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ORS Reference number 2400603.

Open Investigation with the FBI

Upon careful consideration and application of the required Wis. Stat. § 19.35(1)(a) balancing test, it is my determination that public policies favoring nondisclosure outweigh any public interest in disclosure. The records that you have requested pertain to an investigation that is currently on-going. In Linzmeyer v. Forcey, 2002 WI 84, ¶ 30, 254 Wis. 2d 306, the Wisconsin Supreme Court opined that when an investigation is on-going the “general presumption of openness will likely be overcome.” Law enforcement records pertaining to ongoing investigations can be particularly sensitive. In this instance, release of the requested records related to the on-going investigation, prior to its completion, could compromise or prejudice additional investigation, could impact the ability of law enforcement to gain cooperation from potential witnesses, and could infringe on the reputation and privacy of victims and witnesses. The records also contain raw investigation data gathered from witnesses of varying degrees of reliability that has not yet been properly verified. See Id. at ¶¶ 30-39; see alsoJournal/Sentinel, Inc. v. Aagerup, 145 Wis. 2d 818 (Ct. App. 1988).

Public policies in favor of keeping strategies for crime detection and prevention were also considered. See Wis. Stat. § 19.85(1)(d). The exceptions to the requirement of a government body to meet in open session under Wis. Stat. § 19.85 are indicative of public policy and may be used as grounds for denying a public records request after application of the balancing test. Wis. Stat. § 19.35(1)(a). Wis. Stat. § 19.85(1)(d) has been interpreted by courts as being representative as a public policy favoring nondisclosure of records related to ongoing criminal investigations. See e.g. Aagerup, 145 Wis.2d at 825.

Also considered was whether disclosure of the records that relate to the ongoing investigation would reveal prosecutorial techniques or strategies. “Public records containing prosecution strategies and police tactics are not specifically excepted from disclosure by Wisconsin statutes, but records custodians can properly consider such content when determining ‘whether the presumption of openness … is overcome by another public policy.’” Democratic Party of Wisconsin v. Wisconsin Dep’t of Justice, 2016 WI 100, ¶ 18, 372 Wis.2d 460.

Additionally, although the Freedom of Information Act (FOIA) 5 USC § 552 does not apply to Wisconsin, Wisconsin Courts have held that FOIA exceptions may be considered when applying the balancing test. See Linzmeyer, 2002 WI 84; Kraemer Bros. v. Dane County, 229 Wis. 2d 86, 103 (Ct. App. 1999), review denied, 231 Wis. 2d 375 (1999). The relevant FOIA exception includes section 7(E) (records which disclose techniques, procedures or guidelines for law enforcement investigations) 5 USC §§ 552(b)(7)(E).

Accordingly, pursuant to the reasons set forth above, your request for records that pertain to the ongoing investigation that you have referenced is being denied. If you wish, you may resubmit your request once the investigation has concluded. If you choose to do so, your request will be re-evaluated at that time.

This determination is subject to review by mandamus action under Wis. Stat. § 19.37(1), or upon an application to the Wisconsin Attorney General or the Milwaukee County Corporation Counsel.

Sergeant Jason Kotarak
Open Records Section
Milwaukee Police Department