¶ 2.
Your first two questions appear to assume that the prohibition against disclosure in Wis. Stat. § 12.13(5) applies to district attorneys and law enforcement agencies. Having assumed that the statute applies to those authorities, you ask whether it makes any difference to the application of the law whether the records and information are generated following a referral from the Government Accountability Board (“GAB”) or as part of an independent investigation or prosecution. However, as will be explained in detail below, I have concluded that Wis. Stat. § 12.13(5) does not apply to district attorneys or law enforcement agencies, but only to the GAB, its employees and agents, and to the investigators and prosecutors retained by the GAB, and the assistants to those persons. 3. When and under what circumstances are district attorney or law enforcement records regarding investigations or prosecutions into the enumerated offenses subject to disclosure under the public records law?
¶ 3.
By “enumerated offenses” I assume you are referring to the offenses identified in Wis. Stat. § 12.13(5)(a), that is, offenses under the elections, ethics, and lobbying laws and “any other law specified in s. 978.05(1) or (2).” In my opinion, Wis. Stat. § 12.13(5) does not apply to district attorneys or law enforcement agencies, and therefore Wis. Stat. § 12.13(5) does not alter standard application of the Wisconsin public records law to district attorney and law enforcement records regarding investigations or prosecutions under the enumerated offenses. 4. 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?
¶ 4.
In my opinion, Wis. Stat. § 12.13(5) does not affect the statements that may be made or the records disclosed by a district attorney or law enforcement official if a district attorney concludes that no prosecution under the enumerated offenses is warranted due to lack of probable cause or insufficient evidence to prove charges beyond a reasonable doubt, or declines to issue charges for any other reason. ANALYSIS
I. RULES OF STATUTORY CONSTRUCTION.
¶ 5.
Your questions require interpretation of Wis. Stat. § 12.13(5) and related statutes. The purpose of statutory interpretation “is to determine what a statute means in order to give the statute its full, proper, and intended effect.” Orion Flight Services v. Basler Flight Service, 2006 WI 51, ¶ 16, 290 Wis. 2d 421, 714 N.W.2d 130. All statutory interpretation begins with the text of the statute; if the meaning of the statute is plain, the inquiry ordinarily stops there. Sands v. Whitnall Sch. Dist., 2008 WI 89, ¶ 15, 312 Wis. 2d 1, 754 N.W.2d 439. Statutory language is generally given its common, ordinary, and accepted meaning. Town of Madison v. County of Dane, 2008 WI 83, ¶ 17, 311 Wis. 2d 402, 752 N.W.2d 260 (citing State ex rel. Kalal v. Circuit Court, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110). “[M]eaning should be given to every word, clause and sentence in the statute, and a construction which would make part of the statute superfluous should be avoided wherever possible.” Hutson v. State Pers. Comm’n, 2003 WI 97, ¶ 49, 263 Wis. 2d 612, 665 N.W.2d 212. Further, “[s]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶ 46.¶ 6.
I am also guided by recognized canons of statutory construction. The statutes in question limit the public’s access to records. As a statutory exemption to the public records law, Wis. Stat. § 12.13(5) must be narrowly construed. Chvala v. Bubolz, 204 Wis. 2d 82, 88, 552 N.W.2d 892 (Ct. App. 1996) (“When it is not clear whether an exception to the open records law exists, we are to construe exceptions to the open records law narrowly.”). The public records law serves a basic tenet of our democratic system by providing opportunity for oversight of government. Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428 (1996). People must be informed about the workings of their government and “openness in government is essential to maintain the strength of our democratic society.” Linzmeyer v. Forcey, 2002 WI 84, ¶ 15, 254 Wis. 2d 306, 646 N.W.2d 811. It is “the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The public records law therefore must be construed “in every instance with a presumption of complete public access, consistent with the conduct of governmental business.” Id. Denial of public access generally is contrary to the public interest. Id. This is one of the strongest legislative policy declarations found anywhere in the Wisconsin Statutes. Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶ 49, 300 Wis. 2d 290, 731 N.W.2d 240.II.
APPLICABILITY OF THE LIMITATIONS SET FORTH IN WIS. STAT. § 12.13(5).¶ 7.
Wisconsin Stat. § 12.13(5) provides:(a)
Except as specifically authorized by law and except as provided in par. (b), no investigator, prosecutor, employee of an investigator or prosecutor, or member or employee of the board may disclose information related to an investigation or prosecution under chs. 5 to 12 [the “elections law”], subch. III of ch. 13 [the “lobby law”], or subch. III of ch. 19 [the “ethics law”] or any other law specified in s. 978.05(1) or (2) [collectively, the “enumerated offenses”] or provide access to any record of the investigator, prosecutor, or the board that is not subject to access under s. 5.05(5s) to any person other than an employee or agent of the prosecutor or investigator or a member, employee, or agent of the board prior to presentation of the information or record in a court of law. (b) This subsection does not apply to any of the following communications made by an investigator, prosecutor, employee of an investigator or prosecutor, or member or employee of the board:
1. Communications made in the normal course of an investigation or prosecution.
2. Communications with a local, state, or federal law enforcement or prosecutorial authority.
3. Communications made to the attorney of an investigator, prosecutor, employee, or member of the board or to a person or the attorney of a person who is investigated or prosecuted by the board.
¶ 8.
A person violating Wis. Stat. § 12.13(5) has committed a crime punishable by a fine of up to $10,000, imprisonment up to 9 months, or both. Wis. Stat. § 12.60.¶ 9.
Combining the content of Wis. Stat. § 12.13(5)(a), (b) into subparts, these prohibitions apply to:
the disclosure of records and information that relates to an investigation of the enumerated offenses, unless disclosure is the release of the record and it is authorized by Wis. Stat. § 5.05(5s) or specifically authorized by any other law;
prior to presentation of the information or record in a court of law;
by an “investigator or prosecutor, or employee of an investigator or prosecutor, or member or employee of the board;”
to any person other thano
an employee or agent of the prosecutor or investigator or a member, employee, or agent of the board;o
a person to whom a communication would be made in the normal course of an investigation or prosecution;o
local, state, or federal law enforcement or prosecutorial authority; o
attorneys of a person under investigation; oro
attorneys of an investigator, prosecutor, employee, or member of the board.¶ 10.
Fundamental to answering the questions you present is to first determine whether Wis. Stat. § 12.13(5) applies at all to district attorneys offices and law enforcement agencies. By its terms, the statute’s prohibitions on disclosure cover only disclosures made by an “investigator, prosecutor, employee of an investigator or prosecutor, or member or employee of the board.”¶ 11.
Defining the last category is simple. As used in Wis. Stat. chs. 5 to 12, “board” is defined to mean the GAB. See Wis. Stat. § 5.02(1s). The GAB is composed of “members,” appointed pursuant to Wis. Stat. § 15.60, who are assisted by nonpartisan “employees.” Cf. Wis. Stat. § 5.05(4). Wisconsin Stat. § 12.13(5) therefore regulates disclosures by GAB members and GAB employees.¶ 12.
While, absent context or limitations, the definitions of “investigator” and “prosecutor” might normally be thought to include law enforcement and district attorneys, respectively, the rules of statutory construction command me to consider the full text and structure of Wis. Stat. § 12.13(5) and closely related statutes. Kalal, 271 Wis. 2d 633, ¶ 46. The statutory context shows that those terms are being used in a more restricted sense in Wis. Stat. § 12.13(5). Thus, I conclude that the phrase “of the board” is intended to modify “investigator[s],” “prosecutor[s],” and “employee of an investigator or prosecutor” such that Wis. Stat. § 12.13(5)(a)’s prohibitions apply only to GAB-employees, GAB-members, investigators, and prosecutors retained by GAB pursuant to Wis. Stat. § 5.05(2m), and employees of those investigators and prosecutors. ¶ 13.
The global context of Wis. Stat. § 12.13(5) can be understood by examining the Act in which it was created. The prohibitions on disclosure of investigative information were enacted as a part of a comprehensive reform to the administration of the state’s elections, ethics, and lobbying laws. 2007 Wisconsin Act 1 (“Act 1”). Act 1 created the GAB and vested it with the administration of these laws. Wis. Stat. § 5.05(1). Under Act 1, GAB “shall investigate violations of laws administered by the board and may prosecute alleged civil violations of those laws” and allows GAB to make referrals to others for criminal enforcement. Wis. Stat. § 5.05(2m). Act 1 details this process. See generally Wis. Stat. § 5.05(2m). If GAB receives a complaint alleging a violation of the laws it administers, then it may commence an investigation and retain a “special investigator.” Wis. Stat. § 5.05(2m)(c)4. GAB can also retain special counsel to exercise its authority to prosecute civil violations. Wis. Stat. § 5.05(2m)6. The enforcement provisions in Wis. Stat. § 5.05(2m) also provided a series of provisions that would enable the GAB to refer cases to a district attorney or the attorney general if certain conditions are met. See Wis. Stat. § 5.05(2m)11., 14.-17.¶ 14.
While establishing a mechanism for referring criminal matters, this comprehensive reform did not affect the ability of law enforcement and district attorneys to pursue investigations and prosecutions regarding the elections, lobbying, and ethics laws independent of the GAB. See Wis. Stat. § 978.05(1) and (2); Wis. Stat. § 5.05(2m)(c)11., 15., 16., 18.; see also OAG‑10‑08 (October 29, 2008) (discussing respective prosecutorial powers of GAB and district attorneys).¶ 15.
In sum, Act 1 created for the first time GAB-investigators and GAB-prosecutors by authorizing GAB to hire investigators to investigate alleged violations of the elections, ethics, and lobbying laws, and to hire counsel to civilly prosecute these violations. The Act left undisturbed the collective investigative and prosecutorial authority of state and local law enforcement and prosecutors.B.
Wisconsin Stat. § 12.13(5) must be interpreted to avoid superfluity.¶ 16.
The first reason I believe Wis. Stat. § 12.13(5) does not apply to district attorneys and law enforcement is that applying it to district attorneys and law enforcement would deprive separate clauses of meaning and render portions of the statute superfluous. See Hutson, 263 Wis. 2d 612, ¶ 49 (‘“[A] construction which would make part of the statute superfluous should be avoided wherever possible.’”).¶ 17.
Wisconsin Stat. § 12.13(5)(a) applies only if the group of persons to whom the prohibitions apply are not communicating with specified groups of other individuals. Wisconsin Stat. § 12.13(5)(b) provides exceptions to Wis. Stat. § 12.13(5)(a)’s application. One of those exceptions is for “communications made by an investigator, prosecutor, employee of an investigator or prosecutor, or member or employee of the [GAB]” with “a local, state, or federal law enforcement or prosecutorial authority.” Wis. Stat. § 12.13(5)(b)2. District attorneys are plainly “state prosecutorial authorities.” A sheriff is plainly “local law enforcement.” So if the statutory term “prosecutor” were intended to include district attorneys and “investigator” to include a sheriff, then the exception in Wis. Stat. § 12.13(5)(b)2. would refer, among other things, to communications between a district attorney and him or herself. By providing for communications with “local, state, or federal law enforcement or prosecutorial authority” in Wis. Stat. § 12.13(5)(b)2., the legislature considered those entities as being distinct from the entities or persons to whom Wis. Stat. § 12.13(5)(a) applies. By identifying state law enforcement and state prosecutorial authorities in this exception, therefore, the legislature has signaled that the provisions of Wis. Stat. § 12.13(5)(a) do not apply to those agencies. Had the legislature wished to signal otherwise, it could have easily provided that the exception to the disclosure rule provided in Wis. Stat. § 12.13(5)(b)2. applied to communications with other prosecutorial authorities or law enforcement agencies or used more specific terms in Wis. Stat. § 12.13(5)(a).¶ 18.
No such superfluity is created, however, if one reads “investigator” and “prosecutor” to mean only those individuals retained by GAB pursuant to Wis. Stat. § 5.05(2m)—in other words, if the phrase “of the board” in Wis. Stat. § 12.13(5)(a) is understood to modify “investigator[s]” and “prosecutor[s].” Each category of the exceptions contained in Wis. Stat. § 12.13(5)(b) to the application of Wis. Stat. § 12.13(5)(a) involve communications with those outside of GAB, GAB’s retained prosecutors and investigators, and the employees of the GAB-retained investigators and employees. “Inside” communications would never need to be subject to an exemption because they are not covered by Wis. Stat. § 12.13(5)(a). See Wis. Stat. § 12.13(5)(a) (prohibitions do not cover communications with “an employee or agent of the prosecutor or investigator or a member, employee, or agent of the board”). If “prosecutor” included a district attorney, however, then Wis. Stat. § 12.13(5)(a)’s prohibition would not apply to his or her conversation with an assistant in the office—because conversations with a prosecutor’s employees are not covered—and would also be subject to an exception from coverage because they would be communications with a “local prosecutorial authority.” There would be no need for the legislature to create an “exception” for a communication that is not covered in the first instance. An interpretation of the terms “prosecutor” and “investigator” that includes only GAB investigators and prosecutors avoids this superfluity and incoherence.¶ 19.
The exceptions in Wis. Stat. § 12.13(5)(b), too, contain superfluity only if Wis. Stat. § 12.13(5)(a) is read to include district attorneys and law enforcement as “prosecutor[s]” and “investigator[s]” respectively. Wisconsin Stat. § 12.13(5)(b)3. exempts from Wis. Stat. § 12.13(5)(a)’s prohibitions communications “made to [an] . . . attorney of a person who is investigated or prosecuted by the board.” It also exempts communications made “in the normal course of an investigation or prosecution.” Wis. Stat. § 12.13(5)(b)1. Because statutes are to be construed to give effect, where possible, to every clause, the legislature must have considered “[a] communication[ ] made in the normal course of an investigation” to not include all communications with “the attorney of a person being investigated or prosecuted.” It is difficult to fathom any communication with the attorney of the person being investigated about the matter being investigated that would not be in furtherance of an investigation unless the legislature considered all such communications to be of a different nature. Thus, if “prosecutor” and “investigator” as used in Wis. Stat. § 12.13(5)(a) referred to a district attorney and a law enforcement officer respectively, then it would appear that district attorneys and law enforcement would be barred from communicating with the attorneys of individuals under investigation. Surely this is not what the legislature intended by using the term “prosecutor” and “investigator” in Wis. Stat. § 12.13(5)(a).a. The statutory cross-reference to Wis. Stat. § 5.05(5s) signals the legislature was concerned with the GAB’s disclosure of records and information. ¶ 20.
The second reason I believe Wis. Stat. § 12.13(5) does not apply to district attorneys and law enforcement agencies is the statute’s reliance upon a cross-reference to Wis. Stat. § 5.05(5s). When one statute specifically refers to another statute, the two statutes should be construed together. Appointment of Interpreter in State v. Le, 184 Wis. 2d 860, 865, 517 N.W.2d 144 (1994). Wisconsin Stat. § 12.13(5) is closely related to Wis. Stat. § 5.05(5s). Wisconsin Stat. § 12.13(5) regulates actions by people; Wis. Stat. § 5.05(5s) regulates access to records. Tellingly, Wis. Stat. § 5.05(5s) relates exclusively to GAB-records. This gives further support to the interpretation that the terms “prosecutor” and “investigator” relate to GAB‑prosecutors and GAB-investigators. It shows that the legislature was addressing GAB‑disclosures in Wis. Stat. § 12.13(5), not disclosures by others. ¶ 21.
Wisconsin Stat. § 12.13(5)(a) contains an exception to the general prohibition on disclosure of records for records that are “subject to access under s. 5.05(5s).” Wisconsin Stat. § 5.05(5s) provides in part that: (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.
