Court Won’t Let Wisconsin DA Shield Records

MADISON, Wis. (CN) — Records from a fruitless investigation motivated by political rivalry are public documents when they concern an elected official, the Wisconsin Supreme Court has ruled.

Justice Shirley S. Abrahamson wrote for the majority in rejecting the claim state-employee status entitles District Attorney Albert Moustakis to judicial review of a release of his personnel records.

As Justice Ann Walsh Bradley pointed out during oral argument, the statute explicitly exempts holders of public office from the right to intervene before personnel records are released.

But all is not lost for the Vilas County DA. On remand, the circuit court must still examine Moustakis' request for a writ of mandamus and a constitutional challenge to the public records law.

The case at hand stems from requests by The Lakeland Times newspaper for state records on its communications with Moustakis and its investigations into his conduct.

With the state Department of Justice poised to release redacted records in 2014, Moustakis sought relief from the courts, claiming the records concerned an investigation into a former political rival's repeated allegations against him, none of which involved on-duty misconduct.

Ordinarily, Wisconsin public records law does not allow review prior to releasing public records, according to the opinion.

The DOJ said it notified Moustakis as a "professional courtesy" and not pursuant to an obligation.

Lower courts have supported disclosure, but the redacted records remain in the DOJ and Moustakis' custody, awaiting a decision from the courts.

Beginning from the statutory basis for Wisconsin's generally pro-disclosure public records law, Abrahamson argued that Moustakis would have had to prove that his case was an exception.

He failed.

Wisconsin's definition of an employee includes an exception for "an individual holding local public office or a state public office."

Moustakis' argument that he is employed by the state, and thus an employee of an "authority" as listed in the public records exception, fell flat.

"We agree with the court of appeals that Moustakis's distinction between holding a state public office and being employed by a state public office is unsupported by law, creates confusion, is contrary to any reasonable reading of the public records law, and is unpersuasive," Abrahamson wrote.

Chief Justice Patience Drake Roggensack, Abrahamson's own sometime political rival, authored a partial dissent, on which she was joined by Justices Annette Kingsland Ziegler and Michael J. Gableman.

Roggensack took the position that Moustakis is entitled to the same notice as an employee whose records are set to be released — five days, according to the statute.

The dissent quotes a portion of the law, claiming Moustakis is an "an officer ... holding a local public office or a state public office." (Ellipses in original.)

Abrahamson argued, however, that the relief Moustakis seeks does not pertain to prior notice — he does not want the records released at all.

Moustakis and his attorney, Mosinee-based Scott Swid, were both out of their respective offices Friday and did not immediately return voicemails.

The DOJ offered a curt comment.

"Today's decision is a victory for open government and reaffirms DOJ correctly handled the release of public records," spokesman Johnny Koremenos said in an email.

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