Wisconsin Legislature: oag7-09

¶ 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.

Hathaway v. Green Bay School Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984) (emphasis added). See also Local 2489, AFSCME, AFL-CIO v. Rock County, 2004 WI App 210, ¶ 15, 277 Wis. 2d 208, 689 N.W.2d 644 (interpreting undefined term “investigation” narrowly to refer only to investigations conducted by a public authority).

¶ 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,[5] 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.

The First Amendment.

¶ 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.[6]

¶ 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.[7]

¶ 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

JBVH:RPT:KSJ:LWB:rk

For the authorizations contained in Wis Stat. § 5.05(5s), see Section II.C., infra.

Act 1 does not define “prosecutor” or “investigator.” Cf. Wis. Stat. § 5.02. The common and accepted meaning of statutory terms may be ascertained by reference to dictionary definitions. Kalal, 271 Wis. 2d 633, ¶¶ 53‑54. An “investigator” is, most essentially, “one that investigates.” Webster’s Third New International Dictionary 1189 (1986) (“Webster’s”). The commonly accepted meaning of “investigator” does not limit the term to members or employees of any particular agency or entity, such as the GAB. Under the broadest interpretation of the phrase “investigator,” even a private entity who, prior to filing a complaint with the GAB, investigates the facts underlying the complaint would be an “investigator.” The dictionary definition of a “prosecutor” is a “prosecuting attorney” or “a person who institutes an official prosecution before a court.” Webster’s at 1821.

While not limiting the prosecutorial authority of district attorneys, Act 1 amended Wis. Stat. § 978.05(1) to change which district attorney would have jurisdiction to prosecute an enumerated offense.

Unlike the GAB, law enforcement is not under a mandatory duty to investigate any set of facts giving rise to “reasonable suspicion” that a violation of the law has occurred. Nor must “reasonable suspicion” exist for law enforcement to commence an investigation, so long as the methods of investigation do not violate statutory or constitutional rights. With respect to prosecution, prosecutors may not file charges unless they have probable cause to believe a violation of the law has occurred. SCR 20:3.8(a). But probable cause does not automatically trigger a district attorney’s filing of a complaint. It is well-recognized that a district attorney is vested with prosecutorial discretion and is under no requirement to prosecute “all cases where there appears to be a violation of the law.” See Kalal, 271 Wis. 2d 633, ¶ 30.

Here, there is no legislative history that illuminates the fundamental question this opinion examines or sheds light on whether or not the legislature intended any of the results that would naturally flow from an interpretation that included district attorneys and law enforcement as “prosecutor[s]” and “investigator[s]” as those terms are used in Wis. Stat. § 12.13(5)(a).

Although the remaining discussion refers to the First Amendment, it applies equally to Wisconsin’s correlating protections which have been held to follow First Amendment guarantees. County of Kenosha v. C & S Management, Inc., 223 Wis. 2d 373, 388, 588 N.W.2d 236 (1999) (“Wisconsin courts consistently have held that Article I, § 3 of the Wisconsin Constitution guarantees the same freedom of speech rights as the First Amendment of the United States Constitution.”).

Wisconsin Stat. § 12.60(1)(bm) makes the unauthorized release of records or “information” a misdemeanor. Nothing in this opinion should be construed as concluding that the disclosure of government records raises identical First Amendment concerns as the disclosure of information through speech.