made pursuant to the state’s open records law.

The Wisconsin Supreme Court noted that the common law open records exemption for prosecutorial files does not allow a prosecutor to “shield documents subject to open records law simply by placing them in a closed prosecutorial file.”

The common law exemption, the Court stated, should be limited to those instances where a criminal investigation may be compromised or the safety of informants jeopardized by release of the file.

The high court added that the records should be open to the public because it is entitled to know how its officials handle records requests.

The case stemmed from an August 1992 request by Susan Nichols for copies of all records requests made to Columbia County District Attorney Mark Bennett within the last two years.

While Bennett did provide a copy of one file, he declined to release three others, claiming that they were prosecutorial files containing investigative data and were thus exempt from disclosure under the state law.

Nichols filed suit in early 1993 seeking a court order for disclosure of the document and in March 1993 the circuit court in Juneau concluded that the records were “part of closed prosecution files and as such are exempted from disclosure under” Wisconsin case precedent.

The Columbia County Court of Appeals in Madison reversed that decision, holding that the exemption applied by the lower court should only apply to “items that actually pertain to prosecution,” and to “information gathered in the course of an investigation.” (Nichols v. Bennett; Plaintiff’s Counsel: Norma Briggs)