Court says DOJ doesn’t have to release videos (UPDATE)

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The Wisconsin Supreme Court says Attorney General Brad Schimel is under no obligation to release videos he had shown in sessions used to train law-enforcement officials.

The case stems from an open-records request that the Democratic Party of Wisconsin submitted in September 2014 to the state Department of Justice seeking any training materials produced by Schimel. Schimel was then Waukesha County District Attorney and a candidate running for the attorney general’s position.

The state Department of Justice identified various video recordings that had been made of presentations given at training conferences for prosecutors but refused to release them. In doing so, it cited concerns about revealing litigation strategies and infringing on victims’ privacy. One of the videos, from 2009, involved sexual-predator cases and another, from 2013, involved interactions with the victims of certain crimes.

The Democratic Party of Wisconsin decided to take the dispute to court, petitioning a judge for a writ of mandamus that would force the DOJ to release the videos. Dane County Circuit Court Judge Richard Niess in 2014 ordered the videos released, and an appeals court affirmed the decision last year but stayed its order pending an appeal.

State public-records law generally presumes all public records are open to inspection. An agency asked to produce records must apply a balancing test that weighs whether releasing the records would be likely to cause so much harm that it would outweigh the public’s interest in being able to conduct a review.

Both the court of appeals and the trial court had found that the public interests the DOJ cited when arguing in favor of keeping the videos unreleased were not exceptional enough to overcome the presumption that all public records should be released. The state Supreme Court was of a different mind on Wednesday, though.

In a 5-2 decision attributed to Justice Rebecca Bradley, the justices overturned the lower courts. The majority on the high court accepted the DOJ’s argument that the public interest of catching criminals and protecting victims outweighs the principle that public records should generally be available for review.

The DOJ also argued that the videos in question in this case were shielded by a common-law exemption to the public-records law. That exemption was laid out in the case of State ex rel Richards v. Foust, in which the high court found that prosecutors’ files were exempt.

The justices agreed Wednesday with the DOJ’s arguments, calling Niess’ reasoning for allowing the release of the 2009 video “flawed and erroneous” and contending that releasing the video would “serve as a textbook enlightening Wisconsin criminals on how to avoid detection, elude capture, and escape conviction.”

The majority also specifically noted that the Democratic Party’s writ included language that “suggests a partisan purpose” and that the video from 2009, in particular, did not reveal misconduct. Those two findings, the justices argued, did not tip the balance in favor of public disclosure.

As for the 2013 video, the majority found that it contained the same sort of “discretionary content” that might appear in a prosecutor’s file and that it should thus fall under the common-law exemption established in Foust.

The court also deemed Niess’ reasoning for allowing the video’s release “inadequate and erroneous.” The justices in the majority decided that releasing the videos would “reignite the public and media outrage associated with the crimes at issue” and “undoubtedly re- traumatize and harm” the victims mentioned in the video.

Disagreement came from the two justices who are generally considered to form the court’s left-leaning minority. Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley, wrote a dissenting opinion accusing the majority of allowing its own judgment to take the place of what properly belongs to the public.

“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,” Abrahamson wrote Wednesday.

She also wrote that the majority decision “dims the lights on persons seeking information about Wisconsin government operations and——in the instant case——shuts the lights off.”

Abrahamson wrote that, could she have her way, she would remand the case to the circuit court and ask it to decide if certain parts of the videos should be released.