MADISON, Wis. (AP) - The Wisconsin Supreme Court is set to decide whether the state Justice Department must turn over to Democrats training videos featuring Republican Attorney General Brad Schimel - a ruling that could redefine government policies on releasing information.
The ruling, due out Wednesday morning, could lay out how much latitude record custodians deserve when applying the so-called balancing test, which allows them to withhold certain information they believe would harm the public interest. The ruling could reshape what factors record custodians must consider when applying the test and thus how much information the media, political campaigns and other interested parties can obtain.
The state Democratic Party sued in 2014 to obtain video recordings of two presentations on sexual predators that Schimel gave in 2009 and 2013. The party believes Schimel made inappropriate remarks during the talks but has offered no proof. Schimel, who was the Waukesha County district attorney at the time of the DOJ-sponsored seminars, has denied the allegations.
The Democrats filed the lawsuit weeks before Schimel defeated Democrat Susan Happ in the 2014 November elections to become attorney general.
The 2009 video was made during a presentation on internet sexual predators. The 2013 presentation centered on interacting with victims of sensitive crimes. In that presentation, Schimel details a well-known case in which a Waukesha County high school student posed as a woman online, obtained graphic pictures from his male classmates and blackmailed them into sexual acts.
The DOJ and Schimel have portrayed themselves as beacons of transparency. But the agency has refused to turn over the videos, arguing they would reveal law enforcement tactics and re-traumatize victims. None are named in the videos but DOJ attorneys fear they could be identified through other details.
“(The DOJ is) asking this Court to eviscerate … the very public records law that DOJ feigns to treasure and protect,” Democrats’ attorney Mike Bauer wrote in a brief. “It attempts to do so by putting its heavy thumb on one side of the scale when performing the well-known balancing test to determine whether a record should be made public.”
Solicitor General Misha Tseytlin countered in his own brief that releasing the videos would help sexual predators evade the law, defeat the public interest in protecting victims and have a chilling effect on future training if presenters fear their information will go public.
“The Department recognizes that there are certain, rare situations where disclosure of a record would cause grave harm to the public interest, even after taking into account the Open Records Law’s extremely laudable purposes,” Tseytlin wrote.
Both a Madison judge and a state appellate court have ruled that the DOJ should release the videos. Conservative justices control the Supreme Court, however, which bodes well for the DOJ.
Bill Lueders, president of the Wisconsin Freedom of Information Council, said Monday it would be good if the Supreme Court agrees the videos should be released with sensitive details redacted.
“Otherwise,” Lueders wrote, “it will continue to look as though public officials in this case have something to hide.”
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