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Moustakis v. State, Department of Justice

Supreme Court of Wisconsin

May 20, 2016

Albert D. Moustakis, Plaintiff-Appellant-Petitioner,
v.
State of Wisconsin Department of Justice, Defendant-Respondent, Steven M. Lucareli, Intervenor

         Argued February 4, 2016.

          REVIEW of a decision of the Court of Appeals. (L.C. No. 2014CV41). COURT: Circuit. COUNTY: Lincoln. JUDGE: Jay R. Tlusty.

         For the plaintiff-appellant-petitioner, there were briefs by Benjamin J. Krautkramer and Swid Law Offices, LLC, Mosinee, and oral argument by Scott A. Swid.

         For the defendant-respondent, the cause was argued by Brian Keenan, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.

         SHIRLEY S. ABRAHAMSON, J. PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part, dissenting in part).

          OPINION

          SHIRLEY S. ABRAHAMSON, J.

          [368 Wis.2d 679] [¶1] This is a review of a published decision of the court of appeals, Moustakis v. Wisconsin Department of Justice, 2015 WI App 63, 364 Wis.2d 740, 869 N.W.2d 788, affirming an order of the Circuit Court for Lincoln County, Jay R. Tlusty, Judge.

          [¶2] The circuit court dismissed an action brought by Vilas County District Attorney Albert [368 Wis.2d 680] Moustakis under Wis. Stat. § 19.356(4) (2013-14)[1] seeking to restrain the Wisconsin Department of Justice from releasing records pertaining to Moustakis in response to a public records request by The Lakeland Times, a newspaper located in Minocqua, Wisconsin. The court of appeals affirmed the order of the circuit court.

          [¶3] This review raises a single question that was well-stated by the court of appeals: Is a district attorney an " employee" as that term is used in Wis. Stat. § 19.356(2)(a)1. and defined in § 19.32(1bg) such that the district attorney may maintain an action for notice and pre-release judicial review of records under § 19.356(4)?[2]

          [368 Wis.2d 681] [¶4] To answer this question, we take the same approach as the court of appeals and the parties, namely, we analyze the interconnecting provisions of the public records law, Wis. Stat. § § 19.21-.39, and apply them to the fact situation at hand. The Wisconsin public records law is not always easy to read or decipher. Multiple provisions of the public records law cross-reference each other. Nevertheless, by analyzing the public records law step by step, we can resolve the present case. To enable easier reference to the text of the public records law as we discuss the cross-references, we have attached the text of the relevant statutes and constitutional provisions as Appendix A.

          [¶5] After analyzing the public records law and the parties' arguments, we conclude, as did the court of appeals, that a district attorney holds a state public office and is not an " employee" within the meaning of Wis. Stat. § § 19.32(1bg) and 19.356(2)(a)1. Because the records at issue do not fall within the narrow exception to the general rule that a " record subject" is not entitled to notice or pre-release judicial review of the decision of an authority to provide access to records pertaining to that record subject, Moustakis may not maintain an action under Wis. Stat. § 19.356(4) [368 Wis.2d 682] to restrain the Department of Justice from providing The Lakeland Times access to the requested records.

          [¶6] Accordingly, we affirm the decision of the court of appeals and the circuit court's order dismissing Moustakis's action under the Wisconsin public records law.

          [¶7] We remand the cause to the circuit court for further proceedings consistent with this opinion to consider Moustakis's amended complaint alleging two additional causes of action, the first seeking a writ of mandamus and the second asserting a challenge to the constitutionality of Wis. Stat. § 19.356. The circuit court stayed proceedings on these two causes of action,[3] and these two causes of action are not at issue in this court.[4]

         I

          [¶8] For purposes of this review, the facts and procedural history are not in dispute.

          [¶9] In July 2013, The Lakeland Times sent a public records request to the Department of Justice regarding Moustakis. The request sought records of any " complaints or investigations regarding Vilas County District Attorney Al Moustakis" and records " regarding any investigation of [Moustakis's] conduct or handling of cases while district attorney." The request also sought " information related to complaints and investigations regarding Mr. Moustakis that were completed or ended without any action taken against [368 Wis.2d 683] him[,]" as well as " any communications between Mr. Moustakis and [Department of Justice] since he took office in 1995."

          [¶10] The public records custodian of the Department of Justice referred the request to the Department's Division of Criminal Investigation and Division of Legal Services to prepare a response. The staff collected and reviewed the responsive documents and made numerous redactions. The public records custodian approved the proposed response for release. The response contained records relating to complaints against Moustakis that the Department of Justice ultimately found to be unsubstantiated.

          [¶11] The public records custodian at the Department of Justice left Moustakis a telephone message advising him that the Department would be releasing records responsive to The Lakeland Times' public records request. The Department also mailed a copy of the approved response to Moustakis.

          [¶12] Moustakis received the redacted records from the Department of Justice on or about March 5, 2014, more than seven months after The Lakeland Times made its public records request. The Lakeland Times did not receive the redacted records at the same time that Moustakis received them. The Department asserts that it provided Moustakis with notice and a copy of the response as a professional courtesy and that it was not required to do so by law.[5]

          [368 Wis.2d 684] [¶13] Moustakis notified the Department of Justice (through his counsel) of his intent to seek judicial review of the Department's decision to release the requested records. On March 10, 2014, Moustakis filed this action under Wis. Stat. § 19.356(4) to enjoin the Department from releasing the records at issue.

          [¶14] The Department moved to dismiss the action, arguing, as we explained above, that Moustakis was not an " employee" as that term is defined in Wis. Stat. § 19.32(1bg) and that, as a result, Moustakis may not maintain an action under § 19.356(4) to restrain the Department from providing access to the records relating to him that are responsive to The Lakeland Times' public records request.

          [¶15] The circuit court dismissed Moustakis's action on July 1, 2014, about one year after The Lakeland Times made its public records request to the Department of Justice, concluding that Moustakis was not an employee as defined in Wis. Stat. § 19.32(1bg) and as a result may not maintain an action under § 19.356(4). The court of appeals affirmed the circuit court's order dismissing the action. Moustakis sought review in this court.

         II

          [¶16] The interpretation and application of statutes present questions of law that this court determines independently of the circuit court and court of [368 Wis.2d 685] appeals while benefiting from the analyses of these courts. Journal Times v. Police & Fire Comm'rs Bd., 2015 WI 56, ¶ 42, 362 Wis.2d 577, 866 N.W.2d 563.

          [¶17] To determine the meaning of a statute, we look to the language of the statute. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶ 49, 327 Wis.2d 572, 786 N.W.2d 177. " Each word should be looked at so as not to render any portion of the statute superfluous." Hubbard v. Messer, 2003 WI 145, ¶ 9, 267 Wis.2d 92, 673 N.W.2d 676 (note with citations omitted).

          [¶18] " [A]scertaining plain meaning requires us to do more than focus on a single, isolated sentence or portion of a sentence." Teschendorf v. State Farm Ins. Cos., 2006 WI 89, ¶ 12, 293 Wis.2d 123, 717 N.W.2d 258 (citation and quotation marks omitted). Instead, " [w]e consider the meaning of words in the context in which they appear." Force ex rel. Welcenbach v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶ 30, 356 Wis.2d 582, 850 N.W.2d 866. " We favor an interpretation that fulfills the statute's purpose." State v. Hanson, 2012 WI 4, ¶ 17, 338 Wis.2d 243, 808 N.W.2d 390 (citation omitted).

         III

          [¶19] We adopt the organization, statutory analysis, reasoning, and, at times, language of the decision of the court of appeals in our interpretation of the public records law and application of the law to the parties' arguments. The court of appeals organized its analysis of the statutes as follows, and so do we:

A. The public records law embodies the fundamental concept in Wisconsin of transparent [368 Wis.2d 686] government. This concept guides our interpretation of the provisions of the public record law.[6]
B. The general rule is that no " authority" is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject. Wis. Stat. § 19.356(1). Furthermore, " no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record." § 19.356(1). The public records law contains an exception to this general rule for three narrow categories of records. § 19.356(2)(a)1.-3. If the record at issue falls in one of these three narrow categories of records, a " record subject" may maintain an action under § 19.356(4) seeking a court order to restrain the authority from providing access to the requested record.[7]
C. The only one of these three exceptions that Moustakis claims pertains to him is the one set forth in Wis. Stat. § 19.356(2)(a)1. This provision applies to certain records pertaining to an " employee." The application of § 19.356(2)(a)1. to Moustakis's records turns on whether Moustakis is an " employee," as defined in § 19.32(1bg).
1. Moustakis is not an employee within the first part of the definition of " employee" in Wis. Stat. § 19.32(1bg).[8] [368 Wis.2d 687] He holds the elective office of Vilas County District Attorney.
2. Moustakis is not an employee within the second part of the definition of " employee" in Wis. Stat. § 19.32(1bg). Moustakis, as Vilas County District Attorney, is not " employed by an employer other than an authority." [9]
D. Interpreting the definition of " employee" in the public records law as excluding a state public office does not render the term " employee" used in Wis. Stat. § 19.356(9)(a) mere surplusage.[10]

          [¶20] Thus, because the records at issue do not fall within the narrow category described in Wis. Stat. § 19.356(2)(a)1., Moustakis may not maintain an action under § 19.356(4) seeking a court order restraining the Department of Justice from providing access to the requested record.[11]

         A

          [¶21] We begin with the following legislative declaration: " Except as otherwise provided by law, any requester has a right to inspect any record." Wis. Stat. § 19.35(1)(a).

          [¶22] The legislature has explicitly stated the public policy as follows: " [I]t is . . . the public policy of this state that all persons are entitled to the greatest [368 Wis.2d 688] possible information regarding the affairs of government and the official acts of those officers and employees who represent them." Wis. Stat. § 19.31.

          [¶23] In light of this policy, the legislature has stated that the public records law " shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." Wis. Stat. § 19.31.[12]

         B

          [¶24] Under the public records law, the general rule is that a record subject is not entitled to notice prior to an " authority" granting a requester access to a record containing information pertaining to the " record [368 Wis.2d 689] subject." Wis. Stat. § 19.356(1).[13] Furthermore, subject to three narrow exceptions, " no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record." § 19.356(1).

          [¶25] The legislature excluded three narrow categories of records from these general rules that no authority is required to notify a record subject prior to providing to a requester access to a record containing information pertaining to that record subject and that no person is entitled to judicial review of the decision of an authority to provide a requester with access to a record. See Wis. Stat. § 19.356(2)(a)1.-3.

          [¶26] An " authority" [14] intending to release records falling within one of these three narrow categories of records must provide notice to the record subject before releasing the records and the record subject has the opportunity to seek pre-release judicial review. Wis. Stat. § § 19.356(2)(a), 19.356(4). [368 Wis.2d 690] The record subject may commence an action (within the time specified in the public records law) seeking a court order " to restrain the authority from providing access to the requested record." Wis. Stat. § 19.356(3), (4).

          [¶27] The three exceptions granting rights to a record subject are set forth in Wis. Stat. § 19.356(2)(a)1., 2., and 3. These three provisions were intended to limit this court's holdings in Woznicki v. Erickson, 202 Wis.2d 178, 549 N.W.2d 699 (1996), and Milwaukee Teachers' Education Ass'n v. Milwaukee Board of School Directors, 227 Wis.2d 779, 596 N.W.2d 403 (1999).[15] In Woznicki and Milwaukee Teachers, this court held that public employees were entitled to notice and to seek pre-release judicial review of the response to records requests pertaining to them.[16] By enacting § 19.356(2)(a)1., 2., and 3., the legislature sought to limit the rights afforded by these cases " only to a defined set of records pertaining to employees residing in Wisconsin." 2003 Wis. Act. 47, Joint Legis. Council Prefatory Note.[17]

          [368 Wis.2d 691] [¶28] Thus, the exceptions in Wis. Stat. § 19.356(2)(a)1., 2., and 3. are the only instances in which a record subject has a statutory right to receive notice and seek pre-release judicial review of a response to a public records request.

         C

          [¶29] Moustakis asserts that the records at issue fall into one of these three narrow exceptions, namely, Wis. Stat. § 19.356(2)(a)1., that he is thus entitled to notice and pre-release judicial review of the records pertaining to him, and that he may commence an action seeking a court order to restrain the Department of Justice from providing access to the requested records. This exception, § 19.356(2)(a)1., applies to a record " containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee . . . ." Wis. Stat. § 19.356(2)(a)1. (emphasis added).

          [¶30] The application of Wis. Stat. § 19.356(2)(a)1. to Moustakis's records turns on whether Moustakis is an " employee" for purposes of that provision.

          [¶31] " Employee" is defined in Wis. Stat. § 19.32(1bg) as " any individual who is employed by an authority, other than an individual holding local public office or a state public office, or any individual who is employed by an employer other than an authority" (emphasis added).

          [¶32] Thus, Wis. Stat. § 19.32(1bg) creates two categories of employees: Individuals who are employed by an " authority" --a category narrowed by the [368 Wis.2d 692] limiting clause excluding persons holding local public office or a state public office as employees--and those who are employed by an employer other than an " authority."

          [¶33] As we previously stated, " authority" is defined in the public records law. See Wis. Stat. § 19.32(1). The definition of " authority" includes a vast number of governmental entities " having custody of a record," including, as relevant here, " a state or local office."

         1

          [¶34] Moustakis concedes, as he must, that he holds a state office and that he is not an " employee" of an authority under the first part of the definition of " employee" in Wis. Stat. § 19.32(1bg) that explicitly excludes from the definition of " employee" an individual holding a " state public office."

          [¶35] Analyzing the definition of " state public office" in the public records law, we agree with Moustakis that he is not an " employee" under the first part of the definition of " employee" in Wis. Stat. § 19.32(1bg). An individual is excluded as an employee under § 19.32(1bg) if he or she holds a " state public office." A " state public office" is defined in § 19.32(4). This provision reveals that a " state public office" has the meaning given in § 19.42(13) (with exceptions not relevant in the instant case). Reading § 19.42(13), we learn that " state public office" includes " all positions identified under s. 20.923(2) . . . ." Section 20.923(2) contains a list of " constitutional officers and other elected state officials." Within that list, section 20.923(2)(j) refers specifically to " a district attorney."

          [¶36] Moustakis, the Vilas County District Attorney, is thus the holder of a " state public office" and does [368 Wis.2d 693] not qualify as an " employee" under the first part of the definition of " employee" set forth in § 19.32(1bg).

         2

          [¶37] Even though Moustakis holds a state public office, he argues that he nevertheless qualifies as an " employee" under the second part of the definition of " employee" in Wis. Stat. § 19.32(1bg). According to Moustakis, he is " employed by an employer other than an authority," namely, he is employed by the State of Wisconsin.

          [¶38] In Moustakis's view, the definition of " employee" in Wis. Stat. § 19.32(1bg) is disjunctive and the two parts are not connected. Thus, even if Moustakis is not an " employee" under the first part of the definition of employee in Wis. Stat. § 19.32(1bg), he argues that he is an " employee" under the second part of that definition.

          [¶39] Specifically, Moustakis asserts that he is not an " employee" of the Vilas County District Attorney's office, which is identified as an " authority" under Wis. Stat. § 19.32(1). Moustakis contends he works in the office of the district attorney but that the indicia of employment demonstrate that he does not work for that office. He asserts that he works for the State of Wisconsin. The State of Wisconsin is not specifically mentioned in the definition of " authority." See Wis. Stat. § 19.32(1).

          [¶40] Moustakis reasons that because he is employed by the State of Wisconsin, which is not specifically identified as an " authority" under Wis. Stat. § 19.32(1), he is an " employee" under the second part of [368 Wis.2d 694] the definition of employee in § 19.32(1bg). He claims he is thus employed by an employer other than an " authority."

          [¶41] Moustakis's interpretation of the second part of the definition of " employee" is ...


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