Tensions Soar in Wisc.|Over Public Records

     MADISON (CN) – The Wisconsin Supreme Court fought Thursday over open-records laws covering unsubstantiated misconduct allegations against public servants.
     The case at hand stems from requests by The Lakeland Times newspaper for state records on its communications with Vilas County District Attorney Albert 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.
     Lower courts have supported disclosure, but the redacted records remain in the DOJ and Moustakis’ custody – a fact that displeased several Supreme Court justices who noted in court Thursday that they could not review the materials before deciding the case.
     Scott Swid, an attorney for the DA based in Mosinee, Wis., opened his argument in court today by saying the law governing the release of public employee and official records is “well-intended” but falls short in his client’s case.
     “No law should allow for false information to be put to the public,” Swid said, a sentiment Moustakis echoed after the hearing.
     Swid conceded that the records are so “dramatically redacted” as to prevent a determination about the nature of Moustakis’ employment, but that they concerned conduct taken outside his official capacity that could affect his work as a district attorney.
     By dismissing Moustakis’ challenges, Swid said, the courts have given the DOJ greater authority than a judge over the balancing test of public good and harm. Swid called this a “broad, shotgun approach” to an issue that deserves closer review.
     Justice Ann Walsh Bradley chided Swid over what she framed as an obvious exception for public officials to the court-review rules.
     “Sometimes reading statutes is a little difficult,” she said, before pointing to a note that listed the Legislature’s intent as excluding public officials from the “employee” category.
     Assistant Attorney General Brian Keenan told the court “this really cannot be any clearer.”
     “It’s not ambiguous at all,” he said, adding that public policy supports the DOJ’s position because open-records law mandates that the public is entitled to the “greatest possible information” about public happenings, absent an “exceptional case” for nondisclosure.
     A few sparks began to fly when Justice Michael Gableman challenged the DOJ’s decision to put the balancing test under the charge of a single assistant attorney general and the records custodian, rather than an independent authority.
     Keenan replied: “That’s how the balancing test works.”
     “Well, thank you for enlightening us,” Gableman said, visibly agitated.
     Gableman added later that a judge is more qualified than an “unelected bureaucrat who may or may not be educated on the finer points of public-records law” to perform the test.
     In his rebuttal, Swid pointed out that “the balancing test didn’t include anybody asking Al Moustakis.”
     Swid notably received an advantage in time in today’s arguments, with two judges asking questions well after Swid’s rebuttal time had expired.
     Justice Ann Walsh Bradley squeezed in another question after Justice Patience Drake Roggensack allowed Swid to reply to a final question by Justice Gableman, though his time had expired.
     When former Chief Justice Shirley Abrahamson proferred another question, Justice Roggensack interrupted with a warning for her fellow justices to “restrain themselves” in the interest of fairness to the state.
     “I am restrained,” Abrahamson shot back before asking her question.
     After the court adjourned, Abrahamson asked from the bench whether the state wanted more time, which Keenan declined.
     “The argument is over,” he said after the hearing when asked whether the timing issue would come up in further review. He offered no further comment.
     Moustakis, whose attorney declined comment, said the court is deciding an issue that will affect public officials at all levels, including the governor.
     “The public has a greater interest in protecting public officials from false information than the public has in getting to hear false information,” he said, adding that the DOJ would be committing defamation if it released the records at issue.
     A case summary released by the Wisconsin Supreme Court’s public information office says the DOJ alerted Moustakis “as a courtesy,” because it is not required to inform public officials of such requests before fulfilling them.
     Wisconsin law requires that public employees be informed before their personnel records are released so that they may seek court review of the decision to release the records.

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