The League's League-EL
October 29, 2021
Strong Public Interest in Police Misconduct
Favors Disclosure of Older Internal Affairs Investigation Record

In a recent decision the Wisconsin Court of Appeals concluded that the strong public interest in obtaining information related to police misconduct and the extent to which that misconduct is investigated outweighed the asserted public interests in keeping an older internal affairs investigation record confidential. The court of appeals reversed a circuit court order restraining the Milwaukee County Sheriff’s Office (MCSO) from releasing a more-than-decade-old internal affairs record in connection with a reporter’s request for a deputy sheriff’s personnel and disciplinary records after the on-duty deputy drove his squad car through a red light, hitting and killing a person. Milwaukee Deputy Sheriffs’ Association and Joel Streicher v. County of Milwaukee County Clerk, 2020 AP2028-AC (publication recommended). 

The MCSO had determined to release the records in question concluding, after conducting the balancing test, that the public interest in disclosure of these records outweighed the public interest in keeping the records confidential. In accordance with the public records law, MSCO notified the deputy that he was the subject of a public records request and that the office intended to release the requested disciplinary records which included two “sustained” internal affairs files. MSCO informed the deputy that his home address, home e-mail address, home telephone number, social security number and other information had been redacted pursuant to Wis. Stat. § 19.36. The deputy notified MCSO that he planned to seek a court order to stop release of the requested records. The deputy, along with the Milwaukee Deputy Sheriffs’ Association, filed the action a week later. Shortly after the action was filed, the estate of the person hit and killed by the deputy (Estate) filed a public records request for records related to the decedent’s death as well as the deputy’s personnel and disciplinary records. The court subsequently granted the Estate permission to intervene in the lawsuit.

The requested records were not protected from disclosure by statute or common law. After conducting the balancing test, the circuit court determined one of the files could be released but denied release of the other, determining that the public interest in nondisclosure outweighed public interest in disclosure. The court said the record in question, which related to an improper search of a residence in connection with a drug investigation, revealed the prosecutor’s planning and although already redacted would need to be more heavily redacted to protect confidential informants and witnesses, was “quite dated” because it involved an incident that was 13 years old, and the deputy in question had played only a minor role in the incident that was the subject of the record.

The Estate appealed the circuit court’s denial of access to the one file arguing that the public has a strong interest in “knowing when law enforcement officers have a history of violating an individual’s constitutional rights, and how the department handled the investigation of this constitutional violation” and that this was not an “exceptional case” in which the public’s strong interest in disclosure of government records is outweighed by the public interest in keeping the records confidential. After independently balancing the competing public interests, the court of appeals agreed with the Estate. The court agreed with the circuit court that additional redaction of the records was required, but said that was not a basis for denying disclosure. The court said the fact that the deputy’s involvement of the investigation was minor should not be a shield by which the government can prohibit disclosure. The court reversed the circuit court and remanded with instructions for the circuit court to oversee further redaction of the record for release.

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