Prediction: The State Supreme Court will grant the elected officials the right to seek judicial review of open records requests to determine whether the public interest is better served in releasing the relevant records than in not releasing them.
This will result in all kinds of mischief, including elected officials' refusal to hand over records until certain key dates in the election cycle -- like election day itself -- are over. It also will essentially exempt State Supreme Court justices from the law, because what judge is in a position to tell a justice to release a record he or she does not want made public?
Justices made clear their leanings during oral arguments yesterday in Albert Moustakis vs. the Wisconsin Department of Justice. Justice Michael Gableman even decried the "unelected bureaucrat" -- maybe he meant to say "public employee" or "records custodian" -- in each public agency who is now tasked with performing such balancing tests. That person, he said, "may or may not be trained in the fine points of the open records law."
Justice Shirley Abrahamson pointed out that it was the Supreme Court itself who set out the guidelines for how the balancing test should be conducted.
"This is a well-established balancing test," she said.
Justice Ann Walsh Bradley said the statute and explanatory legislative notes made clear the legislature intended there be some records not subject do judicial review.
It appeared difficult for some of the justices to understand how the Justice Department officials who conducted the balancing test of Moustakis-related records made their decisions.
The records request from a newspaper were related to complaints about Moustakis the Justice Department investigated and found to be unsubstantiated. The DOJ, in reviewing the records before their scheduled release, were redacted in part; others contained allegations so outlandish they were withheld from public view entirely, said Asst. Atty. Gen. Brian Keenan. Moustakis sued, and the records were never released.
Keenan said Moustakis, an an elected state official, was not entitled to a judicial review of the records before their release, but some justices appeared unconvinced.
"Is it fair since there's such a subjective redaction that there shouldn't be review by somebody else?" Justice David Prosser asked.
Although it is not an issue in the case, Keenan said that Moustakis also did not have a right to augment the records with additional information before they were released. State law gives many employees that right because the additional records may clarify or refute the records originally gathered.
But Keenan said that such augmentation is a right held by an employee of the agency that receives the open records request, not by an employee of any other agency. In other words, had Moustakis been a DOJ employee he would have had the right to augment the record; since he was not, he did not have that right, Keenan said.
"Why in the world would there be that difference?" Chief Justice Patience Roggensack asked. "What purpose does that serve?"
Justice Rebecca Bradley did not ask any questions.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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