Discovery of On-Going Police Files Under the Open Record Law


Author: Attorney John R. Orton


Police and prosecutors have not developed a uniform answer to whether police records in routine traffic matters can be discovered by a defendant through the Open Records Law. Despite court interpretations and amendments to the law, little progress has been made in clearing up this nagging problem. An unscientific survey has revealed that most municipal attorneys simply release these documents because they do not want to become the “test case” in this ambiguous area of the Law.

The methodology which a records custodian must follow in evaluating an Open Records Request is well established. The first step is to determine whether the information sought qualifies as a public “record” as defined by §19.32(2) Wis. Stats. If the information sought qualifies as a public record, there is a general presumption that the record is open to the public. Wis. Newspress v. Sheboygan Falls School Dist., 199 Wis.2d 768, 776 (1996);  Linzmeyer v. Forcey, 254 Wis. 2d 306, 318 (2002).

However, this general presumption of openness can be rebutted by either statutory exceptions or common law exceptions to the Open Records Law.  See, §19.35(1) Wis. Stats. and Linzmeyer, supra. Therefore, a custodian’s second step is to determine whether any statutory exceptions or common law exceptions apply which would require the custodian to withhold the release of part or all of the records.

For the third step, a custodian must apply a “balancing test,” on a case-by-case basis, to determine whether permitting inspection of part or all of the records would result in harm to a public interest which outweighs the public interest in opening the records for inspection. If the public interest will receive more harm than benefit from the release of a record, then the request may be denied in spite of the general policy of openness.  Linzmeyer, at 818.  Hempel v. City of Baraboo, 284 Wis.2d 162, 179-80, 699 N.W.2d 551 (2005).

Finally, a custodian must provide a written response to the Request, specifically stating the reasons for any denial of records.

Assuming that the subject of a request qualifies as a “record” as defined by §19.32(2) Wis. Stats., the following are some guidelines for analysis of a request for police records regarding a pending traffic ticket:

      1. Statutory Exceptions:   There are at least three statutory exceptions which are arguably relevant to a Request for police records regarding a traffic ticket:

             a.  First, §19.35(1)(am)1.Wis. Stats. (commonly known as the “investigatory file exception”) states that the right to inspect or copy a record does not apply to:

              (1.)  Any record containing personally identifiable information that is collected or maintained in connection with a complaint, investigation or other circumstances that may lead to an enforcement action, administrative proceeding, arbitration proceeding or court proceeding, or any such record that is collected or maintained in connection with such an action or proceeding.

The traffic records which are typically requested usually contain “personally identifiable information,” all of which was collected and maintained in connection with an action or proceeding against the defendant.

            b.  Second, §345.421 Wis. Stats. prohibits discovery in traffic cases (except for limited items within a limited time period).  This Statute is incorporated by reference into the Open Records Law by the language of §§19.35(1) and 19.36(1) Wis. Stats., which state that a requestor has a right to inspect any record “except as otherwise provided by law.”  Section 345.421 Wis. Stats. is a specific exception provided by law, specifically applicable to traffic cases.

           c.   Third, the “attorney-client privilege” of §905.03 Wis. Stats. may also apply.  Good police work involves the collection and preservation of evidence which a prosecuting attorney needs to prove the case in Court.  Over the years, police practices have evolved so that well-trained, experienced officers know what information should be collected to assist the prosecuting attorney, without consulting with the attorney on the specifics of each and every case prior to court proceedings.  The “attorney-client privilege” may protect documentary evidence generated by the police for the purpose of assisting the attorney in the prosecution of a ticket.  Of course, an Open Records Request may not be used to invade or nullify the “attorney-client privilege.”

      2. Common Law Exceptions:   There appear to be at least two common law exceptions to the Open Records Law:

            a.  First, the common law generally prohibits the inspection of evidence relied upon by the prosecution.  State ex rel. Richards v. Foust, 165 Wis.2d 429, 434 (1991);  State ex rel. Young v. Shaw, 165 Wis.2d 276, 290 (1991).  Although this common law exception is generally abrogated by the discovery rules in criminal cases (see §971.23 Wis. Stats.), it is not abrogated by the discovery rules in traffic cases (cf §345.421 Wis. Stats.).  Hence, it remains a valid common law rule which prohibits the inspection of evidence in civil traffic cases.

          b. Second, there is a common law rule against the disclosure of prosecutorial files.  As noted above, good police work focuses upon the collection and preservation of evidence which a prosecuting attorney will need in Court to prove a case.  It is generally the rule that evidence, collected by the police in the course of an investigation and subsequently conveyed to the files of a prosecuting attorney, is not open to inspection.  State ex rel. Richards v. Foust, 165 Wis.2d at 436-37.  It must be underscored that the “prosecutorial file” exception cannot be used to shield documents, otherwise subject to the Open Records Law, simply by placing documents into the prosecutor’s file.  It is the nature of the documents and not their location which determines their status.  Nichols v. Bennett, 199 Wis.2d 268 (1996).  However, in most cases, the nature of the documents relates to the investigation and prosecution of the traffic ticket, and so the documents are properly protected by this exception regardless of their location.

        3. Balancing Test:  The application of the “balancing test” reveals that the release of these records usually results in more harm than benefit to the public interest.  It must first be noted that the requestor is the defendant in a pending traffic case, who is seeking to use the Open Records Law to bypass and frustrate specific Statutes and well-established common law rules, to obtain evidence regarding a case.  This is not a situation in which a member of the general public wishes to obtain public records for a greater public purpose.  To the contrary, the Open Records Law is being used for a very private purpose, that is, the defense of a particular traffic ticket.

          There are many public policies which arguably outweigh the public interest in opening such records to inspection.  Here are a few:

            a.  Section 345.421 Wis. Stats. is the codification of the legislature’s determination that discovery in civil traffic cases is against public policy.  The Statute is designed to relieve prosecutors from the burden of engaging in discovery in minor cases.

           b. The municipality has an interest in protecting its police department from harassment and from additional expense caused by responding to Requests from defendants and/or law firms demanding disclosure as an alternative to the discovery statutes already in place for cases involving ongoing traffic cases.  Law Offices of Pangman v. Zellmer, 163 Wis.2d 1070, 1087 (1991). Municipalities will incur a substantial expense in responding to requests, which, like most defense motions in criminal cases, will become routine.  Lawyers engaged in traffic cases will automatically submit an Open Records Request in every case as a matter of standard practice, thereby creating an additional unreasonable burden upon the limited resources of the municipality.

           c. The municipality and the public has an interest in facilitating efficient, professional, and thorough police work as well as effective prosecution of traffic cases.  The release of these types of documents, during pending traffic cases, will hinder this important work, and thus, the public interest.  For example, to avoid the release of information to defendants, the police may avoid generating documents during their investigations for fear that these documents will be released.  Similarly, prosecutors will become more involved in directing police investigations so that the protections of the attorney-client privilege and the attorney-work product doctrine are clearly invoked in each and every case.

            In addition to the foregoing arguments, additional arguments may be formulated in response to Requests which seek personnel records of the arresting officer (See generally, the “Personnel Records” exception of §19.36(10) Wis. Stats.)  Moreover, requests for personnel records raise a whole host of additional public policy factors which must be addressed through the “balancing test.”  These factors are beyond the scope of this article.

      4. Response:  Finally, and perhaps most importantly, the municipality’s response to a Request must be reasonably detailed and comprehensive.  In Beckon v. Emery, 26 Wis.2d 510 (1967) and Newspapers, Inc. v. Breier, 89 Wis.2d 417 (1979), the Court held that traffic records were open for public inspection because the custodian failed to provide a detailed response containing valid reasons for nondisclosure. Hence, it is very important for a Records Custodian to provide a detailed response which recites the reasons for nondisclosure.

            In conclusion, it must be noted that there is an exception to the foregoing exceptions.  Section 246.70(4)(f) Wis. Stats., allows any person to examine or copy “uniform traffic accident reports” and related materials.  Hence, if a traffic citation arises from a traffic accident, then the uniform report and related materials are clearly discoverable under the Open Records Law.  State ex rel Young v. Shaw, 165 Wis.2d 276 (1991). However, for the vast majority of traffic tickets which do not involve an accident, this writer believes that police records for pending tickets are probably not discoverable under the Open Records Law.