Training videos featuring Attorney General Brad Schimel discussing two cases involving sexual predators do not have to be made public.
In a 5-2 decision Wednesday, the state Supreme Court overturned lower court rulings that said they should be released. The court’s conservative majority said the videos are the equivalent of a prosecutor’s case file, which are exempt from the state’s open records law.
The videos were shot in 2009 and 2013, while Schimel was serving as the Waukesha County District Attorney. The state Democratic Party sued for their release shortly before Schimel was elected attorney general in 2014, arguing the videos may show Schimel making inappropriate remarks – a claim he has denied. Previous courts have also said they show no misconduct.
The state argued the videos should not be released because they could help criminals find ways to avoid arrest and they would put details of a high-profile case back in the public eye, potentially harming the victims.
Writing for the majority, Justice Rebecca Bradley agreed, calling the situation one of those “exceptional cases” where it’s right to deny public access to government records. “The 2013 recording is an accounting of a single case and the functional equivalent of a prosecutor’s case file,” she wrote. “It contains information, which, if released, would harm the public interest by re-traumatizing the victims and violating their privacy rights.”
In her dissent, Justice Shirley Abrahamson wrote that the majority opinion “eclipses” the state’s Sunshine Law and “dims the lights on persons seeking information about Wisconsin government operations.”
Abrahamson also noted that the state provided no evidence that the videos discuss any investigative methods or practices used by prosecutors that are not already widely available. “The majority opinion casts a long shadow on several principles of Wisconsin’s public records law,” she said.
Democratic Party of Wisconsin spokesman Brandon Weathersby said the decision is a continued sign the court favors Republicans. “We’re disappointed to see that the Wisconsin Supreme Court, bought and paid for by right-wing dark money groups, has once again stepped in to prevent Republican leaders from being held accountable,” he said.
In a statement, Schimel praised the ruling. “As a career prosecutor and advocate for open government, I have experienced firsthand the tension between protecting sensitive information and promoting transparency. Even though I would have benefited politically from the release of these law enforcement training tapes, I believe the Court made the right decision in this case, to protect victims and guard the confidentiality of prosecutorial techniques.”
Open records advocate critical of ruling
While he admitted the narrow focus of the case is unlikely to have a major impact on the state’s open records law, Wisconsin Freedom of Information Council President Bill Leuders was critical of some of the reasons cited by the majority. “The arguments that the court accepted were largely speculative, and not supported with any clear and convincing evidence,” he said.
Leuders also questioned the majority opinion mentioning the political motivations of Democrats for seeking the videos, which he said is not supposed to be a factor public records custodians consider when evaluating open records requests. “Partisans of both parties, both Democrats and Republicans, regularly use our open records law to dig up dirt on their political opponents…it happens all the time.”