US Editorial: A risky secrecy

Brookfield police should follow the advice of the state attorney general's office and give citizens more access to public records.

From the Journal Sentinel

Posted: Dec. 17, 2007

Not following the advice of your attorney often can get you in trouble. The Brookfield Police Department should keep that in mind and reconsider its decision to ignore the advice of state attorneys on keeping certain police records from public eyes.

As a state official noted, state law presumes that people should have as much access as possible to public records and that only in exceptional cases may access be denied. That includes the records of the Police Department, which should open its files to the public, with obvious exceptions, generally involving informants and ongoing investigations.

The department has a policy of refusing to release police files that have been turned over to a prosecuting attorney. It argues that a 1994 unpublished appeals court decision that keeps prosecuting attorneys' files secret should be applied to police case files that are turned over to the prosecuting attorney.

But last month, in response to a letter from Assistant Police Chief Dean Collins, Assistant Attorney General Mary E. Burke advised the city that the department's policy of flatly refusing to release police files that have been forwarded to a prosecuting attorney is not permitted under open records law.

The ruling, she said, "applies only to records requests for the prosecutor's case file - not the Police Department's case file."

Nevertheless, in a letter responding to Burke's advice, Collins said the department would continue its policy. While Burke's advice isn't legally binding, not following it runs the risk of litigation, according to Robert Dreps, a Madison attorney who works on open records issues for several Wisconsin newspapers, including the Journal Sentinel.

"The attorney general's opinion does not have the force of law," he told the Journal Sentinel's Amy Rinard. "But if they don't follow it, that could put them at greater risk of being found arbitrary and capricious in denying a request" (www.jsonline.com/694473).

That means taxpayers could end up footing the bill for the department's refusal to follow sound legal advice. In the interest of open government and lower government costs, the department should change its policy.

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