Jan. 3, 2017 – The Wisconsin Supreme Court, in a 5-2 decision, has denied the Democratic Party of Wisconsin’s public records request for video recordings held by the Wisconsin Department of Justice (DOJ), reversing lower court decisions.

The state’s Democratic Party submitted a records request to DOJ in September 2014, seeking any presentation materials from training programs conducted by Brad Schimel.

At the time, Schimel was the district attorney for Waukesha County but seeking election as the state’s attorney general. Schimel won the election in November 2014.

DOJ’s records custodian identified two records responsive to the request: video recordings of Schimel speaking on the topics of victim confidentiality and the prosecution of online child exploitation cases. Schimel gave the presentations at conferences attended by prosecutors and advocates for victims’ rights.

Ultimately, the custodian denied the party’s request for records, concluding that the public interest in nondisclosure outweighed a presumption in favor of release. Specifically, the custodian concluded the presentations contained litigation strategies and included case details that could violate victim privacy rights if disclosed.

The Democratic Party of Wisconsin sought a writ of mandamus to compel disclosure of the presentations. The party believed the tapes could contain evidence of misconduct by Schimel, including offensive racial and/or sexist remarks and ethnic slurs.

The circuit court reviewed the presentations in camera and concluded the videos did not contain evidence of misconduct by Schimel. However, the court ordered release of the videos anyway, concluding the litigation strategies discussed were widely known and release could help parents protect their children from online sexual predators.

In addition, the court noted that the videos did not contain victim names, and case details discussed were already publicized on the internet through media coverage. The Wisconsin Court of Appeals affirmed the circuit court’s decision to order release. But release of the tapes was halted pending appeal to the Wisconsin Supreme Court.

Pending appeal, the DOJ allowed the Wisconsin Democratic Party’s attorney to review the tapes. At that time, the party abandoned any claims of misconduct by Schimel. But the parties still disputed whether the tapes should be released under public records law.

In Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2016 WI 100 (Dec. 28, 2016), the supreme court concluded the tapes fell under common law exceptions that overcome the presumption favoring disclosure of public records.

The first involves a policy to protect prosecutorial techniques and law enforcement strategies. “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,” wrote Justice Rebecca Bradley.

“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,” noted R. Bradley, rejecting the claim that release would benefit parents.

The majority also rejected the party’s claim that information contained in the tapes is widely known. “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,” Justice R. Bradley wrote.

In the second video, Schimel discussed a high-profile sex extortion case involving a high school student who victimized minors. The majority ruled that Schimel’s oral presentation about the details and his thought processes were exempt from a public records request, just as a prosecutor’s closed case files are exempt.

“[I]t 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,” Justice R. Bradley wrote.

Under a balancing test, the majority also ruled that nondisclosure wins the day because of significant victim privacy rights that are embedded in the state constitution. “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,” R. Bradley wrote.

Two Justices Dissent

Justice Shirley Abrahamson wrote a dissenting opinion, joined by Justice Ann Walsh Bradley, concluding the majority opinion “dims the lights on persons seeking information about Wisconsin government operations” and how district attorneys fulfill their duties.

Abrahamson said the DOJ offered no evidence that the tapes reveal prosecutorial techniques that are not already publicly known or knowable, that the tapes would hinder prosecutorial efforts, or that they contain personally identifiable information.

“I would remand the case 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,” Justice Abrahamson wrote.

Justice Abrahamson concluded that the majority’s opinion improperly extends an exception for closed prosecutorial files under a prior decision aimed at protecting prosecutorial discretion and the identity of confidential informants.

“The Department of Justice has not demonstrated that either of these factors is present in the instant case,” she wrote.

Abrahamson also said that protecting the privacy of crime victims is an important consideration, but the videos do not disclose the identity of any victims in this case:

“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. …”