STATE OF WISCONSIN CIRCUIT COURT ONEIDA COUNTY LAKELAND PRINTING CO., INC., THE LAKELAND TIMES, and JONATRAN ANDERSON, Plaintiffs, V. Case No: 15?cv?53 ONEIDA COUNTY OFFICE, GRADY M. HARTMAN, DANIEL L. HESS, ONEIDA COUNTY LABOR RELATIONS EMPLOYEE SERVICES DEPARTMENT, And LISA CHARBARNEAU, Defendants, ORAL RULING BEFORE THE HONORABLE NEAL A. NIELSEN, JANUARY 28, 2016 APPEARANCES: MS. APRIL BARKER Attorney for Lakeland Printing MR. TIMOTHY BARBER Attorney for Oneida County Sheriff?s Department, et a1. Reported by: Michelle M, Livingston 5652 (715} 479?3641 INDEX WITNESSES: NONE EXHIBITS: NONE :54: 10: 10: 10: 10: 10: 10: 10: 10: it}: l0: 10: 10: 10: 10: if}: 10: 10: 10: 10: 10: COIL: :54: :54: 00: 00: 00: 00: 00: 00: DO: 00: ?00Rhinelander, Wisconsin January 28, 2016 THE COURT: Then good morning everyone. MS. BARKER: Morning, your Honor. THE COURT: This is the matter of Lakeland Printing Company Inc., doing business as the Lakeland Times, and Jonathan Anderson, Plaintiffs, versus the Oneida County Sheriff?s Office, Grady Hartman, Daniel Hess, the Oneida County Labor Relations Employee Services Department, and Lisa Charbarneau, Defendants. The case number is Oneida County The appearances this morning are Attorney April Barker on behalf of the Plaintiffs. And Attorney Timothy Barber on behalf of the Defendants. We're before the Court today for hearing on cross motions for summary judgment in this matter. The Court has received extensive briefing from the parties. We have held an interim hearing relative to procedure and how the Court was going to go forward with reapect to in camera inspection of certain documents. And the Court has, of course, reviewed all of the briefs that have been provided by the parties. I do compliment both counsel for a very thorough job 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: l0: 10: 10: 10: 10: 10: 10: 10: 10: :02: :01 Ol: 01: Ol: 01: 01: 01: 01: 01: 01: 02: :02: O2: O2: 02: 02: 02: O2: :02 :02their briefing in this matter. MR. BARBER: Your Honor. THE COURT: Yeah. MR. BARBER: I?m sorry to interject. Before you the Court gets going on the summary judgment, I believe we do have a small dispute over the order from the last hearing. THE COURT: Go ahead. MR. BARBER: Attorney Barker had submitted a draft order to me, I have prepared an alternative one. I thought that the Court was I had is this working here? THE COURT: 1 don't know. MR. BARBER: I had thought that the Court was ruling on the motion to strike, and for in camera inspection, and then was, basically, just explaining how it was going to rule today. The proposed order from Attorney Barker is captioned as a partial order on summary judgment. So, I have got both orders here, so they are a little different in terms of what the relief what the relief is in THE COURT: Well, I appreciate that. I don?t believe that any statement made by the Court at our last hearing would constitute any aspect of ruling on the substantive summary judgment motions. ?1010: 10: 10: :03:03: 10: 10: 10: 10: ,03: 02: :02: 02: 02: 03: 03: :03: 03: O3: 03: O3: :03: O3: 03: 03: 03: :03: :03What I was ruling on was the motion to strike. And I was I think your characterization is correct, that I was just indicating to the parties how the Court intended to proceed relative to in camera inspection in order to prepare for the summary judgment. MR. BARBER: And if I may approach, I do have copies of those different orders. Attorney Barker has seen mine. M8. BARKER: Your Honor. THE COURT: Well, I?ll let Ms. Barker respond, maybe MR. BARBER: Yeah. THE COURT: there is something I missed in that. MS. BARKER: Yeah. Only, your Honor, that was in court yesterday afternoon and did not have an opportunity to fully review the draft order by Attorney Barber. With respect to the Court?s clarification, and I?ll just be candid, the one issue that I had thought that the Court was addressing substantively at all regarding summary judgment was that I believed the Court stated that it was accepting the representations of the Sheriff's Department regarding the ongoing investigation, but that it would incorporate in a "w the Court would incorporate in a i0: 10: 10: IO 10 3.0: 10 10: :04: 10: IO: 03: {33: O3: 04: 04: O4: :04: 04: O4 04: "Vm4 "lofinal judgment an order for production of the records, subject to public policy arguments that might be reached presented at that time. And if that is something that the Court would prefer be in a summary judgment order instead, I completely understand and have no problem with that whatsoever, your Honor, and I apologize for any misunderstanding. THE that No, that's fine. I don't think that w? it really isn't the you?re right, perhaps that's not a mischaraoterization, but I will address that aspect of the motions as part of the So, Barber*s version ruling this morning. perhaps Mr. more accurately states what they are. MS. BARKER: I don?t know that I will have an objection. Why don?t I just look at it. THE COURT: Sure. MR. BARBER: May I approach, your Honor? MS. BARKER: Well, you don't need to present my version. MR. BARBER: Okay. THE CLERK: I didn't turn the sound system on. . THE COURT: Well, I don't have a microphone anyway. ,1m0n52 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 04: O4: 04: :05: 05: 05: 05: 05: 05: 05: 05: 06: 06: O6: ,06THE CLERK: Should I do that? THE COURT: Can everybody hear me okay? It?s a small room and we?re pretty quiet this morning. MS. BARKER: We can, your Honor. THE COURT: So, we?re not working with the mics, you can push them away and maybe that will encourage you to keep your voices up. All right. Off the record. [Off the record.] [Record resumes.} THE COURT: All right, let?s go back on the record. Once again, the Court has reviewed all of the briefing very carefully, and has conducted it's in camera inspection of the documents, and I do believe that I am prepared to issue a ruling for you here this morning. In a democracy, or a democratic republic, certain principals are of paramount concern to insure the sustainability of that form of government. In a government of, and for the by. people, there must be maintained a requisite degree of transparency. That is, people must be able to see how effectively their government functions. And there 'f07if): 10: 10: 10: :06: :06: O6: O6: O6: O6: O6: :06: G6: 06: :06: :07must be a free press. The fourth estate as it has been called, in addition to the legislative, judicial, and executive branchs of government. To examine the workings of those branchs, and inform the public of matters that are of importance to insuring that a government works as intended, and that the rights and, indeed, the best interests of its citizens are respected and promoted. This case, like so many before it, examines the tension between the government?s ability to effectively do the job that it's citizens have directed, and the right of those citizens to have access to the records of its government. On the national level, it's entirely appropriate that we, as citizens, can assure ourselves, that our government is employing policies and strategies to insure that, for example, we are secure from foreign attack, or acts of terrorism. However, exposing all intelligence gathered to meet those threats, or the methods utilized in a particular case, or the identities of individuals, or groups who are the subjects of ongoing investigation into such threats, would obviously hamper the government's ability to thwart them. So, there is a necessary tension between the government?s ability to function, 10: 10: 10: 10: 10: 10: .09: :07 :02: O8: 08 :08: 08: 08: 08: :08:09: 09: 09: 09: 09: 09: 09: :09and the public?s right to know. And this case is required to examine that same tension in another context. In Wisconsin, our legislature has made a declaration concerning the policy regarding Section 19.31, open records. Wisconsin Statutes states, "In recognition of the fact that a representative government is dependant upon an informed electorate, it is declared to be the public policy of this State that all persons are entitled to the greatest possible information regarding the affairs of government, and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government, and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, 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 is generally contrary to public interest, and only in an exceptional case may access be denied. Inn 10: 10: 10: 10: 10:" 10 10 10:- 10: H?im 11-0: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: .309: 09: 09: :09: O9: 09: :10: :10: :10This broad policy declaration is subject to both statutory and common law exceptions, in order to preserve important abilities of government to be able to function in the public interest." In this case, we are asked to determine whether records relating to employees of the Sheriff?s Department are subject to an open records request. first of all, to section 19.36 80, we turn, of the Wisconsin Statutes, which, in subsection 10, deals with the issue of employee personnel records. And that section provides that unless access is specifically authorized, or required by statute, an authority shall not provide access under the section which is the basis on which these open records requests are made, that contain the following information: That is, Information maintained, prepared, or provided by an employer concerning home address, home electronic email address, home telephone number, Social Security number, of the employee, unless the employee authorizes the authority to provide that information. A second exception would be information relating to the current investigation of a possible criminal offense or possible misconduct 10 10: 10: 10: 10: 101;. 10: 10: 10: 10: 10: :11: 11: 11: ll: :11: 11: 11: 12 12: ?32 .10: 10: 10: 10: 10: 10: 10: 10: 10: '10: 10: 5:13connected with employment by an employee prior to disposition of the investigation. Third, information pertaining to an employee?s employment examination. And, finally in subsection information relating to one or more specific employees that is used by an authority, or by the employer of the employees, or staff management planning, including performance evaluations, judgements, or recommendations concerning future salary adjustment, or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments, or ratings relating to employees. So, let's examine the requests that have been made in this case, and responses to those requests by the Department. On September 6th, of 2014, a request was sent to the Labor Relations Employee Services Department, which I?ll just refer to as LRES, and to the Oneida County Sheriff's Department, requesting certain information, a photograph of a Deputy Lee Lech; personal files of Mr. Lech; all records of investigation into allegations of misconduct involving, or against, Mr. Lech; all records of disciplinary actions involving or against Mr. Lech; ll 1a: 10. 1C: :14: :14; v14: 14 14: 14 14 :14: :14: :15: :13 :21and all records cf complaints, grievances, allegations and/or claims made against Mr. Lee Lechr On October 315:, of 2014, a second request was sent to LRES, and the Sfleriff's Department requesting all records created, or obtained, since May 1st, of 2014, reflecting any chances in - all records including, but not limited tm memos sent to _plac1.ng her an any manner of leave from employment, including but not limited to administrative leave; and --personnei file. position; A third request was made on December 11th, 2014, for all records relat;ng to all WhiCh _lS' or LREK and the Sheriff's investigations was, the subject cf the investigation. office did respond to these requests. The Lakeland Times believes that both entities inappropriately W;thheld some of the requested information, Specifically, that information contained in personnel files were not released. Specifically, records referred to as preemployment documents, and the records relating to disc;plinary actions agains: both Mri Lech and Ma, since the filing of motions that are 12 befcre the Court today, there has been reconsideration On the part of the Sheriff's Department, and the release of additional documents. The Sheriff's office has released records relating to past investigations involving Mr. Lech, except for one investigation. Records relating to past investigations of alleged misconduct involving Ms. - And records contained in what the sheriff's office refers to as preemployment files, specifically, applications, resume, and certifications. It's the Court's understanding that those files have been released to the Lakeland Times. It would now appear that there are some remaining issues for the Court for purposes of these motions, and that is, first, Should LRBS and Lisa Chazbarneau be dismissed from this action? And perhaps I should just take that matter up directly. It is apparent from the responses that have been made by the Sheriff's Department that there are no records maintained by LRES that would not fall within the statutory exceptions of (lDbtA), excuse me And that the information that is appropriately withheld to the extent that it is in personnel files are clearly those matters which are personal to the employee, and do not relate to the real issues that 13 10: 10: 10: 10 10: 10: 10: 10: 10: 10: I118: 10: 10: 10: 18: 10: 1f:18: 18: :18: 18: 18: 18: 18: 18: 18: 18: 19: 19: 19: :19-determine that it would be appropriate are before the requests in this court. I think it's fair to characterize that this litigation is between the Sheriff?s Department and the Lakeland Times, and that there is no basis for continuing LRES, or Ms. Charbarneau as Defendant's in the action, and the Court does so rule. Second question would be, should the remaining preemployment records that were not released, be released? And that would be preemployment background checks, and evaluations. Initially, and when we had our last telephone conference, it was my intention to rule on that issue as one of a claim of statutory exemption, a blanket exemption, if you will, and not to be to concern with what the contents of those individual documents might be. Following my in camera inspection of the other contested matters here, that is the documents contained in a Exhibit filed under seal with the Court did the Court, numbered Exhibit for the court to review the unreleased preemployment background check documents and evaluations for in camera inspection. Having done so, the Court is satisfied that all information contained in those preemployment 14 Leah, and for --do appropziate preemployment investigation, and letters of reference, to Mr. Lech, and --fcr their potential employment. or other comments relating There is an argument made here that there should be a distinction between those types of documents that are generated post employment, rather than And the statute is really not specific in that regard, there may be some ambiguity there, which the Court would acknowledge, but I believe that the phrase, "staff management planning", contained in Particularly because the phrase, "letters of reference", is in ded in that subsection, would mean that the term "staff management planning", contemplates the hiring process, as well as the active management of employees cnce hired. And, there does not appear to be any direct precedent oh polnt that can further guide this Ccurt, Although I do note that in the case of, Lakeland Timefi versus a similar argument was Lakeland Union High School, made. That is, of course, an decision, it is not precedent, but has been cited for persuasive authorityi And it certainly appears from Judge Cane's opinion in that matter that these types of 15 10:22: 45 54 am: 10:23: 10:23: 10:23:' 10:23: 10:73: 10:23: 10:23: 13:24: 10:24: 20:24: 19:24 ;0:24 10:24: 10:24: 10:24preemployment investigations, letters of reference, and conversations with others whom may have knowledge of a potential applicant for public employment would fall under the concept of staff management planning in that subsection. 1 will make a further comment about those records a later on this morning, but for purposes of the motions for summary judgment the court is determining tnat the information requested constitutes staff management planning, and is exc1uded from disclosure by that statute. The Sheriff's Department has represented to the Lakeland Times that _is currently the subject of an ongoing investigation. These representations have been made by the Sheriff on several occasions under oath. Those representations have been made by counsel to the Court, with all the understanding of ethical duties of Counsel to the and i don't Ccurt, have any basis to believe that it is not true. That there is an ongoing investigation relative to_ That clearly falls within the statutory exception in Having said that, it's clear that the Court is not going to order release of any of those documents at this time. I think the parties 16 l0 10 10: 10 10 10: 10: ':10: 10: :25: :25: :25: 25 :25 :25: 25: :25: :25: :25: 26 26: 26: 26: 26: 26: 26: :26: :26: 26 26: :26: .26recognize, or certainly should, that there is an ongoing duty to supplement a response to that request once the investigation is concluded, and whether or the doCuments will be released are We is a decision that will be subject to appropriate investigation, by the Sheriff?s consideration, and review, Department. And that the Sheriff's Department may elect to conduct its own balancing test in that regard to determine whether the documents ought to be released. That is, whether they contain information in which the private interests of the individuals involved, and the Department, exceed the public's right to know. So, it may very well be that this litigation is not, ultimately, concluded by the ruling today. That?s an issue that we can probably take up when we?re done here this morning to discuss whether at this point it should just simply be acknowledged as an ongoing request, and that any, if there was a further denial of records following the conclusion of that investigation, it would require another litigation. Or whether, in some fashion, this case should be held for that determination. We'll talk about that, because it has some interesting aspects relative to the finality of the Court?s decision 17 ?10: id: i :22: 10: 10: 10: 27: 27: 1010: l0: 10: 27: 27: 2'7: 27 :27: 28: 28: :28: 28: :28: 28: :28: :28today, and the rights of the parties to appeal, so we'll take that up. So, principally, we are here to discuss the release of documents that were contained in the record, filed with the Court under seal as a Exhibit The Sheriff?s Department has used a number of reasons for its decision not to release thoSe documents. The Department believes that it?s not in the public?s interest to release documents generated during an internal investigation, because it could interfere with, or impede law enforcement's ability to conduct thorough, and confidential, internal investigations. Second, that if the information contained was factually inaccurate it could cause damage to the subject's reputation. That disclosure would discourage victims and witnesses from providing information during the course of personnel investigations. That it could result in a loss of morale in reports regarding unfounded allegations were released. That the records contain raw investigative data, and do not contain confirmation of events in any conclusive way, and, therefore, they are inconclusive in nature, and not releasable. And, finally, the rights of victims and witnesses, the rights of victims l8 10: 10 10 10: it}: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: .31: 29: :29: 129:; 29: 29: :2930: 30: 30: 30: 30: :30Bariboo, and witnesses to be treated with dignity, respect, courtesy, and sensitivity. As noted in Hempel versus City of all of these are valid considerations. Hempel, I think, is a very interesting case because in that case, Hempel, who was an employee of the City?s Police Department was a subject of an internal investigation regarding allegations of sexual harassment. And when one looks at the allegations there, it's mostly offensive verbal statements concerning woman in general. Not something that we would think is terribly concerning, in the grand scheme of things regarding the need to protect someone's reputation from having made them, or for people who came forward and disclosed that these statements had allegedly been made by Officer Hempel, to protect their identity or so forth. And, as noted by the Court in that case, the original complaint had been provided to Officer Hempel in an un?redacted fashion. That he already possessed most of the information necessary to conduct his own investigation regarding the matter. But, nonetheless, after examining the City?s determination not to release the records, that decision was upheld based on a number of factors that 19 10: 10: 10: 10: 10: 10: 10: :31: :31: 3l: 31: 31: 31: 31: :31: 32: 32: 32: 32: 32: 32: :32: 32: 33: 33: :33are very, very similar to the same reasons for denial of records that the Sheriff's Department has used in this case. Hempel was very careful to state that this decision should not be interpreted to suggest a blanket exception to the open records law, and notes that, as in every other case, the records custodian must perform the balancing test to determine whether the public interest and nondisclosure in a particular case outweighs public interest in the disclosure. Justice then, Chief Justice Abrahamson, dissenting in the opinion, expressed her fear that the decision of the majority, even though they say it should not be construed narrowly, was likely to result in other authorities using the same reasons advanced by the Bariboo Police Department in as she notes with some denying requests. And, persuasion, at paragraphs 129 through 143 of the decision in her in dissent, that case law in many respects is contrary to some of the reasons used by the Bariboo Police Department in denying records. She was concerned that we would call these reasons the, quote, "exceptional six", unquote. When looking at future requests, and to some degree that?s true here. But, I think we need to go back to :33: 10: 10: 10: 10 10 10: 3.0: 10: 10: 10 10: 10 10: 10: CLO: 10: 10: 10 10: 10: 10: .35: 33: 33: 33: :34: :34: 34 34 34 34: :34: 34: :34: 34: :34the majority decision in that case and clearly understand what I just indicated, and that is, the majority itself indicated that these cases are taken up on a case by case basis, that they're highly fact specific, and that there is no blanket exception to personnel issues and internal investigations. We know from the decision in 2006, Kroeplin versus DNR, Wisconsin Appellate 227, that misconduct investigations and disciplinary records are not accepted from public disclosure under the statute, and section 10(8), of is the only exception to the open records law relating to investigations of possible employee misconduct, that is, an ongoing investigation. So, once an investigation is concluded, there is no blanket exception, and we?re taking up, today, essentially, a de novo review by this Court, of the Sheriff's Department's reasoning and decision not to release the requested records in Exhibit So, the first question is, is this an exceptional case? In many respects, it is. The allegations that are contained in this internal investigation are of an extraordinarily serious nature. And, clearly, to a degree that far exceeds the concerns expressed in Hempel, and implicates 21 ?10: 16: 10: 10: 10: 10: 10: 10: 10: l0: 10: :36: 36: 36: 36: 36: :36: 36: 36: :37: :37: 37: 37: 38: 38: 38: 38: :38: 38: 38: 39: .39directly, really for the first time in Wisconsin law, what the interplay ought to be between victims of and criminal conduct, or alleged criminal conduct, witnesses to such matters. The interests, both of privacy and reputation of an individual who is made the subject to such an investigation, and the public?s right to know. The matters contained in Exhibit reflect an investigation into the conduct of a Sheriff's Department employee, with reference to a coworker, another Sheriff?s Department employee, under circumstances in which the conduct investigated could be considered criminal conduct of a very high degree. Sexual assault. And the Court is going to take a kind of an aside for a couple of minutes to kind of address that issue more broadly because I think it plays so directly into my decision as to where the public interest lies in a matter like this. according to the National Sexual Violence Resource Center, one in five woman will be raped at some point in their lives. Extraordinarily high incidents of terrible criminal conduct. In eight out of ten of those cases the victim knew the person who sexually assaulted them. Eight percent of those cases occur while the victim is at work. This is not 22 lo; 10: :39: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: g?l: :39: 39: 39: 39: 39 40: :40: 40: 40: 40: 40: :40: 40: :40: :41: :41small problem. This is something that deserves a spotlight in order to address these issues and try to mitigate the effects of that terrible conduct. 1 can tell you from my own experience as a judge how impressed I am by the degree of harm suffered by victims of sexual assault. These crimes leave terrible and lasting marks. The ?m the damage to victims is extraordinary, and is enduring. We also know from the Department of Justice statistics, as well as statistics provided by this National Sexual Violence Resource Center, that only about onewthird of rapes are reported. Among college students, we know that that?s extraordinarily higher yet, more than 90 percent of sexual assaults go unreported. And there was.just a bill introduced in the legislature this week to provide certain protections for victims of sexual assault, that if they were underage and had consumed alcohol, that it would be prohibited from issuing them citations for underage consumption of alcohol, if that was a factor in leading to the assault. And, most of the police departments around the State, particularly campus departments, indicated that was already their policy, but, nonetheless, the author of this bill believes that it's appropriate for it to be law so that there 23 :_lQ i010: .HWF43: l0 10: 10: 10 10: 10: 10: 10: 10: 10: :41: 42: 42: 42: 42: 42: :42 :42: 43: :43: 43: :43: 43: 43: :43: :44encouragement, or at least not an additional barrier, for young woman who have been assaulted to come forward. We also live in a time where we can look at events on the national scene and understand that the decision of whether or not to report a sexual assault is an extraordinary one for a victim. That?s why two?thirds of assaults go unreported. There is prospect of public humiliation, there may be aspects of conduct involved on the part of the victim that would be embarrassing. And, the difficulty of coming forward, wanting to press charges, wanting to go through the rigors of participating as a prosecution witness, and all of that, all of what that entails, is oftentimes too much for the victims to bear. And so we see a situation today, one example, a prime example, would be allegations that have been made against comedian Bill Cosby, where once one person makes a public allegation of this conduct emboldened ~w we see that others are, perhaps, emboldened either by the passage of time, or by the courage that, I guess, perhaps, garnered from not being the only person in this position, and almost a floodgate is opened as to the number of allegations that are made. Does this make the allegations true? 24 10: 10 10: 10: 3.0: 10: 10: 10: 10: 10: Iqu .16: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: :44: 44: :44all. But I think it is certainly a strong indication for us today to think about how difficult it is for a victim of sexual assault to come forward and how that victim the decision of whether to be a victim, if you will, rests squarely with the individual. In this case, the alleged victim chose not to come forward. The events that are the subject of the investigation in Exhibit lOwA relate to matters that occur on or about October of 2011. MR. BARBER: Your Honor, I apologize for interpreting. I am concerned that the Court's decision is, in effect, revealing the contents of these documents. THE COURT: You will understand that I am not doing that. Interviews with the alleged victim and witnesses did not take place until several years later. Those interviews took place between the 22nd of August, and 8th of September of 2014. And, so, it is really.in that time frame when these matters came to light to a degree that the Sheriff?s Department, as an authority, learned of the them, and conducted it's investigation. Also of some interest to us today, 25 10: 10: 10: 10: 10: 10: 10:- 10: 10: 10: 10: I I148: l0: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: .49: :47least to me as I prepared for today's decision, was a series of articles that have been published on the internet in the last month by the Associated Press. The AP conducted a year long investigation into what it characterizes as the problem of rape and sexual misconduct committed by law enforcement officers. Their investigation uncovered more than a thousand law enforcement officers who lost their through 2014, licenses from 2009, for such incidents. Their investigation reveals that in case certain cases, law enforcement officers who have been accused of sexual misconduct have jumped from jobwto?job, and at times facing fresh allegations of subsequent assaults, because of a tattered network of laws, and lack of screening that allowed them to stay on the beat. There is a national decertification index which contains the names of nearly 20,000 officers who have lost their licenses for problems that include sexual misconduct. But, contributing to that index is voluntary, and apparently only 39 states do. So, even though this would be a very uncommon offense by a law enforcement officer, the totality of such cases raises legitimate public concerns. No different than the same concerns that we have 26 10:- 10: 10: 10: 10: 18: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 10: 1?39: 49: 50: SO: 50: 50: 5f}: 51: IVsu 51regarding excessive use of force, no different than we have regarding teachers who commit such offenses against children being transferred from district to district, or from a clergy being transferred from perish to perish, after these allegations come forward. These are important matters. And, ultimately, I think when we look at the extraordinary importance of these matters, there is no way that this Court can determine that the in privacy interests of the victim, or perpetrator, this case, are not outweighed by the public interest, in making sure that when allegations of this nature come to light, that an appropriate investigation is conducted. And there is no way to determine the effectiveness, or thoroughness of that investigation, other than to authorize the release of records. Wisconsin Now, having said that, recognizes by statute, the rights of victims and witnesses. Chapter 950 contains all of the provisions regarding that, and generally Chapter 950 is intended to apply in the more public context of prosecution. But, it does define a victim as a person against whom a crime has been committed. A victim does not include the person charged with, or alleged to have committed the crime. 27 :52: 10 1f.10: :52: 52: 52: 52: 52: :53: 53: :53: :53: 53 :53: :53: :53: :54: :54: :54: 54: 54 :54:04Witness is defined as any person who has been, or is expected to be someone to testify for the prosecution, or who by reason of having relevant information in subject no call or likely to be called as a witness for the prosecution, whether or not any action or proceeding has yet been commenced. And the victims of crime have the right to be treated with fairness, dignity and respect, or privacy, by public officials, employees, or agencies. They have the right not to have personal identifiers disclosed. Witnesses of crime have the same rights not to have identity disclosed. And, so, the Court believes that the matters contained in Exhibit are appropriately subject to disclosure with appropriate redaction. And, the Court has taken the time to exercise that redaction on the documents which are the subject of Exhibit I have done so to withhold the identity of the alleged victim, and the identity, rank, and gender of each witness. And all witnesses in this matter are Sheriff's Department employees. I am concerned that disclosure of gender or rank could lead to identity, and I don?t believe that that's appropriate. As Chapter 950 tells us, the notion 28 IO10: 10: 10: H.156:58: :55: 55: 55: :55: :56: :56: :56: 56: 56: 56: :57: 57: 57: :57: 57: :57: 57: 58: 58: :58victim does not include an individual alleged to have perpetrated the offense, And I can find nothing in Wisconsin case law that would indicate that once an investigation is concluded, the identity of someone who is alleged to have perpetrated a crime is excluded from public knowledge. This is very concerning in this because the Department has made a case, to me, conclusion, or at least as expressed in its briefs to this Court, and I believe to some degree in deposition testimony given in the matter, that there are extraordinary reputational interests at stake. I agree, there is no doubt about that. The Department further argues that releasing documents when the allegations consist of or when the uncorroborated hearsay statements, allegations are unsubstantiated, unfounded, or untrue, which are all statements made by the Department in this case, are, in fact, the case. I have grave concern that if there is a reason to believe these allegations are unsubstantiated, unfounded, or untrue, they are not found in the documents contained in Exhibit Exhibit lOmA includes a statement by the alleged Victim. It contains statements by witnesses that, of course, might be considered 29 it3.0: II :59: 1-10: 11: ll: 11: 11 ll ll: 11: ll: 11: 11: 58: 58: 58: 58: 58: :59: 59: :59: :59: :59: 59: 59: 00: OO: 00: :00: :00hearsay. I do not find those statements to be uncorroborated in that the statements are remarkably and reflect to the consistent and, among witnesses, extent they reflect hearsay, or information learned from the alleged victim, they do so temporally over the period of time from almost immediately following the event, until relatively shortly before this investigation. That consistency is apparent in the documents. Furthermore, the statement of the alleged victim, herself, contains information and revelations that would be unlikely to be contained in a confabulation, because not everything reflects particularly well to her in the events. Ultimately, for that for these reasons it's clear that redaction is extraordinarily important. And, really, what is also of extraordinary importance is understanding what the real purpose of this information is. Personal details of a violent sexual assault ought not to be newspaper fodder. There is information contained in these records that is salacious, would cause extraordinary embarrassment to a victim, and may prove to be interesting reading to certain elements of any newspaper's readership, but ultimately those details 30 ll11: ll: 5.02:02: 02: :0203: 03: :03: 03: 03: .04 :22 :28 :34 3.42 :46 -:aren?t the important part of the story. It seems to me, that matters that we have already talked about today, that is, whether conduct rises to this degree, and what does a Department do once it receives information of it, is what?s in the public interest. I think most newspapers subscribe to a journalistic ethic that, independent of any order of a court, withholds the names of victims of sexual assault. And you?re not going to receive the names of the parties from this Court We from this Court. As I?ve previously noted, the allege victim in this case chose not to become a public victim. And that creates some very interesting considerations here. This is an exceptional case, because the nature of the allegation is of extraordinary serious consequence to the person alleged to have perpetrated it. If that event did not take place, the damage that can be done to that individual is almost without measure. We all know what harm can be caused by false allegations of criminal conduct. And I want to emphasize that it is the nature of the allegation here that I think trumps the privacy interests of the parties involved. These events are alleged to have happened between 31 1111: 11: ll: .1104: O4: :04: O4: O4: 04: 05: :05: 05: 05: 05: (35: :05: 05: O6: {36co?employees who were not on duty. And as far as this Court is concerned it may be a violation of a Department policy against fraternization, it may be some other type of error in judgment, if others wish to make that judgment, but if we were talking about consensual sexual contact between two adults who were not on duty, in my mind it would never reflect on fitness to serve as a law enforcement officer. That's not the allegation here, and that?s why I think the public interest weighs more heavily for the reasons that I have stated. Now, it is, as 1 indicated, the Court's intention to order release of the documents with redaction. And that leads me to and that is the decision of the Court for purposes of the motion. That leads me to a couple of matters that needs to be as I have discussed with counsel, because we have, said, a very extraordinary circumstance before us, and it is an exceptional case. These issues have not been full explored in any reported decision. My decision to authorize the releaSe of the documents, even with redaction, may be subject to appeal by the Department. And, I so, I need the help of counsel as to how we proceed here. In other words, do I release the Court?s redaction of Exhibit to Defense Counsel? 32 ll: 11: 11: 11: ll: 11: ll: ll: ll: 11: '40% 11: 11: ll: 11: 11: ll: n,;06: 06: 06: :06: 06: 07: 07 07: 07: 07: :07: :07: :08: :08: 08: 08: 08 08: :08: 08: 08: .08They know what?s in the documents to begin with, of course, and they would know to what degree the redaction would serve the interests that they expressed. May not be enough to prevent them from still opposing the release, but it would give them an opportunity to do that. I don't think I can release the redacted version to the Plaintiff today, because you can't that bottle. And the other concern that I have is, when the notices have been provided to individuals concerning potential release of records the authority, the Department w~ Sheriff's Department, has indicated in its notice to in statutory notice to the individuals involved, that it did not intend to release. The individuals were made aware of the requests, they have not intervened, thus far. And, so, the second question is, is there any further obligation on the part of the Court, or on the part of the authority to provide an additional notice of the Court?s order? So, having said that, I guess I will 'let Counsel weigh in and help me with those issues. MR. BARBER: A couple of things, your Honor, before I get there I just want to have a record here that that the nature of the 33 ll11: ll: 11: 11: 11: ll: 11: 11: ll: 11: 11: ll: :08: :08: :09: O9: O9: 09: 09: 09: 09: :89: O9: :09: O9: 09: 09: 09: 09: 09: 09: O9: 09: 10: 10: :10allegations, and the timing, the dates that the Court mentioned, none of that was in the public domain thus far. So, i am I am very concerned that just based on this hearing there is going to be a newspaper article tomorrow revealing that, which is going to it may indirectly reveal the contents of what happened here. THE COURT: 1 am not sure that that?s the case, and if it is w? well, the nature of the allegations were not in the public domain. You're correct. That?s true. I don't know, Mr. Barber, how I could have made a ruling today without discussing what it is I?m ruling, and why. MR. BARBER: I understand I I I understand, that that that?s been a difficulty, I think everyone in the case, and I have encountered in other public records cases as well. But, due to that I am going to make a request that the transcript of this proceeding be sealed, because I am we haven't determined appeal or not, but I need to preserve our rights to do that, if necessary. And and I know that this is rather extraordinary, but given that the nature of the allegations were not public, and given the Court?s characterization of "a 34 ll11: ll: 11: 11: ll: 11: 11: 11: 1:28: 1:10: 10: 10: 10: 10: 10: 18: 10: :10: :10: 11: 11: ll: 11: 11 11: 11: 1.violent sexual assault", I am going to ask the Court to impose a gag order on people in this courtroom until the final disposition of this case, one way or another. MS. BARKER: Your Honor, in response. I would say, first of all, I think the Court has already determined that it is in the public interest to release so much of the records as any statements made by the Court reflect, certainly, the redactions were not stated to cover those matters. Secondly, with reapect to a gag order, you know, I think that, that is unfounded, eSpecially because there is there has been in the public domain, as we have been arguing all along, an allegation of sexual assault involving a Sheriff?s office employee who actually is identified in those records, the insurance records that were released, and to say mm and the Sheriff?s office has essentially been saying all along, "No, Attorney Barker?s theory that the" THE COURT: Don't use names, please. MS. BARKER: Oh, I?m sorry. THE COURT: Don't use names. No, no, you can use your name, or 35 ll: 11: ll: 11: ll: 11: 11: 11: ll: I'dll:11Mr. Barber?s name, be careful not to mm 1 have been careful not to indicate identities. MS. BARKER: I appreciate that. Okay. That is well taken, thank you, your Honor. There is mm there are records that were put in the record that were put in the record in this case that have been released, and that have been released to the public domain that identify a sexual assault within the Sheriff?s Department involving a Sheriff?s office employee, and the Sheriff's office has repeatedly stated in briefs, and submissions that Attorney Barker is all wet when she says that these records have anything to do with that. She's making that up, it's fabricated, don't pay any attention to it. What I am hearing today to suggest that, that is not me that, that position is not legitimate. That these records were, in fact, all along related to that information. That it is in the public domain, and that they have been withheld that information has been withheld illegitimately for too long. Now, I am not saying, your Honor, that, with respect to the redacted records I would like a moment to confer, if the Court would allow 36 11: 11 ll: 11: 11: ll: ll: 11: ll: ll: 11: ll: 11: 11: ll: 11: ll: 11: 11: 11: 11: .13: :12: 12 :12: 12: 12: 12: 12: 12: 12: 12: 12: 13: ?13maybe a brief recess to confer with my client, because I understand the concerns about appeal, and mm and unwringing the bell, and so forth, and I would like to talk to my client to see how to accommodate that. But with respect to a gag order, I I certainly think that is unfounded. I do not- think the Court has stated anything other than those essential items necessary to make a record that would figuring out how to proceed one way support, you know, or the other. And we thank the Court, as well, for the careful consideration of all the sensitive, you know, the interests for and against disclosure, and the importance of all of the ramifications. MR. BARBER: If I may respond, your Honor. First, I do disagree with Counsel characterizations on the positions that we're taking in this case. There was one insurance claim document that was inadvertently released. I don?t think that, that document which has been filed, reveals any information that was revealed during the course of the Court?s ruling relating to this particular investigation, relating to the time when the alleged acts occurred, and relating to the fact that the 37 ll: 11: ll: 11: ll: 11: 11: 11: 11: ll: 11: ll: 11: ll: 11: ll: 11: 11: ll: 11: ll: .15: :1314: 14: 14: 14: 14: 14: 3.timing in terms of dates, and also relating to the timing in terms in terms of being on duty, or off duty, none of that was in the public domain. All of that is contained in the documents. If an appeal is taken, and that information is out, that that that's going to negatively affect our ability to preserve our rights. If that information is out tomorrow, and it will be. I mean, we have got reporters here, that information will might even be out today. And, I certainly think that the transcript should be sealed. Counsel can obviously, I mean, we will have access to it, the Court of Appeals will have access to it. Obviously there is more details that weren't discussed todayconcerned that with that cork being out, that is going to may w" may impact our ability ?w effect our ability to appeal. THE I appreciate your concerns, Mr. Barber. I don't know where I would have had authority to conduct this hearing as a closed hearing. I don?t know think that there is anything particularly in the statute that would grant me that right. And what we do here in Circuit Court is almost invariably 38 118 ll: 11: 11: 11: ll: 11: 11: ll: 11: 11: 11:1 11: 11: 11: 11: ll: 11: 11: ll: 11: 11: 15: 15: 15: 15: 16: 16: 16: 16: 16: :1617itself a matter of public record and transparency. This case has been pending for a long while, and not because of dilatory conduct on the part of Counsel for either side. Or not, in my opinion, as a result of any obstructionist conduct on the part of the Defense. 1 think the parties have recognized potential importance of this case, and have approached it with caution. 1 could ask the Clerk maybe to look at the date the complaint was filed in this matter. THE CLERK: February 24th, 2015. THE COURT: Okay. So, we are more than 11 months into litigation on open records which are matter that in the ordinary context, and even by requirements of statute would require a much more prompt response by the parties and the court. And when we were approaching the summary judgment, Plaintiff, itself offered the Court the opportunity to take more time for its decision if it deemed it necessary. So, I am inclined to agree with Mr. Barber?s position that this is a case in which, once again, you can?t un?ring a hell, or uncork a bottle, and put that cork back in the bottle, if you will, and I guess you can always uncork one but, 39 11ll: ll: .20: 17: 18: 3.8: 18: 3.8 18: 18: 3.8: :18: 19: 19: :19: :19: 19: 19: 419: :19: :19trying to maintain the status quo until appropriate legal process has concluded, is important in this case. Again, it is potentially an exceptional case from the standpoint that the right of parties identified in such a manner has really never been tested in the open records law. We still have this issue to discuss about notification to the parties who may be subject to requests. And it's all to easy in this particular case, despite the Court?s care in not identifying individuals, or how they relate to this investigation, for conclusions to be reached that may be inaccurate, or accurate, either way they're conclusions. And that?s not an appropriate means of moving forward. I will direct that the transcript of this hearing remain under seal of the Court. The Court will, at this point, continue to maintain under seal all the documents that have been provided. At this point, it?s my understanding that the contents of other sealed matters have been given to the Lakeland Times as a result of the changing considerations that the Department has had, and weire really dealing with But I haven't have ordered anything unsealed, and so everything that has been filed here will remain 40 :2120: :20: :20: :20: :20: 20: 20: :20: :20: 20: :21: :21: :2l :21: 21: 21: 22 :22: 22 :22: :22: :22under seal at this point. And, I will direct that reporters who may be here, parties who may be here, or others who may be here simply as witnesses to the proceedings today, will be directed by the Court not to reveal the contents of today's ruling. Specifically, I think it is appropriate, perhaps, to say that the Court did grant a judgment in favor of the Lakeland Times to release certain documents as redacted, but that reference to the nature of the investigation, or dates, should not be disclosed until further order of the Court, and resolution of these matters. And I did want to make one other comment, and that is that we have that order in place, and an understanding by our press, that given the nature of the allegations, the Court did believe that this as, yet, perhaps, legally unresolved issue, of what constitutes MS. BARKER: The employment, your Honor. THE COURT: w? staff management planning, as it relates to preemployment documents, I wanted to take a look at what was contained there from the standpoint of whether there could be an indication of a failure to appropriately address any prior 41 .?7:23ll: 22: :22: 23: :23: :23: 23: 23: :23: :23: 23: :23: :24: 24: 24 :24 24 :24: :24: :24: =:24 :24concerns on the part of the alleged victim for honesty, and for the alleged perpetrator for any indication of prior difficulties, in that arena. And, although I have made my ruling today based on the categorical nature of those documents, I will simply assure persons present that there was no reason for that concern in any event. So, that's what makes this, again, kind of an exceptional case, and we need to think about how we conclude it. So, I will issue that order. And I would then, again, like to turn our attention briefly to whether or not any individuals are entitled to additional notice. And you wanted an opportunity to consult with your client, so, maybe this marks a good point to take a brief recess and we can come back and take up those issues. Okay. MS. BARKER: That would be fine, your Honor. Could I just add one quick thing on the record? THE COURT: Yes, ma'am. MS. BARKER: If we could I am understanding the Court?s order with respect to the transcript being sealed, and the gag order as essentially being in the nature of a stay pending appeal. Would that be accurate, a stay of execution 42 llll: 11: 11: ll: 11: 11: ll: 11: :24: 24: 24: 24: 24: 24: 24: 24: 24: :24: :24: :24: :24: :25: 25: 25: 25: 25: 25: :25: .41':judgment? THE COURT: Well, I think that is maybe a fair way to characterize it. MR. BARBER: If I may jump in? THE COURT: Yes. MR. BARBER: Normally in these types of cases whenever the I am assuming the Court's going to issue the writ, which is mm which is what was prayed for from the complaint, and normally in these type of cases if there is an appeal we file a motion to stay the writ pending appeal. So, 1 think w? and we can talk about that when we come back in terms of ultimate disclosure on 104A. But I I do think that the sealing of the transcript, and the gag order, I mean, that's in my mind, not the same thing as a stay of the order and final judgment of the Court pending appeal. THE COURT: let?s Okay. All right, take a brief recess. I am going to provide Defense Counsel with a copy of the proposed redactions, because they?re entitled to that in any event today. Thank you. MS. BARKER: Thank you, your Honor. [Off the record.] [Record resumes.] 43 11742: ll: 11: ll: 13.: 11: ll: 11: -- :41: 41: 41: 41: 41: 41: 41: :41: 41: 42: 4.2: 42: 42: 42: 42: 5&2: 42: :42: :42: :42: :42THE COURT: Okay, we'll go back on the record in the matter of Lakeland Times versus Oneida County Sheriff's, et al., and note the same appearances. So, once again, Counsel, I think we need to talk about timing for an order of release, and then, again, help me address this issue of whether you believe there is any requirement for further notice to any persons of the prOposed release. MR. BARBER: So, our position on that is, I think, separating the issue of notice from the potential appeal. THE COURT: Right. MR. BARBER: Under 19.356(l) and (2), it does state notice is required, if and the Court decides to permit access as subject to the conditions there. Given that this information was not previously released, I think it's at least I am not aware of any case dealing with this specific situation, but I think it?s-at least arguable they?re entitled to notice in the event they want to intervene on a subsequent appeal. MS. BARKER: And, your Honor, I guess, it would be our position, I don't want to take actually a substantive position on whether notice is 44 ,ll: 11: :42: :42: 42: 42 :42: :42: :42: 43: 43: 43: 43: '43: 43: 43: 43: 43: 43: :43: :43: :43required here because if those parties file actions independently, or as they they may do if they are given that notice, or they may claim they are entitled to do, we may, you know, be making arguments then about whether they are entitled to raise those arguments. I think that at this juncture it is the Defendant?s call whether they?re going to issue notice, or whether they think they have to. And because the Court is effectively staying it's ruling pending appeal anyway, if they do that immediately there shouldn't really be any further delay than there would be anyway. THE COURT: I agree. MR. BARBER: And THE COURT: And I guess my question was, the statute anticipates that it's the authority?s obligation to provide notice of an impending release. MR. BARBER: Um?hmm. THE COURT: And certainly there has been notice of the request, but the individuals have previously been advised that it was not the intention to release, and so one could, perhaps, understand their desire to let the Sheriff's Department carry the water here, if you will. 45 ll: 21: ll: 11: 11: ll: 11: ll: 11: Ill:44: 44: 44: :44 44: 44 44: :4444: .44It?s not clear at all by the statute whether we once we get into litigation, whether it?s the Court?s obligation, or whether there is a continuing obligation of the authority. I think maybe 1 am hearing that we?re all kind of in agreement today that the in an abundance of caution, the authority will provide that notice that is anticipated by statute. MR. BARBER: And I agree, your Honor, because certainly we weren't trying to take a position one way or another, but like you said, in an abundance of caution. And procedurally, again, the way it would work is the Court's going to issue some would form of writ, and then pursuant to that writ we be obligated to disclosure. But with the understanding we?re going to be filing a motion to stay that writ pending appeal. So, it ultimately may be a moot point anyway, but I think in an abundance of caution notification will be made. THE COURT: Okay. Thank you. MS. BARKER: Thank you, your Honor. I think I e? at some point I want to clarify a couple things regarding the gag order, because certainly we do not want to in any way step over any boundaries or anything. But I wanted to just 46 11: 11: ll: 11: 11: il: 11: 11: 11: ll: 'a4& :45: ll: ll: 11: ll: 11: 11: ll: 11: ll: ,46: 45: 45: 45: 45: 45: 113:mention, that, perhaps, for purposes of the appeal issue, which I think is the looming issue here, how do we get to the next level as ~u as expeditiously as possible. The Court had raised a question regarding the ongoing investigation that it is accepting exists and how should that be handled for purposes of as it had finality. I think that the Court can, stated initially at the telephone conference, make an order that the records simply be disclosed at the conclusion of the investigation, as the statute contemplates, but reserve, or retain jurisdiction to hear any disputes relating to public policy, issues that maybe raised at that time. Or, also, you know there is, I believe in the Zelmer case, they mention and reserve in a footnote that the facts, you know, weren?t presented to the Court in that situation, but could arise some day where there?s an investigation where no decision is made to impose discipline, but the investigation goes on and on without any formal finding of'that. At what point would there have to be a conclusion factually that it should be deemed concluded? And I think that this Court, with its background, and the time and effort that has been expended is in the best position to look at all those 47 ii: 11: 11: ll: 11: 11: ll: ll: 11: ll: 11: :47: 11: 11: ll: 11: ll: 11: ll: :46: 46: 46: 46 46: 46: 46: 46: 46: 46: 46: 47: 47: :47: :47: :47issues. THE COURT: 1 agree. I don't think it would be appropriate at all for if there were to be a separate filing, that it be assigned to some other judge, or that you should get somewhere else with all the history that we have had here. But I am a little bit concerned about whether an appeal of the Court?s decision today would be considered an interlocutory appeal, which is discretionary and may not be taken up by the Court. And I think, for my intention, the Court's ruling today is a final order for purposes of appeal. And so to retain that one aspect of the matter, I guess, what I would simply suggest is that the writ ought to provide just an acknowledgment that the authority is under a continuing obligation to provide records requested of the ongoing inyestigation when concluded. And I think maybe the best way to indicate would be, this Court would retain jurisdiction over that issue. I would authorize the filing of any pleadings regarding that matter without additional fee. So, I think maybe the best way to look at it, because we have been assured that it is unrelated to any of these matters, the continuing investigation, that we take it up, if necessary, as a 48 ll: 11: ll: 11: ll 11: ll: 11: ll: 11: 11: ll: 11: 11: ll: 11: ll: 11: 11: 11: ll: 11: .49: -- :48 48: 48: 48: 48: :48: 48: 48: 48: 48: 48: ?48matter of separate litigation, and I'll let you file, if it becomes necessary, without further fees, and we'll take it up as a separate piece of litigation. Does that make sense? MR. BARBER: Defendants would agree with that approach. 1 mm I do probably 60 to 70 percent of my work is appellate work: And I would have significant concerns if the order was left open in that regard. THE COURT: Yes, I don?t want MR. BARBER: 'And, I mean I they?re opposing counsel going can argue, but this case presents the possibility of a cross appeal, and I think it's in everyone?s interest to get the thing done with. So, we we we would be we would agree that the best idea is just to have that part of writ is to say something to the effect, "Once the investigation is concluded, the Sheriff?s office shall notify the Lakeland Times of of the completion of the investigation, and then at that point we, you know, we without even knowing what what those documents would be at that point, you know, we can take up subsequent issues then. MS. BARKER: Yes, your Honor. 1 will do some brief review. I know I have in the past 49 ll: ll: 11: ll: ll 11: ll: 11: ll: 11: ll: 11: 11: ll: ll: 11: ll: 11: 11: ll: 7:49: 49: 49 49: 49: :49another point, been involved in cases where there was a final order issued, and there was a retain jurisdiction to address some potential future issue. I will be glad to take the laboring oar to quickly look into how that should be done to preserve the finality of the order, and, yet make clear that it comes back to the Court for that can be done. those issues, and I am sure that, THE COURT: Yeah. If my suggestion is not one that?s accepted [lndicatingz Phone ringing.1 MS. BARKER: Your Honor, I apologize, but I have to do the walk of shame, and that is completely my fault. THE COURT: No problem. MS. BARKER: If you keep talking, it was an oversight. I apologize. MR. BARBER: Your Honor, my View of this is, that the the issue with regard to the ongoing investigation in this case, is just that, an ongoing investigation. THE COURT: Yes. MR. BARBER: And the Court has resolved that issue finally at this point. While it?s still ongoing the records shall not be disclosed. If you know, then that?s mm then 50 ll: 11: ll: 11: 1 :50: ll: 11: 11: 11: ll: 1?50: ll 11: 11: 11: ll: 11: 11: 11: 11: ll: 50: 50: 50: 50: 50: :50: 50 50: 50: :511:06 . 1:that?s a completely different request, that's a completely different story. THE COURT: I agree, Mr. Barber, that's the way we?re going to leave it. And if there is a request on the part of Ms. Barker to revisit that issue, you can ask the Off the record. [lndication: Phone ringing.] [Off the record.] [Record resumes.] THE COURT: Let's go back on. We're going to proceed as Mr. Barber indicated, and if you feel a need to revisit that, let me know, we can set up a quick telephone conference. You can both appear by telephone to me in Eagle River, and we'll address that concern if necessary. Otherwise I am going to consider this matter to be concluded today, a final order for purposes of appeal, so that we?re not hindering anybody?s ability to move this case forward as quickly as possible. MS. BARKER: Yes, your Honor, and I apologize it?s my own fault that I was over there and I didn?t hear everything, but I I think the only thing I would be concerned about is if there was a suggestion that any requests need to be made, and I 51 5111: 11: 11: ll: 11: 11: ll: 11: ll: 11: 11: 11: 11: 11: 52: 51: 51: :51: 51: 51: :51: 51: :51: 52 52: ?52: 52: '52: E52don't think that, that is the case. THE COURT: No, Mr. Barber has acknowledged that. MS. BARKER: Thank you, your Honor. But I think that if we then can then craft the order appropriately so that it is final there will be immediate appeal rights to move things forward. And the pendency of fees does not render a merits decision, not final in my opinion, my understanding I have looked at this issue previously, and those are immediately appealable on the merits, despite the fact that there may be a fees claim. THE COURT: That was going to be my next question. MR. BARBER: That's my current recollection of what the case law says. I want to just confirm that in an abundance of caution, but I believe you're correct, that a final decision on the merits is immediately appealable and that?s separate from any subsequent fee issue. MS. BARKER: Yes, you honor, I think there are some reported appellate decisions where not realized that until it people have, unfortunately, was a bit too late, so. THE COURT: Well 52 52: ll: ll: ll: ll: 11 ll: 11: ll: 13.: ll: Ill: 11: ll: 11: 11: ll: 11: ll: 13.: ll: 11: 52: 52: :52: 52 :53: 53: 53: 53 53: :5354: 54: .54MR. BARBER: So, what I would THE COURT: There are a couple of issues that, perhaps, should be addressed in that regard, as they may be related to a potential appeal. Because, I don?t know whether to what degree whether, or to what degree, you would be receiving assistance from an appellate court on we on remand on with with regard to those issues. So, let me indicate this, the Court does not find that the Sheriff?s Department has arbitrarily, and capriciously, denied or delayed response to this request. And the Court for reasons stated does find the matter to be one that is exceptional, and that case law doesn?t provide necessarily an absolute guidance to the authority with respect to the situation that directly bears on victims and witnesses, such that I can?t find that the Department didn?t exercise appropriate consideration in applying a balancing test. My review disagrees with that analysis, their analysis, but I don?t find it to be one that would rise to a level that could authorize punitive damages. So, I am indicating that. And, I don't know, the Court, I think is required to award reasonable attorneys fees under subsection 2, and that would be the Court's 53 ii 11: ll 11 ll ll 13.: 11: ll: :55: ll 11: ll: ll: ll: 11: ll: 11: ll: 11: :56: 54: 54 55: :55: :55: :55: :55: :55: :55: 55: 55: 55: :55intention, and we could hold that open until some later date, and damages of not less than $100. And I don't know whether there is any argument that there has been particular damage here in excess of that fee, I don't know whether you?re making that request. I guess I could reserve a ruling on that until I see a fee request. But I think for purposes of appeal, if there is a remand for determination of fees and costs I want to take the punitive damages off the table today. MS. BARKER: I understand, your Honor. THE COURT: Or, at least let you review that question, either of you, with the Court of Appeals. MS. BARKER: Right. And I think that is an issue that can be separately excised from the fees claim. The motion that we would be bringing on fees, because it's it really also goes to the merits of the Court's decision regarding the release of the records. MR. BARBER: I can I mean, I have seen it done both ways in cases where a fee request is made afterwards. The last couple cases 1 have done with this, the request was made after remand when 54 13:56: 56: 56: :56: 56: 56: 56: 56: 56: :56: 56: '56everything was all done and everyone's rights were' fully decided. And that so, I don't know what w? I mean it's your case. MS. BARKER: Right. And, your Honor, I think it would make most sense, going to, I think another point the Court raised, that probably fees issue should be stayed pending appeal, because otherwise we might be briefing something for no reason, and I don?t want anyone to have to do that. THE COURT: Well, I think we?re all in agreement then. So, is is there anything else that either either party feels the Court did not address in its ruling, or anything else we need to take up before we adjourn this morning? MR. BARBER: Your Honor, I volunteer to draft the proposed writ. TEE COURT: All right, very well. MR. BARBER: Encapsulating the Court?s ruling. THE COURT: Thank you. You can send that under a five?day rule to Ms. Barker, and we'll see if we can have a stipulation as to its form. But I appreciate your offer to do that. MS. BARKER: Your Honor, just to clarify, again, with respect to the gag order, and 55 ll: 11: 11ll: 11: 11: ll: 11: 11: ll: 11: 11: ll: :58: 57: 57: 57: 57: 57: 57: :57: '57: 57: 57: 57: 57: 57: 57: 58: :58make sure we're all on the same page. I appreciate the Court had stated certain things that could be expressly mentioned publicly, the fact there was a ruling, that an order to release certain records subject to redaction. And I am assuming we can publically disclose that there is a gag order, so that people understand why we're not providing further information. THE COURT: That?s fine. MS. BARKER: Also, I would request that when we look at the sealed transcript, it occurs to me that up until the Court starts discussing the past investigation records, all this discussion of staff management planning, and so forth, that proceeded that, that really isn?t sensitive, I don't think. So, I would suggest that perhaps Counsel could agree once the transcript is prepared, or at least that certain portions be released. Or that, you know, the mm THE COURT: I agree. I made rulings on a number of matters today, outside of the ambit of what was contained in the internal investigation regarding And, really, I don't think that any comment made outside of that probably has any reason not to be disclosed here, except from the standpoint ll58: :58: 58: 58: 58: 58: 58: :58: 58: 58: 58: ?58: 59: 59: 59: 59: 59 59: 59: 59: 59: :59that I can tend to ramble, as my Court Reporter will freely acknowledge. And there may by some crossover in comments, it maybe gets hard to separate some of that. Let me just put the general order into place until you have a transcript, and I am assuming that one or both parties are requesting that today. MS. BARKER: Okay. THE COURT: So you'll have to talk to my court reporter when we're done. MS. BARKER: Okay. That?s fair. That makes sense; Perhaps though, we can at least agree, or state on the record, that it can be disclosed publicly that certain, what were characterized as preemployment records were ordered preperly withheld under the staff management planning language of If that's okay. And then 1 think there was also the dismissal of the or there was an order saying that the action should not continue against the LRES, and Lisa Charbarneau, I am assuming that can also be disclosed. THE COURT: Yes, to both matters. MS. BARKER: And with respect to that last matter, our w? I just wanted to clarify that our objection to that had simply been that we wanted 57 :12: l2: 12: 12: 12: 12: 12: 12: I2: 12: l2: l2: 12: .00: 59: 59: :59: 59: 59: 59: :59: 00: 00: 00: ?00: 00: DO: :00make sure we had the right custodian who had all of the records. And that being the case, I think that?s implicit in the Court?s finding. I just want to make sure that, that is, in fact, the basis on which that dismissalI?? THE COURT: That is the basis for the dismissal. MS. BARKER: In which case, frankly, we would w" I would voluntarily dismiss that party, you know, as well. I mean, that's ?w I just want to make clear that we?re opposing we're not opposing that if there was a finding. THE COURT: Thank you. MR. BARBER: In terms of the gag order, I guess I am in agreement in terms of the Court's rulings up until Exhibit subject to if there were any comments made ahead of time relating to that. I think thatjs separate than when we get the transcript, reviewing it, and determining what, you know, if there is going to be a subsequent dispute over whether all of it, or part of it should be MS. BARKER: That?s fine. We can hold off on that until THE COURT: Thank you. And I have to say, this matter, you 58 12OO: 00: DO: 08: Ol: 01: 01: :01: 01: 01: :01know, has been vigorously contested on both sides. Again, 1 credit the parties with the quality of the work that they have done here. But I really want to credit you both with your ability to play nice. You know, it?s refreshing to see quality lawyers who are opposed in a serious matter, who maintain respect for each other, and work cooperatively to try to figure out how best to get through these issues, and I compliment you both on that. All right, we?re adjourned them. Thank you. {Court in recess.] 59 STATE OF WISCONSIN SS: COUNTY OF VILAS l, Michelle M. Livingston, hereby certify that I am the official court reporter for the Circuit Court, Vilas County, Wisconsin, that I have carefully compared the forgoing 60 pages with my stenographic notes, and that the same is a true and correct transcript. Dated at Eagle River, Wisconsin, this 4th day of February, 2016. Mich/A nx?/?gmzm Michelle M. Official Reporter 6O