MADISON, Wis. (AP) - The Wisconsin Supreme Court rejected Democrats’ efforts Wednesday to force the release of training videos featuring Republican Brad Schimel before he became attorney general, finding that he didn’t say anything inappropriate in them, as Democrats initially alleged, and that releasing them could hurt prosecutors and crime victims.
The recordings don’t reveal any misconduct and releasing them would reveal prosecutor strategies as well as re-traumatize victims in a high-profile sexual extortion case, the court’s conservative majority ruled in a 5-2 decision.
The state Democratic Party asked the state Department of Justice in 2014 to release videos of presentations on sexual predators that Schimel gave in 2009 and 2013, when he was the Waukesha County district attorney. The 2009 video shows Schimel discussing prosecution strategies. In the 2013 video Schimel recounts a case in which a Waukesha County high school student posed as a woman online, obtained graphic pictures from male classmates and blackmailed them into sexual acts.
The Democrats’ demanded the videos during the height of Schimel’s attorney general campaign, alleging they showed him making ethnic and racial slurs as well as sexist comments.
The DOJ refused to hand over the videos, arguing that they reveal prosecutorial strategies and could re-traumatize the blackmail victims. That stance prompted Democrats to sue. A Madison judge who viewed the videos found that Schimel didn’t make any inappropriate remarks and that no victims were identified by name. Both the judge and a state appeals court ruled the videos should be released. The DOJ allowed the Democrats’ attorney to view the videos, after which he dropped the misconduct claims, according to court documents.
The state Supreme Court sided with DOJ, ruling the videos don’t show any official misconduct and the lawsuit suggests a partisan purpose behind the request.
Writing for the majority, Justice Rebecca Bradley likened the 2009 video to prosecutors’ case files, which are exempt from Wisconsin’s open records law. The video clearly contains discussions of tactics and could be widely disseminated online, helping criminals avoid detection, the court found.
Bradley acknowledged the 2013 video doesn’t name the victims but wrote that someone could figure out who they are from context. That could re-traumatize them in violation of a state constitutional amendment that requires the state to treat crime victims with dignity, she wrote.
“The denial of public access occurs only in exceptional cases. This case presents one of those exceptional situations,” Bradley wrote. “The two videos requested here do not contain any evidence of official misconduct. Our review independently demonstrates that the reasons proffered (for withholding the videos) are sufficient and supported by the facts in this case.”
The court’s two liberal-leaning justices, Shirley Abrahamson and Ann Walsh Bradley, dissented. Abrahamson wrote that the court should have ordered the videos released with sensitive information redacted.
She chastised the majority for suggesting that the request was politically motivated, noting that the open records law doesn’t require requestors to explain motivation. She added the ruling offers no limits on when protecting victims trumps disclosure.
“What has the majority achieved with its opinion grounded in speculative, abstract, and unsubstantiated fears? The answer for me is: A dimming of the light on public oversight of government, especially in matters pertaining to criminal justice.”
Democratic Party spokesman Brandon Weathersby said in an email that the party was disappointed that the court prevented Republican leaders from being held accountable. He didn’t immediately respond to a follow-up message asking why the party continued to pursue the videos after conceding that they didn’t show any misconduct.
Bill Lueders, president of the Wisconsin Freedom of Information Council, also called the ruling disappointing but noted it appears to deal with a very specific set of facts and shouldn’t change how record requests are processed generally. He lamented that the majority found it necessary to suggest that the request was politically motivated, since the reasons for a request are irrelevant under the law.
“Members of both major parties regularly use the law to dig up dirt on their opponents,” Lueders said. “This should not have been a factor in the court’s analysis.”
Schimel issued a statement saying that even though he would have benefited politically from the videos’ release, the court made the right decision to protect victims and keep prosecutors’ techniques confidential.
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