Interrogation footage of murder suspects

ORS reference number 2400473:

The public policy in this state is to give the public the greatest amount of access to public records as possible. Wis. Stat. § 19.32. The general presumption is that public records are open to the public unless there is a clear statutory or common law exception. If there is no clear statutory or common law exception the custodian must “decide whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure.” Hempel v. City of Baraboo, 2005 WI 120, ¶ 28 (citations omitted.) Notwithstanding the presumption of openness, the public’s right to access to public records is not absolute. Journal/Sentinel v. Aagerup, 145 Wis. 2d 818, 822 (Ct. App. 1988).

At this time, the record that you have requested has been forwarded to the Milwaukee County District Attorney’s Office for investigation. The Wisconsin Supreme Court has held that documents relating to a pending investigation may be withheld from inspection. Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 438 (1979). Relying upon Breier, the Wisconsin Attorney General has stated that such “statements by the court reveal sensitivity to the reputational interests of persons under investigation and indicate it may very well be proper to keep investigation files confidential until the investigation is substantially completed.” 73 Wis. Op. Atty. Gen. 38, 43 (February 17, 1984). Furthermore, the Wisconsin Supreme Court has also held that when “the release of a police record would interfere with an on-going prosecution or investigation, the general presumption of openness will likely be overcome.” Linzmeyer v. Forcey, 2002 WI 84, ¶ 30, 254 Wis. 2d 306.

In, 2008 Wisconsin Court of Appeals held that record custodians, except for a prosecutor, may not rely on the common law exception for public access to prosecution files when denying a public records request. Portgage Daily Register v. Columbia County Sheriffs Dep’t. 2008 WI App. 30. The court of appeals held that the records custodian must include policy reasons for nondisclosure of records pertaining to an ongoing criminal investigation. However, as the attorney general made clear in an informal opinion, the public’s interest in not undermining a criminal prosecution is one of the public-policy interests that may outweigh the presumption of disclosure for police records that have been forwarded to the district attorney. Informal Correspondence from Wis. Att’y. Gen. to Mr. Dean Collins, City of Brookfield Assistant Chief of Police (Nov. 13, 2007).

Regarding your request, because of the serious public interest in ensuring a thorough, unimpeded, and unbiased criminal investigation of this matter, and after carefully conducting the required balancing test, it is the record custodian’s determination that the balance tips in favor of nondisclosure. MPD believes that the public interest in thoroughly investigating this matter outweighs the public interest in disclosure of the records at this time.

Therefore your request is denied because it is the subject of a pending investigation or an ongoing prosecution, which would be hindered by the release of this police record. After the case is resolved, you may resubmit your request. If you do decide to resubmit your request, please reference CASE NUMBER 232980132.

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