Court: DA can’t sue to block records release (UPDATE)

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By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — Wisconsin’s elected officials don’t have the right to sue to block the release of public records pertaining to them, the state Supreme Court affirmed Friday in a ruling open government advocates hailed as a victory.

The case stems from a dispute between Vilas County District Attorney Albert Moustakis and the state Department of Justice. The Lakeland Times newspaper asked the DOJ in 2013 for records tied to an agency investigation into complaints about Moustakis’ conduct.

Court filings don’t detail the allegations, although Moustakis has said they were leveled by a political rival and didn’t involve on-duty misconduct. The DOJ has noted in court filings the investigation found the complaints were unsubstantiated, but Moustakis still filed a lawsuit in 2014 seeking to block disclosure.

Wisconsin’s open records law allows public employees to sue to block disclosure of records pertaining to disciplinary proceedings, records obtained through search warrants or subpoenas and records prepared by employers who aren’t government agencies. The DOJ argued that the law clearly doesn’t extend the right to sue to elected officials such as Moustakis. Both a Lincoln County judge and a state appellate court agreed.

Moustakis argued that he’s a state employee and is therefore allowed to sue. The court disagreed and sided with the lower courts, saying Moustakis’ argument creates confusion and doesn’t fit with any reasonable reading of the open records law.

Moustakis’ attorney, Ben Krautkramer, said he hadn’t read the decision and had no immediate comment. A DOJ spokesman said only that the agency was reviewing the ruling.

Bill Lueders, president of the Wisconsin Freedom of Information Council, praised the ruling. He said the court recognized that the open records law clearly doesn’t allow elected officials to sue to block disclosure.

“District Attorney Moustakis wasted a great deal of time and taxpayer dollars fighting to keep the public from obtaining records to which it is clearly entitled,” Lueders said in an email to The Associated Press.

Moustakis has amended his original lawsuit to add arguments that the DOJ didn’t properly apply the so-called balancing test — a test of whether releasing records would hurt the public interest — and allowing public employees to sue but not elected officials amounts to a violation of constitutional equal protection guarantees.

The Supreme Court did not address those arguments, allowing Moustakis to continue to pursue them in Lincoln County Circuit Court.