Criminal Procedure – appeals — PSIs

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Wisconsin Supreme Court

Criminal

Criminal Procedure – appeals — PSIs

In a merit appeal, parties who are entitled “to have and keep a copy” of a PSI need not ask any court’s permission to reference a PSI in an appellate brief; parties may reference information from the PSI that does not reveal confidential information and that is relevant to the appeal.

“We disagree with the court of appeals’ determination that a PSI is confidential because it is not a public record and access to the PSI is limited. A PSI is not a public document. However, that alone does not end the analysis. The information contained in a PSI may be critical to adequately forward or respond to an issue on appeal. Such a document may serve a legitimate purpose and be admissible in litigation, yet not be a public record. While a PSI may not be a public record and may contain confidential and sensitive information, that alone cannot render it unreachable in the context of appellate litigation. In fact, information in the PSI may be seminal to the appeal. The court of appeals determined that the official comments to the statute support its interpretation. We disagree. Although those comments mention specific authorization to access the PSI, the comments were written before Wis. Stat. § 972.15(4m) was in existence. The statute answers the question of access; § 972.15(4m) allows the defendant’s attorney and the State ‘to have and keep a copy’ of the PSI. We find further support for our interpretation——that confidentiality means redacting information rather than limiting access——from analogous case law prioritizing access to documents for parties to the case over confidentiality. The confidentiality of a record does not always trump access to and use of the record.”

Rights Declared.

2012AP544-W State of Wisconsin, ex rel. Office of the State Public Defender v. Court of Appeals, District IV

Ziegler, J.

Attorneys: For Petitioner: Ehmann, Joseph N., Madison; Pakes, Kathleen A., Madison; For Respondent: Potter, Kevin C., Madison; Weber, Gregory M., Madison; Fiedler, Patrick J., Madison; Moeller, Marguerite M., Madison; Rice, David C., Madison; Wilkinson, Tyler, Madison