Police documents are exempt, rules appellate court

WISCONSIN — Records kept by police are exempt under Wisconsin’s open records act to the same extent as copies given to district attorneys for prosecution of a case, according to an early November decision by the Court of Appeals of Wisconsin in Madison. The act specifically exempts prosecutorial files from disclosure.

Charles Downing asked the Middleton Police Department for files connected with charges of robbery filed against him. The police department told him in mid-October 1992 that he could only gain access to the records through the Dane County District Attorney’s Office, not the police department.

Downing appealed in early February 1993 to the Circuit Court for Dane County. He argued that an exemption for the district attorney’s office during prosecution of the case did not absolve the police department of its legal duty to satisfy his request. Consequently, he asked the court to award him punitive and compensatory damages, as well as costs, and to order the Department to provide the documents.

The Department argued that the materials fell within the prosecutorial files exemption because Downing’s appeal of convictions connected to the stolen items was still pending. The Department also said that in late January 1991, the district attorney had already provided Downing’s attorney with reports on the charges in connection with his criminal trial.

After the trial court dismissed the case, Downing appealed to the Court of Appeals. The appellate court found that Downing already had the material and that the police could claim the prosecutorial exemption. The court reasoned that to do otherwise would require it either to force law enforcement agencies to destroy documents once they send files to the district attorney, or to negate the exemption when agencies retain copies of the materials.

(State ex rel. Downing v. Middleton Police Dep’t)

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