Democratic Party of Wisconsin v. Wisconsin Department of Justice

2016 WI 100

SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP002536-FT
COMPLETE TITLE: Democratic Party of Wisconsin and Cory Liebmann,
Petitioners-Respondents,
v.
Wisconsin Department of Justice and Kevin
Potter,
Respondents-Appellants-Petitioners.

REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED: December 28, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2016

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Richard G. Niess

JUSTICES:
CONCURRED:
DISSENTED: Abrahamson, J., joined by A.W. Bradley, J.
NOT PARTICIPATING:

ATTORNEYS:
For the respondents-appellants-petitioners the cause was
argued by Misha Tseytlin, solicitor general with whom on the
briefs was Luke N. Berg, deputy solicitor general, and Brad D.
Schimel, Attorney General.

For the petitioners-respondents, there was a brief by
Michael R. Bauer and Bauer Law LLC., Madison, and oral argument
by Michael R. Bauer.
 2016 WI 100
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP2536-FT
(L.C. No. 2014CV2937)

STATE OF WISCONSIN : IN SUPREME COURT

Democratic Party of Wisconsin and Cory
Liebmann,

Petitioners-Respondents, FILED
v. DEC 28, 2016
Wisconsin Department of Justice and Kevin Diane M. Fremgen
Potter, Clerk of Supreme Court

Respondents-Appellants-Petitioners.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 REBECCA GRASSL BRADLEY, J. This is a review of an
unpublished court of appeals' opinion and order,1 which affirmed

the circuit court's order2 granting a writ of mandamus compelling

the Wisconsin Department of Justice to disclose two video

recordings requested by the Democratic Party of Wisconsin under

Wisconsin's Public Records Law, Wis. Stat. §§ 19.31-.39 (2013-

1
Democratic Party of Wis. v. DOJ, No. 2014AP2536-FT,
unpublished slip op. (Wis. Ct. App. Oct. 14, 2015).
2
The Honorable Richard G. Niess of Dane County presided.
 No. 2014AP2536-FT

14).3 We are asked to decide whether the justification for

nondisclosure outweighs Wisconsin's commitment to public access

to government records. We conclude that the reasons given by

the record custodian for nondisclosure sufficiently demonstrate

that the legislative presumption in favor of disclosure has been

outweighed by the public harm that would result from disclosure.

We reverse the decision of the court of appeals and deny the

writ of mandamus.

I. BACKGROUND

¶2 In September 2014, Cory Liebmann, Research Director

for the Democratic Party of Wisconsin, submitted a public

records request to the Wisconsin Department of Justice. The

request asked for the release of

[a]ny and all photographs, films, and tape recordings
including but not limited to computer tapes and
printouts, CDs, DVDs, videotapes and optical discs of
any presentation made at any training program by Brad
Schimel on the following dates: May 14, 2013; June 8,
2012; November 8, 2012, May 20, 2010; June 17, 2009.
¶3 Kevin Potter, the Department of Justice's Record

Custodian, responded to the request by letter in October 2014.

Potter explained the DOJ had "identified two records responsive

to [Liebmann's] request: one video recording of a presentation

made by Mr. Schimel on May 14, 2013 on the topic of victim

confidentiality and one video recording of a presentation on

June 17, 2009 concerning the prosecution of, and common defenses

3
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

2
 No. 2014AP2536-FT

in online child exploitation cases." Both videos were

recordings of presentations Attorney Schimel4 gave at Wisconsin

State Prosecutors Education and Training conferences. The

subject matter of the 2013 conference was "Protecting Victims of

Crime" and Attorney Schimel's segment addressed "Victim

Confidentiality." Attorney Schimel's presentation at the 2009

conference addressed "Prosecution [and] Common Defenses in

Online Child Exploitation Cases." These conferences were

training sessions for prosecutors and victims' rights advocates,

with some law enforcement representatives present. Attendance

was limited to those groups and not open to the public or the

media. The videos were not publicly available but were recorded

and stored so that prosecutors who were not able to attend could

view the educational training at a later date.5

¶4 Potter explained that neither recording would be

released because, after applying the public records balancing

test, he concluded the public interest in nondisclosure

outweighed the general presumption favoring release. Potter

4
During the pendency of this case, Attorney Schimel served
as the Waukesha County District Attorney and later as Wisconsin
Attorney General. To avoid confusion, we refer to him
throughout as "Attorney Schimel." At the time of both
presentations at issue, Attorney Schimel served as the Waukesha
District Attorney. At the time of the 2013 presentation, he was
also the Republican candidate for Wisconsin Attorney General in
a contested election, which he won in November 2014.
5
The presentations are not professionally recorded and the
videos are of low quality. As we understand it, a video camera
was set up and an attendee was asked to push "record" when the
presentation started and to push "stop" when it ended.

3
 No. 2014AP2536-FT

gave specific reasons for his conclusion particular to each

recording, with some overlap. The 2009 recording would not be

released because (1) the presentation contained specific

litigation strategies for online child exploitation cases,

disclosure of which would impede effective investigation and

prosecution of sexual predators; (2) the prosecutor training

programs are similar to the contents of a prosecutor's case

files, which are exempt from disclosure under State ex rel.

Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991); (3)

the material presented may be privileged attorney-client

communication, work product material, or both; and (4)

disclosure would adversely impact victims' rights. The reasons

for not disclosing the 2013 recording included: (1) the

presentation, which was part of a joint training program for

prosecutors and crime victim staff, discussed prosecution

strategies in a high-profile sexual extortion case involving

high school students; and (2) the presentation contained a

substantial amount of detail, which, if disclosed, would violate
the Wisconsin Constitution's Article I, § 9m provision requiring

that crime victims be treated with "fairness, dignity and

respect for their privacy." The recording also contained

"sufficient details" that "could lead to identification and

invasion of privacy for young victims of a very sensitive series

of crimes." In addressing release of a redacted version, Potter

explained that doing so would render an "end result meaningless

to the viewer."

4
 No. 2014AP2536-FT

¶5 Liebmann and the Democratic Party petitioned the

circuit court for a writ of mandamus seeking release of the

records, punitive damages, and costs and attorney's fees. The

petition asserted the withheld recordings may contain evidence

of misconduct by Attorney Schimel: "Upon information and

belief, several or all of these tapes may include offensive

racial remarks and ethnic slurs, including but not limited to

stereotyped accents, as well as sexist remarks, made by Mr.

Schimel."

¶6 After viewing both recordings in camera, the circuit

court concluded neither video showed misconduct by Attorney

Schimel, but ordered both recordings disclosed. The circuit

court felt the 2009 video presented a close question because it

contained strategies and techniques used in investigating and

prosecuting sexual predators. Nevertheless, the circuit court

reasoned this video should be disclosed because the techniques

discussed were "widely known" via "books, magazine articles,

[and] TV shows." It did not think the video contained "any real
secrets" and compared prosecuting sexual predators to playing

hopscotch: when the predators find ways to get around the

State's techniques, the State has to catch up and find another

way. The circuit court was "certain" the strategies discussed

"are taught in law enforcement academies, FBI training

academies, et cetera." The circuit court decided that parents

needed to see the 2009 video so they could better protect their

children from sexual predators. The circuit court specifically

5
 No. 2014AP2536-FT

acknowledged that the 2009 video did not involve "misconduct on

the part of any of the presenters."

¶7 With respect to the 2013 video, the circuit court

reasoned disclosure was required because (1) the video did not

contain specifically identifiable names of victims; (2) the

victims' responses to the sex extortion, described by Attorney

Schimel in the video, were "perfectly natural responses to the

horrific crimes that these children were subject to," and no one

should be surprised by the "traumatic effects" these children

suffered; (3) this information is important for members of the

public to know so they can protect their children; and (4) many

of the details discussed in the video were in the original case

file and had previously been "splattered all over the Internet."

The circuit court did recognize that re-disclosing this

information now may "distress" and re-traumatize the victims,

but the court did not believe such factors outweighed the

public's right to "know the contents of these tapes."

¶8 In a summary disposition opinion and order, the court
of appeals affirmed the circuit court's decision. Release of

the two recordings at issue has been stayed during the appeal

process. In addition, the DOJ allowed the attorney representing

the Democratic Party to view both the 2009 and 2013 videos,

subject to a protective order. After viewing the videos twice,

counsel abandoned any claim that the videos contain any

misconduct by Attorney Schimel. We accepted the DOJ's petition

for review in January 2016.

6
 No. 2014AP2536-FT

II. DISCUSSION

A. Standard of Review

¶9 Our review here is de novo. See Woznicki v. Erickson,

202 Wis. 2d 178, 192, 549 N.W.2d 699 (1996). "Whether harm to

the public interest from [disclosure] outweighs the public

interest in [disclosure] is a question of law." See Newspapers,

Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979). The

legislature has created a presumption of accessibility to public

records. See Nichols v. Bennett, 199 Wis. 2d 268, 273, 544

N.W.2d 428 (1996). If a custodian denies a public records

request, he or she must give specific reasons for denying

access, and it is the role of the court to determine whether the

reasons are sufficient. See Breier, 89 Wis. 2d at 427.

Although we may benefit from the circuit court's and court of

appeals' analyses, our determination is made independently. See

Hempel v. City of Baraboo, 2005 WI 120, ¶21, 284 Wis. 2d 162,

699 N.W.2d 551. The party seeking nondisclosure has the burden

to "show that 'public interests favoring secrecy outweigh those
favoring disclosure.'" John K. MacIver Inst. for Pub. Policy,

Inc. v. Erpenbach, 2014 WI App 49, ¶14, 354 Wis. 2d 61, 848

N.W.2d 862 (quoted source omitted).

B. Applicable Law

¶10 Wisconsin is firmly committed to open and transparent

government, as evidenced by the policy expressed by the

legislature in our Public Records Law:

[I]t is declared to be the public policy of this state
that all persons are entitled to the greatest possible

7
 No. 2014AP2536-FT

information regarding the affairs of government and
the official acts of those officers and employees who
represent them . . . . To that end, ss. 19.32 to
19.37 shall be construed in every instance with a
presumption of complete public access, consistent with
the conduct of governmental business. The denial of
public access generally is contrary to the public
interest, and only in an exceptional case may access
be denied.
Wis. Stat. § 19.31. Wisconsin law does recognize three types of

exceptions to this general policy of open access: (1) statutory

exceptions; (2) common law exceptions; and (3) public policy
exceptions. See Hempel, 284 Wis. 2d 162, ¶28. When a public

records request is made, the record custodian must determine

whether the Public Records Law applies. If the law applies, the

presumption favors disclosure of the record. Id. The next step

is to determine whether any exceptions operate to overcome the

general presumption of openness. Id. "[T]he legislature

entrusted the records custodian with substantial discretion" in

making this determination. Id., ¶62.

¶11 Exceptions to the public records law's general

presumption of disclosure exist because some requests conflict

with other important policy considerations. Id., ¶28. The
custodian must conduct "the open records disclosure analysis on

a case-by-case basis." Id., ¶62. If a statutory or common law

exception applies, the analysis ends and the records will not be

disclosed. Id. If neither applies, the custodian proceeds to

the public policy balancing test, which requires a consideration

of all relevant factors to determine whether the public interest
in nondisclosure outweighs the public interest in favor of

8
 No. 2014AP2536-FT

disclosure. Id., ¶63. The test considers whether disclosure

would cause public harm to the degree that the presumption of

openness is overcome.

¶12 This case does not involve any of the statutory

exceptions set forth in Wis. Stat. §§ 19.31-.39. The DOJ

asserts one common law exception: prosecutorial files are

exempt as recognized in Foust. This court in Foust held that

"prosecutorial files are exempt from public access" as a common

law exception even after the case is closed. Id. at 430, 433-

34. In doing so, we explained that investigations and data

collected are not open for public viewing because disclosure of

this information would be "harmful to the orderly administration

of justice." Id. at 435-36. We listed multiple reasons for our

conclusion, including the discretion afforded to prosecutors and

the fact that their files "may contain historical data leading

up to the prosecution which may be in the form of anonymous

statements, informants' statements, or neighborhood

investigations at the scene of the crime." Id. at 434-35. We
noted that this material needs to be protected in order to

ensure that the public will continue to cooperate in criminal

investigations. Id. at 435.

¶13 Linzmeyer v. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646

N.W.2d 811, is another pertinent public records case. In

Linzmeyer, we held that a police report requested by a newspaper

and the alleged victims could be disclosed over the objection of

the teacher who was the subject of the police investigation.
Id., ¶¶2-3. Emphasizing the strong public interest in
9
 No. 2014AP2536-FT

investigating and prosecuting criminal activity, we recognized

that nondisclosure is appropriate when necessary to protect the

public interest in "the reputation and privacy of citizens."

Id., ¶31. Our concern was not for the individual teacher's

embarrassment but for "the public effects of the failure to

honor the individual's privacy interests." Id. We also quoted

the exemptions set forth in the Freedom of Information Act, 5

U.S.C. § 552(b)(7) (2000), and said that "when coupled with our

prior caselaw," FOIA "factors provide a framework that records

custodians can use to determine whether the presumption of

openness in law enforcement records is overcome by another

public policy." Linzmeyer, 254 Wis. 2d 306, ¶33. As pertinent

here, the Freedom of Information Act exempts records that "would

disclose techniques and procedures for law enforcement

investigations or prosecutions, or would disclose guidelines for

law enforcement investigations or prosecutions if such

disclosure could reasonably be expected to risk circumvention of

the law." Id., ¶32 (quoting 5 U.S.C. § 552(b)(7)(E)).6 The
threat that releasing a record would reveal techniques and

procedures used in "a sting or undercover operation that would

6
The Freedom of Information Act applies to federal records
and therefore is not controlling in Wisconsin Public Records
cases, but as Linzmeyer and other Wisconsin cases have
recognized, FOIA and the cases interpreting it can be used as
persuasive authority in deciding Wisconsin Public Records cases.
See Linzmeyer v. Forcey, 2002 WI 84, ¶33, 254 Wis. 2d 306, 646
N.W.2d 811; State ex rel. Hill v. Zimmerman, 196 Wis. 2d 419,
428 n.6, 538 N.W.2d 608 (Ct. App. 1995).

10
 No. 2014AP2536-FT

require secrecy" weighs against disclosure in the balancing

test. Linzmeyer, 254 Wis. 2d 306, ¶41.

¶14 This case also involves a very important public policy

consideration——of constitutional dimension——with respect to the

treatment of crime victims in Wisconsin. The Wisconsin

Constitution specifically provides: "This state shall treat

crime victims, as defined by law, with fairness, dignity and

respect for their privacy." Wis. Const. art. I, § 9m. This

policy is further embodied in Wis. Stat. § 950.04(1v)(ag)7

governing rights of crime victims and Wis. Stat. § 950.055(1)8

governing rights of juvenile crime victims. This court

recognizes "that justice requires that all who are engaged in

7
Wisconsin Stat. § 950.04(1v) provides, in part:

RIGHTS OF VICTIMS. Victims of crimes have the
following rights:

(ag) To be treated with fairness, dignity, and
respect for his or her privacy by public officials,
employees, or agencies. This paragraph does not
impair the right or duty of a public official or
employee to conduct his or her official duties
reasonably and in good faith.
8
Wisconsin Stat. § 950.055(1) provides:

LEGISLATIVE INTENT. The legislature finds that it is
necessary to provide child victims and witnesses with
additional consideration and different treatment than
that usually afforded to adults. The legislature
intends, in this section, to provide these children
with additional rights and protections during their
involvement with the criminal justice or juvenile
justice system. The legislature urges the news media
to use restraint in revealing the identity of child
victims or witnesses, especially in sensitive cases.

11
 No. 2014AP2536-FT

the prosecution of crimes make every effort to minimize further

suffering by crime victims." Schilling v. Crime Victims Rights

Bd., 2005 WI 17, ¶26, 278 Wis. 2d 216, 692 N.W.2d 623. The

public policy interest in protecting the privacy of victims of

crime——especially children affected by very sensitive crimes——

weighs heavily in favor of nondisclosure.

¶15 Having set forth the relevant framework, we now turn

to an analysis of the 2009 and 2013 recordings.

C. Analysis

1. 2009 Recording

¶16 At the 2009 training, Attorney Schimel discussed:

what undercover officers can and cannot say when attempting to

catch sexual predators, specific strategies to ensure adequate

evidence exists for trial, how to extract evidence from

computers, and how to overcome common defenses in sexual

exploitation cases. Attorney Schimel shared the specific

strategies and techniques he used, and he provided numerous

case-specific examples, even on occasion referring to the cases
by name. There is no doubt that this recording contains

specific techniques and procedures for law enforcement

investigations and prosecutions in Wisconsin. The question is

whether, because of this, application of the balancing test

makes the 2009 video an exceptional case justifying

nondisclosure. Stated otherwise, would releasing this video be

harmful to the public interest so as to overcome the general

presumption in favor of disclosure?

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 No. 2014AP2536-FT

¶17 The law does not provide an exhaustive list of

specific factors used when applying the balancing test. An

exhaustive list would be difficult if not impossible to create

given the factually specific nature of public records cases. We

review whether the custodian considered "all the relevant

factors." Hempel, 284 Wis. 2d 162, ¶63.

¶18 Attorney Schimel is an elected official, and this

factor weighs in favor of disclosure. See Linzmeyer, 254

Wis. 2d 306, ¶29. The content of the 2009 video, however, and

its potentially harmful impact on the public interest weighs

strongly in favor of nondisclosure. In the video, Attorney

Schimel discusses tactics and strategies used by law enforcement

and prosecutors to catch and convict criminals who prey on

minors. The techniques discussed involve undercover and sting

operations to catch criminals who use computers to victimize

children. The presentation occurred at a confidential training

session for prosecutors and victims' right advocates, with some

police representatives present.9 Public records containing
prosecution strategies and police tactics are not specifically

excepted from disclosure by Wisconsin statutes, but record

9
The Democratic Party argues the training seminars were
open to the defense bar, pointing to two names of attorneys on
the attendee list currently doing criminal defense work. This
argument fails to recognize the reality of the underlying facts.
At the time of the presentations, those attorneys attended the
seminar in their capacity as prosecutors. The fact that they
left their jobs as prosecutors and now represent criminal
defendants does not change the nature of the training seminars.

13
 No. 2014AP2536-FT

custodians can properly consider such content when determining

"whether the presumption of openness . . . is overcome by

another public policy," see Linzmeyer, 254 Wis. 2d 306, ¶¶32-33,

and as noted, the federal Freedom of Information Act lists this

type of record as exempt "if such disclosure could reasonably be

expected to risk circumvention of the law" and protects it

statutorily from disclosure, see 5 U.S.C. § 552(b)(7)(E).

¶19 The reason for protecting prosecutorial techniques and

local police strategies is obvious: if local criminals learn

the specific techniques and procedures used by police and

prosecutors, the disclosed information could be used to

circumvent the law. The content of the 2009 video falls

squarely into this category. Releasing this video would create

a significant risk that specific techniques and strategies being

used in Wisconsin could instantly be disseminated over the

internet and exploited by sexual predators. This information

would in essence serve as a textbook enlightening Wisconsin

criminals on how to avoid detection, elude capture, and escape
conviction. The harm arising from release would substantially

impair the ongoing battle police and prosecutors face in

protecting children and would impede efforts made to catch and

prosecute sexual predators who lurk in the shadows and anonymity

of internet websites. Although disclosing this information

directly to the Democratic Party alone would not necessarily be

harmful, releasing the 2009 video to one effectively renders it

public to all, including anyone plotting to use it to circumvent
the law. See Foust, 165 Wis. 2d at 435 (declining to release a
14
 No. 2014AP2536-FT

prosecutor's file to a defendant wanting to see his own file

because doing so would open the file to anyone who requested the

file). Releasing the 2009 video would frustrate the public

policy of investigating and prosecuting criminal activity that

in this instance would cause considerable public harm, which

overwhelmingly outweighs any public interest in viewing it. See

Linzmeyer, 254 Wis. 2d 306, ¶39.

¶20 Drawing on reasons the circuit court used in ordering

disclosure, the Democratic Party asserts: (1) the video would

be helpful to parents trying to protect their children from

predators, and (2) the techniques discussed on the video are not

novel, do not contain any secrets, and are widely known, often

seen on television shows. The Democratic Party's arguments,

like the circuit court's reasons, are flawed and erroneous.

This video is replete with police and prosecutor tactics,

specific instances of cases with descriptive details, and

practical strategies to gather evidence. This content would not

assist the average parent.
¶21 The Democratic Party's assertion that the techniques

and strategies are so widely known that disclosure would not be

harmful is equally questionable. There is no rule of law

protecting only brand new or novel prosecution techniques and

police strategies, and there is no evidence that releasing local

strategies will not lead to circumvention of the law simply

because they are also seen on television crime shows. The

Democratic Party does not cite any authority to support its
"novel" argument, and when directly asked for authority for this
15
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proposition during oral argument, the Democratic Party's

attorney was unable to provide any. Although child predators

may know in general terms various techniques taught to and

employed by police departments across the country, the specific

techniques used by police officers in a particular jurisdiction

or geographic area are not necessarily a matter of common public

knowledge. A criminal who knows the specific techniques being

used locally is much more likely to evade capture than a

criminal who, after viewing a crime show, guesses at what

techniques local police and prosecutors are using.

¶22 Another factor to balance in these cases is the

presence of "official cover-up" by public officials. Hempel,

284 Wis. 2d 162, ¶68. "The public has a very strong interest in

being informed about public officials who have been derelict in

their duty." Id. Everyone in this case, including the

Democratic Party, agrees that the video does not contain any

evidence of misconduct. Because the video reveals no misconduct

or dereliction of duty, this factor does not counter the strong
public policies supporting nondisclosure.

¶23 Additionally, the context of the records' request,

although not always relevant, should be considered here. See

id., ¶66 ("When performing a balancing test, however, a records

custodian almost inevitably must evaluate context to some

degree."). The Public Records Law does not require a requestor

to disclose his or her identity or to state a purpose for the

request. See Wis. Stat. § 19.35(1)(i). But by asserting that,
"[u]pon information and belief, several or all of these tapes
16
 No. 2014AP2536-FT

may include offensive racial remarks and ethnic slurs, including

but not limited to stereotyped accents, as well as sexist

remarks, made by Mr. Schimel," the language of the Democratic

Party's petition for a writ of mandamus suggests a partisan

purpose underlying the request. During a contested election,

the request sought records containing allegedly offensive

comments made by the candidate from the opposing political

party. And the Democratic Party persists in its pursuit of the

records, despite the fact that its attorney has now viewed the

recordings and the parties agree the recordings contain no such

offensive content. When weighed against the likely harm to law

enforcement's efforts to capture and convict sexual predators

who target children, the counterfactual justification offered

for the request clearly does not tip the balance towards

overturning the record custodian's decision.

¶24 In applying the balancing test to the 2009 video, we

conclude that the public interest in preventing release of

specific police and prosecution strategies and techniques being
taught and used in Wisconsin outweighs the general legislative

presumption that public records should be disclosed. We are a

State committed to open and transparent government, but if

disclosure results in greater public harm than nondisclosure,

the scale must tip in favor of nondisclosure, especially when

sexual exploitation of vulnerable children is at risk. Because

the 2009 video consists almost entirely of police tactics and

specific prosecution strategies in cases involving sexual
exploitation of children, disclosure would result in public
17
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harm. The public policy factors favoring nondisclosure thus

overcome the presumption in favor of disclosure. The record

custodian gave specific reasons for the decision not to disclose

the 2009 recording, and we conclude the reasons given were

legally sufficient and sound.10

10
While excerpts of the recording may fall beyond the
public policy considerations favoring nondisclosure, which
ordinarily results in the release of a redacted version under
Wis. Stat. § 19.36(6), our viewing of the recording validates
the custodian's assessment that a redacted version would be
meaningless to the viewer. See John C. v. Martha A., 592
N.Y.S.2d 229, 235-36 (Civ. Ct. 1992) (where "entire court file
is permeated with confidential" information, no part can be
opened for viewing); cf. Am. Civil Liberties Union v. Dep't of
Defense, 543 F.3d 59, 84 (2d Cir. 2008) (affirming district
court order releasing certain redacted photographs depicting
abuse of detainees at military prison, but mentioning without
objection that "[w]here 'individual recognition could not be
prevented without redaction so extensive as to render the images
meaningless,' the court ordered those photographs to be
withheld"), vacated on other grounds 558 U.S. 1042 (noting
intervening change in federal law); Harwood v. McDonough, 799
N.E.2d 859, 866-70 (Ill. App. Ct. 2003) (affirming withholding
of report under Illinois open records law where trial court
"concluded that plaintiff was not entitled to a redacted
report . . . if the result of the redaction was a document
consisting of blank pages, along with meaningless pronouns and
articles such as the words 'and,' 'or,' 'but,' etc.");
Kestenbaum v. Mich. State Univ., 327 N.W.2d 783, 788 n.10 (Mich.
1982) (observing that "redaction of the exempt information——
names and addresses of students——[under personal privacy
exemption in Michigan open records law] would render the
computer tape useless to plaintiff Kestenbaum," who sought to
use source for university directory to create political mailing
list). But cf. State ex rel. Pietrangelo v. Avon Lake, 2016-
Ohio-2974, ¶35, 55 N.E.3d 1091 ("As we noted in . . . rejecting
the . . . argument that the remainder of a redacted document
would be 'meaningless,' there is no 'exception to the explicit
duty in [the Ohio public records law] for public offices to make
available all information that is not exempt after redacting the
information that is exempt.'" (quoting State ex rel. Anderson v.
(continued)
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2. 2013 Recording

¶25 In the 2013 recording, Attorney Schimel discussed a

high-profile sex extortion case where a high school student

victimized dozens of minors before a single victim reported the

abuse. Attorney Schimel recounted the background, the

investigation, the charging decisions, the attempt to keep the

victims' identities confidential, the impact on the case when a

breach of that confidentiality revealed the identity of all of

the victims, the negative effects the disclosure of the

identities caused, and his thoughts and strategies for

prosecution.

¶26 Before we apply the balancing test, we analyze whether

the common law exception to disclosure for a prosecutor's case

files, discussed in Foust, applies to these facts. See Foust,

165 Wis. 2d at 433-35. Foust held that a district attorney's

closed files were not subject to the Public Records Law based on

the broad discretion a district attorney has in charging, the

confidential nature of the contents of a file, and the threat
disclosure poses to the orderly administration of justice. Id.

¶27 The 2013 video, of course, is not a prosecutor's

typical paper case file. Rather, the record is an oral, in-

depth presentation by Attorney Schimel, who was the prosecutor

in charge of the sex extortion case discussed. Attorney Schimel

Vermilion, 2012-Ohio-5320, ¶19, 980 N.E.2d 975)). Meaningless
redaction is particularly applicable here where the records
consist of video recordings. The nondisclosable content on the
videos permeates the recordings, making redaction futile.

19
 No. 2014AP2536-FT

shared his thought processes for charging and walked through the

case from the beginning to the end. The presentation is in

great respect the oral equivalent of a prosecutor's closed case

file. The same rationale asserted in Foust to protect closed

prosecutorial case files from disclosure under public records

requests applies to the video here. Attorney Schimel's oral

presentation included his analysis and impressions regarding

charging and how to charge, a concept Foust labeled as

confidential. Foust, 165 Wis. 2d at 433-35. The presentation

also addressed issues relating to confidentiality of victims'

identities and statements, which parallels Foust's concerns

about anonymous statements and informants' statements. See id.

at 435. Attorney Schimel discussed what would equate to

"historical data leading up to the prosecution," which Foust

expressed should be protected from public disclosure. Id.

Based on these similarities, it would be illogical to conclude

that a paper accounting of a district attorney's discretionary

processes must be kept confidential but an oral accounting of
the same, given in a confidential setting, need not. It is the

nature of the record, rather than its form or location that

matters. See Nichols, 199 Wis. 2d at 270, 274-75. ("To

conclude otherwise would elevate form over substance."); see

also Portage Daily Register v. Columbia Cty. Sheriff's Dep't,

2008 WI App 30, ¶¶18-19, 21-22, 308 Wis. 2d 357, 746 N.W.2d 525

(declining to allow sheriff's department to rely on Foust

exception as basis for withholding report merely because it was
forwarded to district attorney's office); Bldg. & Constr. Trades
20
 No. 2014AP2536-FT

Council of S. Cent. Wis. v. Waunakee Cmty. School Dist., 221

Wis. 2d 575, 587 n.3, 585 N.W.2d 726 (Ct. App. 1998)

(distinguishing private records from public records). The

substance of this 2013 video contains the same discretionary

content found in a prosecutor's file; therefore, the Foust

common law exception renders the 2013 video exempt from

disclosure under Wisconsin's Public Records Law.

¶28 Our analysis could end here because the common law

exception applies. This case, however, involves a public policy

consideration of constitutional significance, and we therefore

choose to proceed to an application of the public policy

balancing test. First, again, Attorney Schimel is a public

official, a factor weighing in favor of disclosure. Second, the

content of the video, like the 2009 video, contains prosecution

strategies and law enforcement tactics, which, as Linzmeyer

explains, weighs in favor of nondisclosure. See Linzmeyer,

¶¶32-33. Third, the 2013 video discusses the victims of the sex

extortion case and the devastating impact of these crimes,
especially after the victims' identities were discovered.

Wisconsin's constitutional commitment to the fair treatment of

victims and their privacy rights, together with this court's

commitment to minimizing victims' suffering, weigh in favor of

nondisclosure. Although we cannot always protect victims from

re-traumatization or additional suffering, the circumstances

here clearly allow us to do so.

¶29 Although we review the record custodian's decision, we
briefly explain why the four reasons the circuit court gave for
21
 No. 2014AP2536-FT

overturning the custodian's decision are inadequate and

erroneous. We do so because the Democratic Party relies on the

circuit court's reasoning to advance its position that the 2013

video should be disclosed. First, the fact that no specific

names are used on the video does not render the victims

unidentifiable. Disclosing the recording would reignite

interest in the case and allow identification in the same way it

occurred the first time around. There is sufficient factual

detail in the recording to easily connect the dots to identify

the dozens of victims, who would be re-traumatized should this

case result in a repeat exposure of their identities almost a

decade after these events occurred. Disclosure leading to re-

victimization would run afoul of Wisconsin's constitutional

commitment to treating victims with "fairness, dignity and

respect for their privacy." Wis. Const. art. I, § 9m. Further,

the victims involved here were all child victims who deserve

special treatment and protection with an emphasis on keeping

their identities confidential, "especially in sensitive cases."
See Wis. Stat. § 950.055(1). This court will "make every effort

to minimize further suffering by crime victims." Schilling, 278

Wis. 2d 216, ¶26.

¶30 Second, the circuit court's reasoning that the

victims' reactions to the crimes were "perfectly natural" and

would not be surprising to anyone is not a relevant factor in

weighing disclosure over nondisclosure. Whether a victim's

reaction is natural or excessive should not be a justification
for re-traumatizing child victims of sensitive crimes. What
22
 No. 2014AP2536-FT

must be considered is whether the victims will be re-traumatized

by renewed suffering as a result of an additional violation of

their privacy.

¶31 Third, the rationale that disclosure would help

parents protect their children from sexual predators is

unconvincing. Although this video may contain limited helpful

information on this topic, many other useful resources exist for

parents but do not present the same threat of harm to victims.

The DOJ makes available online materials helpful to concerned

parents.11 Local schools, communities, and police departments

also offer a variety of helpful resources and seminars.12

¶32 Fourth, the fact that a significant amount of the

information discussed in the recording had been previously

disseminated seven or eight years ago, although "germane to the

balancing test" see Linzmeyer, 254 Wis. 2d 306, ¶37, does not

require disclosure. This information was disclosed almost a

decade ago. As presented in the affidavit submitted by Jill J.

Karofsky, Executive Director of the Office of Crime Victim
Services, re-disclosing the details of a case typically re-

traumatizes victims. Karofsky asserts that bringing new public

attention to a case can be "crushing" for victims who have

11
See Internet Crimes Against Children Task Force, Protect
Kids Online Podcast (2016), https://www.doj.state.wi.us/dci/icac
/protect-kids-online-pko-podcast.
12
See, e.g., Internet Crimes Against Children, Milwaukee
Cty., http://county.milwaukee.gov/InternetCrimesAgains9120.htm
(last visited Dec. 19, 2016).

23
 No. 2014AP2536-FT

otherwise moved on from a case. It is not unreasonable——indeed,

it comports with common sense——to expect additional harm will be

inflicted on the victims every time a case such as this is

publicized, especially if done in a high-profile way such as a

lawsuit that is pursued through all three levels of Wisconsin's

court system with much media attention. Moreover, releasing the

2013 video creates a real risk that future victims will not

report crimes and will not cooperate with prosecutors.

Effective prosecution depends upon victims reporting in the

first instance and cooperating until the end of the case.13

¶33 In balancing the equally important public policies of

openness of public records against the constitutional

declaration demanding protection and fair treatment of victims,

coupled with the need for victim reporting and cooperation in

order to identify lawbreakers, we conclude that the Public

Records Law did not require the record custodian to release the

2013 video. The video contains no misconduct or evidence

13
This case is not about protecting an individual's privacy
interest like in Linzmeyer, where the teacher objected to the
release of a police report generated during an investigation of
possible inappropriate actions between the teacher and some
students. See Linzmeyer, 254 Wis. 2d 306, ¶31 (observing that
the public interest in protecting the reputation and privacy of
citizens is "not equivalent to an individual's personal interest
in protecting his or her own character and reputation").
Rather, the case before this court is about the public interest
in protecting the reputation and privacy of crime victims and
the concomitant public policy that such protection will
encourage victims to report crimes and cooperate in prosecution
of criminals.

24
 No. 2014AP2536-FT

showing dereliction of duty. Rather, it contains an oral

account of the prosecution of a high school student who sexually

extorted dozens of his fellow students. The account was

presented at a confidential prosecutor training seminar, and

aside from the general presumption favoring disclosure, it has

little public value. Disclosure would provide the public with

Attorney Schimel's mental processes and thoughts with respect to

a sex extortion case he prosecuted many years ago. Contrary to

Foust, releasing the video would give the public insight into

Attorney Schimel's discretionary charging decisions, and it

would likely reignite the public and media outrage associated

with the crimes at issue here. It would undoubtedly re-

traumatize and harm the victims who were minors at the time of

these crimes, and its disclosure would send a strong message to

crime victims that the continued pain that sometimes accompanies

the pursuit of justice does not end——even when a prosecution is

complete and the case is closed. The balancing test clearly

weighs in favor of nondisclosure and strongly overcomes the
presumption favoring disclosure.

III. CONCLUSION

¶34 Wisconsin and this court are firmly committed to open

and transparent government. The denial of public access occurs

only in exceptional cases. This case presents one of those

exceptional situations. The two videos requested here do not

contain any evidence of official misconduct. The circuit court,

the court of appeals, this court, and the Democratic Party all
agree on this point. Both the 2009 and 2013 videos arise from
25
 No. 2014AP2536-FT

confidential prosecutors' training sessions, and both videos

contain instruction on prosecutorial strategies and law

enforcement tactics. The 2013 recording is an accounting of a

single case and the functional equivalent of a prosecutor's case

file, which is exempt from disclosure under Foust. Further, it

contains information, which, if released, would harm the public

interest by re-traumatizing the victims and violating their

privacy rights, contrary to the policies enshrined in our state

constitution, statutes, and case law. In applying the balancing

test required by Wis. Stat. § 19.35(1)(a), the DOJ record

custodian gave specific reasons for nondisclosure, and our

review independently demonstrates that the reasons proffered are

sufficient and supported by the facts in this case. We reverse

the decision of the court of appeals and deny the writ of

mandamus.

By the Court.—The decision of the court of appeals is

reversed.

26
 No. 2014AP2536-FT.ssa

¶35 SHIRLEY S. ABRAHAMSON, J. (dissenting). Our

"Sunshine Law," Wisconsin's public records law, is a core

principle of democracy: "[T]he people must be informed about the

inner workings of their government and . . . openness in

government is essential to maintain the strength of our

democratic society."1

¶36 The majority opinion eclipses the "Sunshine Law." It

dims the lights on persons seeking information about Wisconsin

government operations and——in the instant case——shuts the lights

off on two records that show how district attorneys, charged

with prosecuting all criminal actions within their prosecutorial

units,2 fulfill their duties.

¶37 The majority opinion completely bars release of then-

Waukesha County District Attorney Brad Schimel's video

presentations at two different educational conferences.3

1
Linzmeyer v. Forcey, 2002 WI 84, ¶15, 254 Wis. 2d 306, 646
N.W.2d 811. See also Wis. Stat. § 19.31 ("[A]ll persons are
entitled to the greatest possible information regarding the
affairs of government and the official acts of those officers
and employees who represent them.").
2
Wis. Stat. § 978.05.
3
Then-District Attorney Schimel's video presentations about
former cases in his office raise an issue not discussed by the
parties.

Supreme Court Rule 20:1.9(c), as it stands now, imposes on
lawyers a duty of confidentiality to former clients. It is
arguable that lawyers can publicly discuss former cases only
with the informed consent of the client.

(continued)
1
 No. 2014AP2536-FT.ssa

¶38 The Department of Justice performs more than one task

regarding the public records law. The legislature imposes

duties on the Department of Justice regarding the public records

law. The legislature established that "[a]ny person may request

advice from the attorney general as to the applicability of [the

public records law] under any circumstances," and the "attorney

general may respond to" the request. Wis. Stat. § 19.39.4 In

On July 21, 2016, this court denied Rule Petition 15-04, In
the matter of the Petition to Modify SCR 20:1.9(c), which
addressed a lawyer's duties to former clients. The petition
proposed an amendment enabling an attorney to discuss a closed
case at an educational seminar. For a discussion of the rule
and the proposed amendment by the amendment's author, see
Michael D. Cicchini, On the Absurdity of Model Rule 1.9, 40 Vt.
L. Rev. 69 (2015).

The question whether a prosecutor may discuss a closed
criminal case at an educational conference arose at the hearing
on the rule petition. The discussants were not certain about
who is the prosecutor's client. And, whoever the client may be,
it is unclear whether a prosecutor must obtain informed consent
before discussing the details of the criminal case.

The court denied the petition. The discussants at the
hearing intimated that they may be providing further guidance on
this issue.
4
"The opinions and writings of the Attorney General have
special significance in interpreting the Public Records Law,
inasmuch as the legislature has specifically authorized the
Attorney General to advise any person about the applicability of
the Law." Milwaukee Journal Sentinel v. City of Milwaukee, 2012
WI 65, ¶41, 341 Wis. 2d 607, 815 N.W.2d 367 (2012); see also
Schill v. Wis. Rapids. School Dist., 2010 WI 86, ¶106, 327
Wis. 2d 572, 786 N.W.2d 177 (2010); State v. Beaver Dam Area
Dev. Corp., 2008 WI 90, ¶37, 312 Wis. 2d 84, 752 N.W.2d 295.

(continued)
2
 No. 2014AP2536-FT.ssa

the instant case, an employee of the Department of Justice is

the custodian of the records requested and has refused to grant

the request for release of the two videos at issue. The

Department of Justice is also a defendant in the instant case.

When the original request was made, Brad Schimel was the

Waukesha County District Attorney, and was represented by the

Department of Justice. Now, Brad Schimel is the Attorney

General, head of the Department of Justice, and is represented

by the Department of Justice.

¶39 I too wear more than one hat. I view the public

records law from three vantage points. I have participated in

numerous cases as a member of this court ruling on the

interpretation and application of the public records law. These

cases are precedent that binds us all. In my capacity as an

elected official and custodian of records, I have been the

recipient of numerous open records requests, to which I have

responded by complying with the public records law (although the

court has never ruled on whether the public records law is
applicable to it). I am also a requester. I have made numerous

The attorney general also plays an enforcement role under
the public records law when authorities deny open records
requests. Wisconsin Stat. § 19.37(b) provides that after an
authority denies access to a record, "[t]he requester may, in
writing, request . . . the attorney general[] to bring an action
for mandamus asking a court to order release of the record to
the requester" and that the "attorney general may bring such an
action." See also § 19.37(4) (attorney general may enforce
forfeitures against a records custodian that "arbitrarily and
capriciously denies or delays response to a request or charges
excessive fees").

3
 No. 2014AP2536-FT.ssa

requests for court records (that is, records under the public

law, especially those relating to the court system's fiscal

status), to the Interim Director of State Courts, an employee of

the supreme court, to which he has refused to respond. I have

not sought a writ of mandamus. I have not requested the

Attorney General or the Dane County District Attorney to bring

an action for a writ of mandamus pursuant to Wis. Stat.

§ 19.37(1).

¶40 I write this dissent guided by these three viewing

platforms——justice, records custodian, and requester.

¶41 The majority opinion follows the approach that the

Department of Justice has been taking: Prevent release of the

videos in their entirety. Do not adopt a redact and release

approach.5

¶42 In this court, the Department of Justice again seeks

to bar release of the two videos in their entirety. I agree

with the circuit court and court of appeals that the Department

of Justice has not provided evidence to support the
nondisclosure of the videos. Instead, the Department of Justice

relies on speculation, conjecture, and fear.

¶43 The Department of Justice has presented no evidence

that the two videos reveal any investigation and prosecution

practices not already known or knowable in the public sphere.

The Department of Justice has presented no evidence that

5
At the circuit court, the Department of Justice rejected
the Democratic Party's suggestion that the circuit court
consider redaction of certain parts of the videos.

4
 No. 2014AP2536-FT.ssa

information in the videos would hinder the state's ability to

prosecute sex offenders. The Department of Justice has

presented no evidence that the videos disclose personally

identifiable information about the crime victims.

¶44 As an alternative to releasing the videos in their

entirety, for the first time the Department of Justice asks a

court to view the videos for redaction.

¶45 I would remand the cause to the circuit court to

conduct proceedings to determine whether any part of the two

videos should be redacted and the remainder released in

compliance with the public records law.

¶46 I dissent because the majority opinion casts a long

shadow on several principles of Wisconsin's public records law.

¶47 I state the principles that the majority opinion

either ignores or jeopardizes, and then I discuss several of

these principles more fully in addressing whether each video in

the instant case should be released in whole or in part.

¶48 Principle: A "presumption of public access" governs
every open records request. Wis. Stat. § 19.31.

¶49 Principle: The Wisconsin Legislature has provided few

exceptions to disclosing records. Wis. Stat. §§ 19.35-.36. A

court is to "narrowly construe any exceptions to the general

rule of disclosure."6

6
Nichols v. Bennett, 199 Wis. 2d 268, 273-74, 544
N.W.2d 428 (1996).

5
 No. 2014AP2536-FT.ssa

¶50 Principle: A court should not consider the identity

of the requester or the requester's motive.7 Wisconsin Stat.

§ 19.35(1)(i) provides in relevant part:

Except as authorized under this paragraph, no request
under pars. (a) and (b) to (f) may be refused because
the person making the request is unwilling to be
identified or to state the purpose of the request.8
¶51 The majority opinion speculates that there is a

"partisan purpose" to these requests. Majority op., ¶23. This

court should not superimpose its own theories of the requester's

motives onto the requester. This court should be a force for

lawfulness. This court should separate and distance itself from

partisan politics.

¶52 A corollary of the majority opinion's view of the

requester's motive is that the opinion rests on the idea that

7
See, e.g., Juneau County Star-Times v. Juneau County, 2013
WI 4, ¶62, n.33, 345 Wis. 2d 122, 824 N.W.2d 457; Schill v. Wis.
Rapids School Dist., 2010 WI 86, ¶10 n.10, 327 Wis. 2d 572, 786
N.W.2d 177.
8
Nothing in the public records law or case law authorizes
refusal in the instant case based on the identity of the
requester or the purpose of the request.

The majority opinion (¶23) nonetheless relies on a single
sentence in Hempel v. City of Baraboo, 2005 WI 120, 284
Wis. 2d 162, 544 N.W.2d 428, to justify scrutinizing the
Democratic Party's request. Justice Prosser's opinion in
Hempel, 284 Wis. 2d 162, ¶66, stated only that "[w]hen
performing a balancing test, however, a records custodian almost
inevitably must evaluate context to some degree."

To jump from considering "context" to concluding that the
identity and reasons for the request in the instant case weigh
in favor of nondisclosure contravenes the public records law and
our precedent.

6
 No. 2014AP2536-FT.ssa

the requester agrees that the videos do not show any misconduct

on the part of then District Attorney Schimel. Majority op.,

¶22. The majority opinion further asserts that the requester

agrees that the recordings do not contain any offensive

comments. Majority op., ¶23. No such agreement about offensive

comments appears in the record. Offensive comments, if any, are

not an issue before this court.

¶53 Without any citation to Wisconsin's (or another

jurisdiction's) statutes or case law, the majority opinion

essentially states that because the videos show no misconduct or

offensive comments, the public is not harmed by the non-

disclosure. This proposition is not in keeping with Wisconsin's

commitment to open government to enable the public to monitor

and evaluate how government officials discharge their

responsibilities.

¶54 Principle: Wisconsin Stat. § 19.36(6) requires a

records custodian to disclose that part of a record that is

subject to disclosure and redact (delete) information that is
not subject to disclosure.9 If the record is in an

incomprehensible form or in a form that cannot be redacted

without revealing nondisclosable information, a transcript of

9
"[T]o the extent that [] privacy interests are implicated,
they could be protected by a redaction of the Report in
accordance with Wis. Stat. § 19.36(6)." Linzmeyer, 254
Wis. 2d 306, ¶40. Cf. Wis. Stat. § 801.21(4) (2015) (discussing
motions to seal) ("In restricting access, the court will use the
least restrictive means that will achieve the purposes of this
rule and the needs of the requester.").

7
 No. 2014AP2536-FT.ssa

the record may be made and information redacted from the

transcript. Wis. Stat. § 19.35(1)(e), (em).

¶55 Wisconsin Stat. § 19.36(6) provides for redaction as

follows:

(6) SEPARATION OF INFORMATION. If a record contains
information that is subject to disclosure under s.
19.35(1)(a) or (am) and information that is not
subject to such disclosure, the authority having
custody of the record shall provide the information
that is subject to disclosure and delete the
information that is not subject to disclosure from the
record before release.10
¶56 The majority opinion refers to this provision, the

text of which governs the instant case. Majority op., ¶24 n.10.

Rather than addressing this statutory provision directly, the

majority opinion relegates the issue of redaction to a footnote

and refers to cases from other jurisdictions that are inapposite

and unpersuasive. Majority op., ¶24 n.10.

¶57 The majority opinion's refusal to adhere to Wis. Stat.

§ 19.36(6) contravenes the basic policy of the public records

law: Disclosure is presumed and exceptions are narrowly

construed. I shall discuss the issue of redaction further. See

¶¶80-96, infra.

¶58 Principle: The records custodian is obliged to state

specific and sufficient reasons for refusing to release the

10
See also Wis. Stat. § 19.36(1) ("Any record which is
specifically exempted from disclosure by state or federal law or
authorized to be exempted from disclosure by state law is exempt
from disclosure under s. 19.35(1), except that any portion of
that record which contains public information is open to public
inspection as provided in sub. (6).").

8
 No. 2014AP2536-FT.ssa

record at issue.11 If the custodian gives no reason or an

insufficient reason, a writ of mandamus compelling the

production of records may issue. In the instant case, I examine

both the custodian's response and the Department of Justice's

briefs filed in this court for specific and sufficient reasons

for refusing to release the videos in their entirety.

¶59 Principle: "The process of police investigation is

one where public oversight is important . . . and [is] generally

[a] matter[] of public interest . . . ."12

¶60 Principle: "The United States Freedom of Information

Act (FOIA), 5 U.S.C. § 552, does not apply to states."13 The

Department of Justice's 2015 Wisconsin Public Records Law

Compliance Guide states that this court has declared that

although "the public policies expressed in FOIA may be relevant

to application of the common law balancing

test . . . [g]enerally, the Wisconsin Public Records Law

11
See Hempel v. City of Baraboo, 2005 WI 120, ¶¶25-26, 284
Wis. 2d 162, 699 N.W.2d 240; Portage Daily Register v. Columbia
Cty. Sheriff's Dep't, 2008 WI App 30, ¶¶12-14, 308 Wis. 2d 357,
746 N.W.2d 525 (the specificity requirement is designed to
provide the requester with sufficient notice of the grounds for
denial to enable the requester to prepare a challenge); ECO,
Inc. v. City of Elkhorn, 2002 WI App 302, ¶24, 259 Wis. 2d 276,
655 N.W.2d 510; Wisconsin Dep't of Justice, Wisconsin Public
Records Law Compliance Guide 15-18 (Nov. 2015) , available at
https://www.doj.state.wi.us/sites/default/files/dls/2015-PRL-
Guide.pdf (last visited Dec. 20, 2016)..
12
Linzmeyer, 254 Wis. 2d 306, ¶27.
13
Wisconsin Dep't of Justice, Wisconsin Public Records Law
Compliance Guide 2 (Nov. 2015).

9
 No. 2014AP2536-FT.ssa

provides for greater access to state governmental records than

FOIA does to federal records."14

¶61 The majority opinion does not sufficiently caution

that FOIA does not govern Wisconsin's public records law.

¶62 These principles inform my dissent.

¶63 Today, the majority opinion significantly dims the

lights on transparency in government and shuts off some lights

by concluding that the Department of Justice may withhold both

of the videos in their entirety.

¶64 Because each video presents some different issues, I

first address whether the 2009 video of then District Attorney

Schimel's educational presentation should be released in whole

or in part. I then examine whether the 2013 video of then-

District Attorney Schimel's educational presentation should be

released in whole or in part.

I. The 2009 Video

¶65 The majority opinion rests on three grounds:

(A) It applies the common-law balancing test to determine
whether the public interest in nondisclosure of the

2009 video outweighs the public interest in

disclosure. Majority op., ¶16.

(B) It relies on the federal Freedom of Information Act

(FOIA). Majority op., ¶13.

14
Wisconsin Dep't of Justice, Wisconsin Public Records Law
Compliance Guide 2 (Nov. 2015).

10
 No. 2014AP2536-FT.ssa

(C) It bars release of the 2009 video in its entirety, and

refuses to consider redaction of any part of the

video. Majority op., ¶24 n.10.

A

¶66 In barring release of the entire 2009 video, the

majority opinion balances the presumption of and public interest

in openness against the public interest in nondisclosure.

¶67 The public interest in the government's investigating

and prosecuting criminal activity is "strong." Majority op.,

¶13. The majority opinion considers the strong public interest

in disclosing information about government operations to catch

sexual predators who prey on children and to educate parents

about sexual predators of children and their use of the

internet.

¶68 In the instant case, the alleged countervailing public

interest is that a record should not be disclosed when the

record gives criminals information regarding law enforcement

techniques and procedures in Waukesha County and Wisconsin that
they could use to circumvent the law. Majority op., ¶¶16, 18.

¶69 The Department of Justice has the burden to show that

the presumption of openness and the public interests favoring

disclosure are outweighed by the public interests favoring

secrecy. Majority op., ¶9.

¶70 The majority opinion supports its conclusion that the

Department of Justice has met its burden with several arguments.

¶71 Several times it notes that the presentation on the
video was given at a confidential training session for

11
 No. 2014AP2536-FT.ssa

prosecutors and victims' right advocates, with some police

representatives present.15 Majority op., ¶18. Despite the

Department of Justice's assertion that these seminars are

confidential and closed to persons not associated with

prosecution and law enforcement, attendees at the presentation

were not informed in the video or distributed materials that

they were bound to secrecy.16

15
An affidavit of Ray Korte, the Director for the Wisconsin
Department of Justice's Criminal Litigation Unit, is attached to
the Department of Justice's Motion to Dismiss the Petition and
Quash the Proposed Writ in the instant case. The affidavit
states: "The attendees are almost exclusively prosecutors and
DOJ staff. Former DAs and ADAs who continue to make themselves
available as special prosecutors may also attend, but only if
that person does not also provide defense attorney services."
The affidavit further states: "The expectation of the
presenters is that the audience is limited . . . and that the
information shared is for use only by prosecutors and those
assisting with prosecutions and investigations and, at times, by
employees who aid crime victims."
16
The circuit court impliedly found that, despite the
Department of Justice's asserting that these seminars are closed
to the public, attendees at the presentation were not bound to
secrecy:

THE COURT:. . . What happens to the people like Mr.
Verhoff and Mr. Kiefer who have flipped over to the
defense side, are they under any obligation not to use
any of this information in their pursuit of their
client's causes?

[ASSISTANT ATTORNEY GENERAL]: Well, I guess I'll
split that up. I don't know that there's any kind of
agreement from these conferences. The understanding
is these are for people who are in [sic] the
prosecutorial side. But I guess it's always a risk
whenever anyone knows something they'll flip and then
for the other side at some point. . . .

12
 No. 2014AP2536-FT.ssa

¶72 As Judge Niess colorfully and correctly stated: The

video really is "Investigating Child Predators 101."17 The

circuit court explicitly found that the videos repeat

information that has been made public in several venues.

17
The judge was apparently referring to "To Catch a
Predator," a TV program that ran from 2004-2007. It was a
reality television series that featured hidden camera
investigations by the television program Dateline NBC. People
were lured to meet with a decoy under the pretense of sexual
contact with a minor and then were confronted on TV. In some
episodes law enforcement officials were involved, leading to
arrests. Wikipedia, To Catch a Predator,
https://en.wikipedia.org/wiki/To_Catch_a_Predator (last visited
Dec. 20, 2016).

A spin-off book, To Catch a Predator: Protecting Your
Children from Online Enemies Already in Your Home, was published
in 2007. See Publishers Weekly, Feb. 12, 2007.

13
 No. 2014AP2536-FT.ssa

Indeed, the internet is replete with readily available

information substantially similar to that in the videos.18

¶73 That information in the 2009 videos at issue is

publicly known or publicly available weighs in favor of release.

Linzmeyer v. Forcey, 2002 WI 84, ¶37, 254 Wis. 2d 306, 330, 646

N.W.2d 811, 821. The majority opinion pays lip service to this

principle but does not apply it to the instant case. See

majority op., ¶21.

¶74 After looking at the video and examining public

sources of information about law enforcement techniques in

capturing sexual predators of children using the internet, I

18
See, e.g., Louise Tickle, How Police Investigators Are
Catching Paedophiles Online, The Guardian (Aug. 22, 2012, 4:00
AM), https://www.theguardian.com/social-care-
network/2012/aug/22/police-investigators-catching-paedophiles-
online ("When caught . . . they say things like 'it was just a
fantasy' but you find them with lubricants and toys . . . .");
Walter Glenn, How to Hide Your Porn, Lifehacker (Feb. 20, 2014,
4:30 PM), http://lifehacker.com/how-to-hide-your-porn-
1525454917; Paula McMahon, Feds: Broward Child Porn Suspect Used
Encryption To Hide Files, SunSentinel (Sep. 23, 2015, 12:52 AM),
http://www.sun-sentinel.com/local/broward/fl-child-porn-
encryption-20150922-story.html; Susan Saulny, Sex Predator
Accusations Shake a Wisconsin Town, N.Y. Times (Feb. 10, 2009),
http://www.nytimes.com/2009/02/11/us/11wisconsin.html?_r=0
(describing a high-profile Wisconsin case that is the subject of
the 2013 video and how the perpetrator organized files on his
computer); Ty E. Howard, Don't Cache Out Your Case: Prosecuting
Child Pornography Possession Laws Based on Images Located in
Temporary Internet Files, 19 Berkeley Tech. L.J. 1227 (2004)
(discussing how forensic investigators examine caches containing
internet files and the legal factors and defenses in possession
cases); Jason B. Sheffield & Douglas N. Peters, From Chat Room
to Courtroom: The Internet, Experts, and Entrapment, Champion,
Aug. 2015, at 34 (discussing how to use evidence to mount an
entrapment defense and how to distinguish between fantasy
roleplay and predatory behavior).

14
 No. 2014AP2536-FT.ssa

conclude, as did the circuit court and court of appeals, that

the Department of Justice has not demonstrated that the contents

of the 2009 video are not publicly known or that the contents of

the 2009 video reveal any information that is peculiar to

Waukesha County or Wisconsin prosecutions.

¶75 Neither the Department of Justice nor the majority

opinion offers an illustration (even a guarded one) of any local

law enforcement technique that is distinctively used in Waukesha

County or the state or explains how the release of the 2009

video would enable a criminal to circumvent Wisconsin law. The

whole discussion that releasing the 2009 video would create a

significant risk is ipse dixit; that is, there is a significant

public risk to effective law enforcement only because the

Department of Justice and the majority opinion say so. Majority

op., ¶¶19, 20.

¶76 The law enforcement interest that the Department of

Justice and the majority opinion identify (but do not

demonstrate) does not overcome the statutory presumption of
openness in the instant case. In any event, the majority

opinion should not be read as adopting a per se rule that any

time a requested record implicates any law enforcement technique

or prosecutorial strategy, the record will be withheld from

public view. Indeed, the Department of Justice's brief explains

that it is not asking for any sort of blanket exception.

Rather, the Department of Justice's position is that law

15
 No. 2014AP2536-FT.ssa

enforcement training records must be analyzed on a case-by-case

basis.19

B

¶77 I turn now to the Department of Justice and majority

opinion's reliance on the federal Freedom of Information Act

(FOIA) and the Linzmeyer decision to support their conclusion.

Majority op., ¶¶13, 18. This reliance is misplaced.

¶78 Wisconsin's public records law provides for greater

access to records than FOIA provides. "Wisconsin courts have

more effectively enforced the public records statute . . . than

federal courts have enforced the federal Freedom of Information

Act." Wis. Family Counseling Servs., Inc. v. State, 95

Wis. 2d 670, 672-73, 291 N.W.2d 631 (Wis. App. 1980) (also

noting that the language in Wisconsin's public records law

provides for greater access than FOIA, citing Constance Y.

Singleton & Howard O. Hunter, Statutory and Judicial Responses

to the Problem of Access to Government Information, 1979 Det.

Coll. L. Rev. 51, 70-71).
¶79 FOIA is not binding on Wisconsin records custodians or

courts, and it does not lower the bar on when law enforcement

records may be withheld in Wisconsin. Although FOIA may assist

in determining "whether the presumption of openness in law

enforcement records is overcome by another public policy,"20 its

use is limited.
19
Reply Brief of the Wis. Dep't of Justice & Kevin Potter
at 5.
20
Linzmeyer, 254 Wis. 2d 306, ¶33.

16
 No. 2014AP2536-FT.ssa

C

¶80 Without reference to any Wisconsin case law directing

a records custodian to redact any information that should not be

disclosed, the majority opinion declares that the entire video

is barred from public view. The majority opinion relegates the

subject of redaction to a footnote.

¶81 The majority opinion baldly asserts that redaction is

not an option because the records at issue are videos, rather

than text documents, and cannot be redacted. Majority op., ¶24

n.10. Nothing in the record reveals whether this assertion is

true. If it is true, a transcript can be prepared and

redactions shown. Wis. Stat. § 19.35(1)(em). It appears,

however, that videos can be redacted.21

¶82 The majority opinion also states, without any support,

that releasing the 2009 video with redactions would present a

video that would be "meaningless."

¶83 The majority opinion does not attempt to clarify what

it means by "meaningless." It does, however, cite to an
Illinois appellate court decision. Majority op., ¶24 n.10. The

Illinois court concluded that a redacted document would be

meaningless when "the result of the redaction was a document

consisting of blank pages, along with meaningless pronouns and

21
See, e.g., Schwartz v. United States Drug Enf't Admin.,
No. 13CV5004CBARML, 2016 WL 154089, at *20 (E.D.N.Y. Jan. 12,
2016) ("[T]he DEA has not overcome FOIA's presumption of
disclosure and must disclose the requested portion of the Video,
subject only to the redaction discussed above.").

17
 No. 2014AP2536-FT.ssa

articles [sic] such as the words 'and,' 'or,' 'but,' etc."

Harwood v. McDonough, 799 N.E.2d 859, 866 (Ill. App. 2003).

¶84 In the instant case, redactions would not result in a

meaningless document as defined by the Illinois court. We know

because the Department of Justice tells us so. A records

custodian seeking to withhold a record may satisfy its burden by

searching the record and giving a reasonably detailed

explanation for refusing to release all or part of the record.

"If a custodian denies a public records request, he or she must

give specific reasons for denying access, and it is the role of

the court to determine whether the reasons are sufficient."

Majority op., ¶9.

¶85 In fulfilling its obligation to give specific and

sufficient reasons for refusing to turn over the 2009 video in

its entirety, the Department of Justice cites in its opening and

reply briefs portions of the 2009 video that the Department of

Justice contends should not be disclosed. It cites to comments

in the 2009 video about undercover strategies, helpful types of
evidence, Department of Justice litigation defenses, technology

and creation of files, and examples from sensitive cases.22

¶86 These specific portions of the 2009 video cited by the

Department of Justice, should I even agree that they should be

redacted (and I do not), run about 30 minutes. The entire 2009

22
See Corrected Opening Brief of the Wis. Dep't of Justice
& Kevin Potter at 3-4, 17; Reply Brief of the Wis. Dep't of
Justice & Kevin Potter at 5-6.

18
 No. 2014AP2536-FT.ssa

video runs about 74 minutes.23 Thus, over half of the video

presentation apparently would be available for the public.

¶87 Simple arithmetic undercuts the majority opinion's

assertion that the videos would be meaningless if redacted.

Furthermore, my in camera view of the video contravenes the

majority opinion's unsupported assertion, majority op., ¶24

n.10, that "the nondisclosable content on the videos permeates

the recordings, making redaction futile."

¶88 The Department of Justice has not demonstrated that

the 2009 video is permeated with information that must be

redacted under its view of the public records law and that

redaction would render the video meaningless.

¶89 Addressing redaction, the majority opinion does not

rely on the Wisconsin redaction statute, Wis. Stat. § 19.36(6),

or Wisconsin precedent. Indeed, the majority opinion relies

only on distinguishable out-of-state cases. See majority op.,

¶24 n.10.

¶90 The majority opinion's reliance, for example, on John
C. v. Martha A., 592 N.Y.S.2d 229 (N.Y. Civ. Ct. 1992), is

misplaced. John C. involved a New York City Municipal Court

landlord-tenant dispute and was not an open records case. The

landlord's counsel provided the court information about the

medical condition of the tenant's husband; the confidential

medical information was obtained illegally and permeated the

whole court file. John C., 592 N.Y.S.2d at 235.

23
The Department of Justice takes a similar approach to
withholding the 2013 video, as well.

19
 No. 2014AP2536-FT.ssa

¶91 In Kestenbaum v. Michigan State University, 327

N.W.2d 783, 788 n.10 (Mich. 1982), without discussion or

explanation, the Michigan court stated that a computer tape

should not be released because redaction would render the tape

"useless" to the requester. The majority opinion in the instant

case extracts this language from the Michigan case that appears

to support the majority opinion's view without comparing the

Michigan and Wisconsin public records laws and without analyzing

the meaning of "useless" and whether redaction makes the 2009

video "useless" in the instant case.

¶92 In contrast, in State ex rel. Pietrangelo v. City of

Avon Lake, 55 N.E.3d 1091, ¶35 (Ohio 2016), the Ohio supreme

court noted that a redacted document must be released even if

"meaningless": Ohio (like Wisconsin) has no law allowing a

public official to refuse to release a redacted document even if

it is "meaningless" or "useless."

¶93 The majority opinion also relies on a federal Second

Circuit Court of Appeals case, American Civil Liberties Union v.
Department of Defense, 543 F.3d 59 (2nd Cir. 2008), for the

proposition that a redacted record need not be released if the

redactions render it meaningless. This case provides little, if

any, support for the majority opinion.

¶94 Using FOIA, the American Civil Liberties Union

attempted to obtain photographs of detainees held by government

forces abroad depicting prisoner abuse by these forces. The

defendant government entities justified nondisclosure under 5
U.S.C. § 552(b)(6) and (7)(C).

20
 No. 2014AP2536-FT.ssa

¶95 FOIA provides for redaction. See 5 U.S.C. § 552(b)

("Any reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of

the portions which are exempt under this subsection.").

¶96 Both the federal district court and federal court of

appeals ordered redacted photographs released in American Civil

Liberties Union.24 The courts discussed redaction, but most

photographs were released without redaction. The Second Circuit

court noted that "[w]here individual recognition could not be

prevented without redaction so extensive as to render the images

meaningless" the district court properly withheld those photos,

but the Second Circuit court agreed with the district court's

dismissal of "speculative [] risk[s] that persons depicted in

the photographs might recognize themselves or be recognized by

members of the public in spite of the redactions." Am. Civil

Liberties Union, 543 F.3d at 84. No further discussion of

redaction ensued.25 Unlike the Second Circuit court's opinion in

the American Civil Liberties Union case, our court's majority

24
For a supplemental order by Judge Hellerstein in the
Southern District of New York releasing photographs, see
American Civil Liberties Union v. Department of Defense, No.
04Civ.415(AKH), 2006 WL 1722574 (S.D.N.Y. 2006).
25
On petition for a writ of certiorari, the United States
Supreme Court "vacated" the judgment and remanded the case to
the federal circuit court of appeals. The United State Supreme
Court did not remand the case under FOIA. Rather, the remand
was "for further consideration in light of Section 565 of the
Department of Homeland Security Appropriations Act,
2010 . . . ." Dep't of Defense v. Am. Civil Liberties Union,
558 U.S. 1042 (2009).

21
 No. 2014AP2536-FT.ssa

opinion refusing to redact and barring disclosure is based on

speculative risks.

¶97 In sum, in applying its amalgamation of public records

law to prohibit release of the 2009 video in its entirety, the

majority opinion (like the Department of Justice) dismisses

valid public policy concerns while embracing hollow talk lauding

the secrecy of publicly known prosecutorial strategy and police

techniques.

II. The 2013 Video

¶98 The 2013 video is a recording of a presentation that

then Waukesha County District Attorney Schimel gave to share the

knowledge he gleaned during the prosecution of Anthony Stancl, a

high-profile sex extortion case. The presentation is

essentially a "war story" depicting how the District Attorney

handled the case, including the background of the case, the

investigation, the charging decisions, the impact on victims,

and more. Majority op., ¶25. This story has already been

publicly divulged by then-District Attorney Schimel and was
reported widely in Wisconsin and across the country.26

¶99 The majority opinion focuses its discussion justifying

withholding the 2013 video in its entirety on two grounds:

26
The circuit court reported that it "did a Google search
of the perpetrator here and in a half a second came up with
15,300 entries about this case." Counsel for the Department of
Justice agreed with the circuit court that coverage of the
Stancl case was widespread. My search located many articles, as
well, including the following: Susan Saulny, Sex Predator
Accusations Shake a Wisconsin Town, N.Y. Times (Feb. 10, 2009),
http://www.nytimes.com/2009/02/11/us/11wisconsin.html?_r=0l.

22
 No. 2014AP2536-FT.ssa

(A) A common-law exception for prosecutors' case files, as

described in State ex rel. Richards v. Foust, 165

Wis. 2d 429, 477 N.W.2d 608 (1991). Majority op.,

¶27.

(B) Victims' rights, as set forth in Article I, Section 9m

of the Wisconsin Constitution and Wis. Stat.

§§ 950.04(1v)(ag),27 .055.28 Majority op., ¶14.

A

¶100 The majority opinion characterizes the 2013 video as

an "oral equivalent" of the district attorney's prosecutorial

files and reads the Foust case as not subjecting the district

attorney's closed files to the public records law "based on the

broad discretion a district attorney has in charging, the

confidential nature of the contents of a file, and the threat

disclosure poses to the orderly administration of justice."

Majority op., ¶26 (citing Foust, 165 Wis. 2d at 433-35).

¶101 This extension of Foust's common-law exception to the

public records law to the instant case overlooks the factors

27
Section 950.04(1v)(ag) provides:

Victims of crimes . . . [are] [t]o be treated with
fairness, dignity, and respect for . . . privacy by
public officials, employees, or agencies. This
paragraph does not impair the right or duty of a
public official or employee to conduct his or her
official duties reasonably and in good faith.
28
In addition to factoring in victims' rights, the
majority's application of the balancing test to the 2013 video
raises the same issues that I discuss above. As an alternative
to relying on Foust, the majority opinion also applies the
balancing test.

23
 No. 2014AP2536-FT.ssa

that drove the Foust decision: protecting confidential

informants' identities and protecting prosecutors' discretion.

Foust, 165 Wis. 2d 429, 435-37. The Department of Justice has

not demonstrated that either of these factors is present in the

instant case.

¶102 Foust did not enshrine the entire prosecutorial file

beyond the public's view. This court has recognized that not

all documents in a prosecutor's file are subject to the common-

law exception to disclosure. See Nichols v. Bennett, 199

Wis. 2d 268, 544 N.W.2d 428 (1996) (the document's nature and

not its location determines its status under the public records

law). "[D]ocuments integral to the criminal investigation and

prosecution process are protected 'from being open to public

inspection.'" Nichols, 199 Wis. 2d at 275 n.4 (quoting Foust,

165 Wis. 2d at 434).

¶103 The Department of Justice has not shown that the

content of the 2013 video is integral to the closed case or to

future open criminal investigations, especially in light of the
publicity surrounding Stancl's case.

¶104 The Department of Justice's brief, citing Linzmeyer,

254 Wis. 2d 306, ¶26, acknowledges that balancing the public

policies for and against release requires "special care."29 Yet

the Department of Justice does not take and has not taken

"special care." The Department of Justice acknowledges that the

records custodian must demonstrate how the release of the

29
Corrected Opening Brief of the Wis. Dep't of Justice &
Kevin Potter at 8.

24
 No. 2014AP2536-FT.ssa

requested information will create a risk of "circumvention" of

the law.30 The Department of Justice does not do so, and neither

does the majority opinion.

¶105 My objection to extending Foust to the instant case

does not elevate form (files vs. oral presentation) over

substance (content of the video). Rather, the majority

opinion's extension of Foust violates the essence of the Foust

decision and contravenes the express legislative mandate that

exceptions to open records be construed narrowly. See Nichols,

199 Wis. 2d at 273; Fox v. Bock, 149 Wis. 2d 403, 411, 438

N.W.2d 589 (1989).

B

¶106 Protection of crime victims is an important

consideration in the instant case under the Wisconsin

constitution, statutes, and case law. There is no disagreement

on this point.

¶107 In performing the balancing test to justify

nondisclosure of the 2013 video on grounds of protecting crime
victims, the majority opinion (like the Department of Justice)

views the protection of crime victims as outweighing the

presumption of openness of public records in the instant case.

¶108 As he was trying this case, the then-District Attorney

wanted to get the information he learned in prosecuting the

30
Corrected Opening Brief of the Wis. Dep't of Justice &
Kevin Potter at 13-14.

25
 No. 2014AP2536-FT.ssa

Stancl case to kids and parents.31 The circuit court agreed that

the information could be useful for parents. The majority

opinion, in contrast, justifies not releasing the videos by

stating that many other useful resources exist for parents. See

majority op., ¶31.

¶109 The majority opinion accepts the Department of

Justice's view of the balancing. But the Department of Justice

and the majority opinion ignore the comments of the Attorney

General, a key figure in the administration of the public

records law, with regard to the relationship of the public

records law and the laws on protecting crime victims.

¶110 The then-Attorney General explained in 2012 that

neither the constitutional provisions nor the Wisconsin statutes

relating to crime victims factor into the open records balancing

test any more than other factors.32

31
Michael Joseph Gross, Sextortion at Eisenhower High, GQ
(June 30, 2009), available at http://www.gq.com/story/wisconsin-
high-school-sex-scandal-online-facebook ("Brad Schimel, Waukesha
County D.A., says he hopes the Stancl case will be 'a two-by-
four upside the head to parents,' encouraging them to get
involved in their children's lives online."); Laurel Walker,
Stancl gets 15 years in prison in Facebook coercion case,
Milwaukee Journal Sentinel (Feb 24, 2010), available at
http://archive.jsonline.com/news/waukesha/85252392.html ("After
the sentence was imposed, with Stancl taken immediately to
prison, [then-District Attorney] Schimel said outside the
courtroom that he wasn't sure this case, with all its publicity,
was getting through to kids, because new cases of sexting have
continued to occur. 'I'm just not sure they're hearing this
message,' he said. 'I hope their parents are.'").
32
This memorandum dated April 27, 2012, is available at
https://www.doj.state.wi.us/sites/default/files/dls/act-283-
advisory.pdf.

(continued)
26
 No. 2014AP2536-FT.ssa

¶111 In April 2012, then-Attorney General J.B. Van Hollen

advised interested parties about the relation of the public

records law and the victim rights legislation as follows:

The new statutory provisions created by Act 283
[relating to victim rights] do not prohibit law
enforcement agencies or other public entities from
disclosing personal identifiers of crime victims and
witnesses in response to public records
requests. . . .

Privacy, confidentiality, and safety concerns related
to victims and witnesses have been and should continue
to be carefully considered by records custodians when
making public records release decisions, however.
These important concerns generally are addressed in
case-by-case application of the public records
balancing test which, under appropriate circumstances,
allows sensitive information to be redacted or
withheld.

The Wisconsin Department of Justice, echoing Wis. Stat.

§ 950.04(1v)(ag), (see ¶99 n.27, supra), quoted and reaffirmed

Attorney General Van Hollen's view in Wisconsin Public Records

Compliance Guide at 39 (Nov. 2015).33

See ¶38 n.4, supra, explaining that the court gives special
weight to the Attorney General's opinions and writings on the
public records law.
33
The Compliance Guide states at 39:

2011 Wisconsin Act 283 created three statutory
provisions, Wis. Stat. §§ 950.04(1v)(ag), (1v)(dr),
and (2w)(dm), related to disclosure of personally
identifying information of victims and witnesses by
public officials, employees or agencies, which were
intended to protect victims and witnesses from
inappropriate and unauthorized use of their personal
information. These statutes are not intended to and
do not prohibit law enforcement agencies or other
public entities from disclosing the personal
identities of crime victims and witnesses in response
(continued)
27
 No. 2014AP2536-FT.ssa

¶112 Regarding crime victims, the majority opinion does not

hold the Department of Justice to the principle that the records

custodian must state specific and sufficient reasons for

nondisclosure and that a court must determine whether the

reasons given are sufficient. Majority op., ¶¶28-33. The

majority opinion departs from this precedential requirement

without reason.

¶113 No victims are identified in the video. Both the

circuit court and the Assistant Attorney General representing

the Department of Justice agreed that nothing in the video

suggests who the victims were. To support its conclusion that

release of the 2013 video has the potential for re-victimizing

crime victims and imposes too high a cost on crime victims in

the instant case, the Department of Justice and the majority

opinion rely on Jill J. Karofsky's affidavit. Jill Karofsky is

Executive Director of the Office of Crime Victim Services in the

Department of Justice.

¶114 Director Karofsky is very knowledgeable about victims.
Her affidavit, however, makes generalized statements about crime

victims without addressing the 2013 video and without taking a

position on whether the video at issue should be disclosed.

¶115 For example, Director Karofsky's affidavit fails to

consider the number of victims in the Stancl case, the extensive

to public records requests, although those public
records duties should continue to be performed with
due regard for the privacy, confidentiality, and
safety of crime victims and witnesses.

28
 No. 2014AP2536-FT.ssa

publicity that the case received, the years that have elapsed

since the incident, whether any of the 39 victims could be

identified in the video, and the difficulty or ease of

identifying the victims by examining past publicity of the

case.34

¶116 The Department of Justice's reply brief states: "It

is the Department as a whole——not Karofsky——that concluded that

these generally applicable considerations militate against

disclosure of these particular videos."35 Instead of complying

with the requirement of specificity, the Department of Justice's

brief asks this court to give deference to the Department when

it is protecting crime victims.

¶117 The Department of Justice has not fulfilled its burden

to show that the public interests favoring disclosure are

outweighed by the public interests favoring secrecy in the

instant case justifying barring release of the 2013 video in its

entirety. See majority op., ¶9.

¶118 The entire 2013 video runs a little over 70 minutes.
The 2013 video, like the 2009 video, should be reviewed on

34
As the majority opinion acknowledges, the victims'
identities were already disclosed publicly years ago. This
consideration weighs in favor of disclosure of the 2013 video,
or at least parts thereof. Linzmeyer, 254 Wis. 2d 306, ¶37.
35
Reply Brief of the Wis. Dep't of Justice & Kevin Potter
at 6 n.3.

29
 No. 2014AP2536-FT.ssa

remand by the circuit court to determine which parts of the 2013

video, if any, should be redacted.36

¶119 By concluding that the protection of crime victims in

the instant case overcomes the legislatively created presumption

of openness, the majority opinion offers no workable limits on

when protection of crime victims will or will not outweigh the

presumption of openness. When a victim of a crime is not

identified but is implicated in the record, what is the weight

of the thumb on the scale for nondisclosure? Does the majority

opinion intend to promulgate a per se rule that protection of

crime victims who are not identified but may be implicated

always defeats the presumption of openness of records? I think

not.

¶120 I would remand the cause to the circuit court to

conduct proceedings to determine whether any part of the 2013

video should be redacted, and what part of the video should be

released in compliance with the public records law.

* * * *
¶121 I write separately because the majority opinion fails

to follow principles and procedures the legislature and courts

have set forth and because it reaches the wrong result. Along

the way to reach its result, the majority opinion extends

exceptions to the public records law and, in effect, renders

meaningless the statutory direction to redact.

36
The 2013 video describes an undisclosed and traumatic
fact about one of the unidentified victims. This reference
might be redacted.

30
 No. 2014AP2536-FT.ssa

¶122 Because the majority opinion cannot point to a basis

for prohibiting redaction in the instant case, I would remand

the cause to the circuit court to redact any information

justified under the public records law and release the rest of

the videos.

¶123 The question for me is: What has the majority

achieved with its opinion grounded in speculative, abstract, and

unsubstantiated fears? The answer for me is: A dimming of the

light on public oversight of government, especially in matters

pertaining to criminal justice.

¶124 For the reasons set forth, I write separately.

¶125 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

31
 No. 2014AP2536-FT.ssa

1