(e) The following records of the board are open to public inspection and copying under s. 19.35(1): 1. Any record of the action of the board authorizing the filing of a civil complaint under sub. (2m)(c)6.
2. Any record of the action of the board referring a matter to a district attorney or other prosecutor for investigation or prosecution.
3. Any record containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred.
4. Any record containing a finding, following an investigation, that no probable cause exists to believe that a violation of the law has occurred.
¶ 22.
By its plain meaning, Wis. Stat. § 5.05(5s)(e) applies only to records of the GAB and no other person or governmental authority. Subparts 1.-4. relate to GAB actions or GAB determinations, not determinations by others. See Wis. Stat. § 5.05(2m)(c)4., 6., 11. Indeed, Wis. Stat. § 5.05 is entitled “Government accountability board; powers and duties.” In sum, nothing about Wis. Stat. § 5.05(5s) indicates that its provisions were intended to apply to any records authority other than the GAB. ¶ 23.
Therefore, if a district attorney or law enforcement authority possesses records related to investigations and prosecutions of the enumerated offenses, the cross-reference in Wis. Stat. § 12.13(5)(a) to Wis. Stat. § 5.05(5s) provides no guidance whatsoever as to when, and under what circumstances, those records can be accessed. It is hard to understand why Wis. Stat. § 12.13(5)(a) would rely upon a cross-reference to another section of the statutes in order to define the scope of a crucial exception to Wis. Stat. § 12.13(5) if the cross-referenced statute only applied to some of the authorities subject to Wis. Stat. § 12.13(5). More plausibly, Wis. Stat. § 12.13(5)(a) regulates GAB, its staff, its retained prosecutors and investigators, and the employees of those retained prosecutors and investigators.b. The legislature’s purpose of allowing the disclosure of certain information to the public is defeated if one reads “prosecutor” and “investigator” to include district attorneys and law enforcement respectively.
¶ 24.
This structural aspect of the statutes becomes particularly significant when one considers your fourth question: what statements district attorneys or law enforcement officials could make, and what records they could disclose, upon determining that no prosecution of an enumerated offense is warranted.¶ 25.
The intent of Wis. Stat. § 12.13(5)(a) and its cross-reference to Wis. Stat. § 5.05(5s) is clear: certain records demonstrating the government’s final decisions to investigate or prosecute should be accessible to the public. Without such access, of course, it would be impossible for the public and other government officials including the legislature to evaluate whether the enforcement of laws is operating as it should. An interpretation that would include a district attorney or law enforcement official within Wis. Stat. § 12.13(5)(a)’s definition of “prosecutor” and “investigator” would run counter to the clear legislative intent allowing the disclosure of certain records relating to investigations and prosecutions by virtue of creating Wis. Stat. § 5.05(5s).¶ 26.
If we read Wis. Stat. § 12.13(5) to apply to district attorneys, then a district attorney who has investigated a possible violation of the enumerated offenses, but who has concluded that no prosecution is warranted (whether because of a belief that no probable cause exists or any other reason), could not disclose any records containing the district attorney’s reasons for making that decision. He or she would be bound by the prohibition on disclosure set forth in Wis. Stat. § 12.13(5)(a), unlike the GAB (and its special counsel), who could release such documents to the public under the specific exceptions set forth in Wis. Stat. § 5.05(5s)(3)3. and 4. Such an interpretation would run counter to the legislature’s purpose in creating the exception, and is thus an unreasonable interpretation.¶ 27.
When the legislature enacts a statute, ‘“it is presumed to do so with full knowledge of the existing law.’” State DOC v. Schwarz, 2005 WI 34, ¶ 24, 279 Wis. 2d 223, 693 N.W.2d 703 (quoting Peters v. Menard, Inc., 224 Wis. 2d 174, 187, 589 N.W.2d 395 (1999)). As discussed above, when the legislature created the GAB, the legislature knew that district attorneys already possessed prosecutorial authority over the elections, ethics, and lobbying laws, pursuant to Wis. Stat. § 978.05. The legislature also knew that under State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991) and its progeny, district attorneys’ case files are protected from public access unless the prosecutor elects in his or her discretion to provide access. So it seems a highly unreasonable interpretation of Wis. Stat. § 12.13(5)(a) to believe that the legislature intended to curtail district attorneys’ ability to explain their decisions not to charge, while at the very same time specifically giving the GAB the ability to release records explaining their decisions on the same kinds of matters.¶ 28.
The legislature wanted certain of the GAB’s records to be exempt from the public records law—hence Wis. Stat. § 5.05(5s). The fact that the legislature specifically provided for the lawful release of records dealing with no-charge determinations shows how important it regarded public access to those determinations to be. To read the terms “prosecutor” and “investigator” in Wis. Stat. § 12.13(5)(a) to include district attorneys and law enforcement would criminalize conduct that the legislature expressly authorizes with respect to the GAB and curtail the flow of information that the legislature has specifically permitted. While it is sometimes the case that records are treated differently for purposes of Wisconsin’s public records law depending on which authority has custody over them, see Portage Daily Register, 308 Wis. 2d 357, ¶ 18, there is no indication that the legislature intended to create such a disparity here as the statutory context supports reading the terms “prosecutor” and “investigator” in Wis. Stat. § 12.13(5) to relate to prosecutors and investigators of the board and as not applying to district attorneys or law enforcement.¶ 29.
The interplay of Wis. Stat. §§ 12.13(5)(a) and 5.05(5s) causes another, similarly unreasonable result if the terms “prosecutor” and “investigator” in Wis. Stat. § 12.13(5) are read to include district attorneys and law enforcement agencies. Under Wis. Stat. § 5.05(5s)(d), the subject of a GAB-initiated investigation under the enumerated offenses may ask the GAB to make available for inspection and copying records of the investigation that pertain to that person, if those records are otherwise “available by law.” However, since Wis. Stat. § 5.05(5s) pertains only to the GAB and its records, a district attorney presented with the same kind of request by the subject of district attorney-initiated investigation would be prohibited from disclosing records to that person, on threat of criminal penalties, were Wis. Stat. § 12.13(5) to be applied to district attorneys.¶ 30.
Such a stark disparity in treatment seems unreasonable, especially in light of the fact that the legislature is presumed to have known, when it enacted Wis. Stat. § 12.13(5), that district attorneys have discretion, under the public records law, to disclose or withhold their investigative records. See Foust, supra. The legislature would not have removed that discretion completely, replaced it with a criminal sanction, and at the same time authorized the GAB to release the very same types of records, without a clear, explicit statement in the statutory language. Act 1 contains no such clear statement. D. Prohibitions on public access to records are to be narrowly construed.
¶ 31.
Moreover, as an exemption to Wisconsin’s public records law, Wis. Stat. § 12.13(5) should be narrowly construed so as to ensure public access to public records. Stepping back from the specific issues discussed above, the terms “prosecutor” and “investigator” in Wis. Stat. § 12.13(5)(a) should be read to exclude district attorneys and law enforcement because, to the extent there is any uncertainty about the scope of those terms, they should be read to ensure public access to the greatest extent possible. ¶ 32.
Only when the legislature’s intent to curtail access is clear should an exemption be read into a statute. Chvala, 204 Wis. 2d at 88. As the supreme court has explained:Exceptions should be recognized for what they are, instances in derogation of the general legislative intent, and should, therefore, be narrowly construed; and unless the exception is explicit and unequivocal, it will not be held to be an exception. It would be contrary to general well established principles of freedom‑of‑information statutes to hold that, by implication only, any type of record can be held from public inspection.
¶ 33.
For the reasons stated above, I believe the legislature has not given an “explicit and unequivocal” indication in Wis. Stat. § 12.13(5) of its intention to curtail the public’s access to district attorney and law enforcement records relating to investigations and prosecutions into the enumerated offenses, subject to the traditional public records law analysis. While the generic terms “prosecutor” and “investigator” can have a broad connotation when taken out of context, the text and structure of Wis. Stat. § 12.13(5) demonstrate that the legislature used those terms in a more limited sense, to refer exclusively to the prosecutors and investigators who are either employed by, or are retained by, the GAB. E. Additional Concerns.
a. Rule of Lenity.
¶ 34.
It also bears mentioning that Wis. Stat. § 12.13(5) is a penal statute. While I have come to the conclusion that traditional methods of statutory construction indicate that the terms “prosecutor” and “investigator” as used in Wis. Stat. § 12.13(5)(a) do not include a district attorney or law enforcement, I note that even if the statute was capable of equally reasonable constructions, a court would apply the rule of lenity if the statute was to be enforced criminally. That principle of statutory construction holds that where a statute is ambiguous and the legislative history unclear, ambiguous penal statutes are to be construed in a defendant’s favor. See State v. Cole, 2003 WI 59, ¶ 67, 262 Wis. 2d 167, 663 N.W.2d 700.¶ 35.
Finally, although you have not directly raised the issue, I note that criminal enforcement of the statute may implicate the free speech protections embodied in article I, section 3 of the Wisconsin Constitution and the First Amendment to the United States Constitution.¶ 36.
As an employer, government has broad authority to regulate its employees’ disclosure of information that the employee obtained by virtue of the exercise of his or her duties. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (holding that “when public employees make statements pursuant to their official duties . . . the Constitution does not insulate their communications from employer discipline”). At the same time, when the government acts in a manner other than as an employer, such as regulation of speech through tort law and presumably criminal law, decisions of the United States Supreme Court suggest the First Amendment provides additional protections to defendants. Id. at 417 (recognizing case law permits government’s regulation of employee speech “as an employer”) (quoting Pickering v. Board of Ed. of TP. H.S. Dist. 205, Ill., 391 U.S. 563, 568 (1968)) (emphasis added); Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (“[T]he government as employer indeed has far broader powers than does the government as sovereign”) (emphasis added); Connick v. Myers, 461 U.S. 138, 147 (1983) (holding that First Amendment did not protect an assistant district attorney’s disruptive speech in the workplace and upholding government’s discharge of the employee, but recognizing that employees’ speech would receive the same First Amendment protection as all citizens enjoy if it was the subject of a libel action as opposed to a disciplinary action). Put simply, the First Amendment may permit the government to discipline an employee for engaging in speech that the government may not impose criminal sanctions on the employee for making.¶ 37.
As with any statute, Wis. Stat. § 12.60(1)(bm), which criminalizes violations of Wis. Stat. § 12.13(5), is presumed constitutional. State v. Baron, 2009 WI 58, ¶ 10, 318 Wis. 2d 60, 769 N.W.2d 34. The question of whether the government may impose a criminal penalty on a public employee for disclosing truthful information about a government investigation into a violation of laws relating to ethics, elections, or lobbying may depend on the facts and circumstances of a particular case. Thus, without a specific challenge, I cannot conclude that it is unconstitutional. However, a prosecutor contemplating the criminal enforcement of Wis. Stat. § 12.60(1)(bm), against any individual should be mindful of possible First Amendment implications. III. ANSWERS TO YOUR FOUR QUESTIONS.
¶ 38.
Given my opinion that Wis. Stat. § 12.13(5) does not apply to district attorneys and law enforcement, my answers to your four questions can be quite succinct. Your first question is: “Are these prohibitions limited to information regarding matters referred to a prosecutor or law enforcement from the Government Accountability Board.” As explained above, I have concluded that the Wis. Stat. § 12.13(5) disclosure limitations do not apply to records in possession of a district attorney or law enforcement agency to which a matter has been referred by the GAB.¶ 39.
Your second question is: “Is information obtained pursuant to an independent investigation or prosecution by a prosecutor or law enforcement officer subject to this statute?” I assume that you have used the term “prosecutor” in your question as a synonym for district attorney. My answer to your question is no: whether the information is obtained pursuant to an independent investigation or in the course of an investigation that followed upon a referral from GAB, the prohibition in Wis. Stat. § 12.13(5) does not apply to district attorneys and law enforcement.¶ 40.
Your third question asks when and under what circumstances district attorney or law enforcement records regarding investigations into the enumerated offenses are subject to disclosure under the public records law. In my opinion, once in the hands of a district attorney or law enforcement agency, records sent by the GAB to that district attorney or law enforcement agency are not subject to the disclosure limitations of either Wis. Stat. §§ 12.13(5) or 5.05(5s). Disclosure of the records by the district attorney or law enforcement agency would not violate Wis. Stat. § 12.13(5) or 5.05(5s), and would not subject the district attorney or law enforcement agency to the penalty provisions of Wis. Stat. § 12.60.¶ 41.
That is not to say, however, that disclosure of such records by the district attorney or law enforcement agency always would be required by the public records law. It is my opinion that standard public records law analysis would govern disclosure of district attorney or law enforcement records regarding investigations or prosecutions into the enumerated offenses.¶ 42.
Your final question is: “If a district attorney concludes that no prosecution is warranted because there is either no probable cause or the case cannot be proven beyond a reasonable doubt, or declines to issue charges for any other reason, what statements may be made or records disclosed regarding that conclusion by a district attorney or law enforcement official?” I again assume that your question refers to the enumerated offenses identified in Wis. Stat. § 12.13(5).¶ 43.
In my opinion, as discussed above, the Wis. Stat. § 5.05(5s) disclosure limitations apply to GAB members, GAB employees, GAB-retained investigators, GAB-retained prosecutors, and necessary assistants of those persons—not to district attorneys and law enforcement agencies. Consequently, it is my opinion that a district attorney or law enforcement official may make the same types of statements or disclose the same types of records regarding the district attorney’s conclusion that no prosecution of an enumerated offense is warranted because there is no probable cause or the case cannot be proven beyond a reasonable doubt, or that the district attorney declines to charge an enumerated offense for any other reason, as the district attorney or law enforcement official may make about any other crime or alleged crime.¶ 44.
The nature of such statements and the disclosure of such records generally is entrusted to the sound judgment of the district attorney or law enforcement official involved, guided when applicable by the public records law. Depending on the circumstances of a particular investigation or prosecution, other disclosure limitations may apply—such as the Wis. Stat. § 968.26 limitations on disclosure of information related to John Doe proceedings or the Wis. Stat. § 146.82 limitations on access to patient health care records. If there remains the possibility of future charges against the same or other persons, the district attorney should be mindful of the SCR 20:3.6 provisions governing trial publicity as well as the legal complications that such statements or disclosures could produce in subsequent proceedings. Conferring with cooperating law enforcement officials about the propriety and potential consequences of any statements or disclosures therefore would be prudent if some future prosecution might be pursued. Sincerely,
J.B. Van Hollen
Attorney General
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