PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
June 13,
2000
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If
published, the official version will
appear in the bound volume of the Official
Reports.
A party may file
with
the Supreme Court a petition to review an adverse decision by the
Court of Appeals.
See
Wis. Stat.
§808.10
and Rule 809.62.
No. 98-362998-3629
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
I
State of Wisconsin ex rel. Milwaukee Police
Association, Bradley
DeBraska,
Petitioners-Respondents,
v.
Arthur Jones,
Chief of
Police, City of Milwaukee,
Respondent-Appellant.
APPEAL from an order of the circuit court for
Milwaukee
County: CHARLESF. KAHN, JR., Judge. Affirmed.
Before Wedemeyer, P.J., Schudson and Curley, JJ.
¶1. SCHUDSON, J.The City of Milwaukee and its Chief of
Police, Arthur
Jones (collectively, the "City"), appeal from the
circuit court order granting the
petition for writ of mandamus, filed by the Milwaukee Police
Association and its president,
Bradley DeBraska (collectively, the "MPA"). The
circuit court order compels
the City to produce its digital audio tape (DAT) recording of a
911 telephone call, pursuant
to the MPA's open records request.1
The City argues that its production of an analog audio tape
recording of the call satisfied the
MPA's open records request and, therefore, that the circuit court
erred in ordering it to
produce the DAT recording.
¶2. We conclude that the circuit court correctly
determined that, because of the
differences between a DAT and an analog recording, the City was
required to produce the
DAT recording for the MPA's examination and copying, in order to
comply with the MPA's
open records request. Accordingly, we affirm.
I. BACKGROUND
¶3. Although a number of factual disputes emerged at
the circuit court
hearings, the facts relevant to resolution of this appeal are
undisputed. On June 19, 1997,
the MPA faxed a request to Chief Jones and the Open Records
Division of the Milwaukee
Police Department for a "[c]opy of the 911 call emanating
from 3814 West Hemlock
Street, Milwaukee, Wisconsin ..., received on June 18, 1997 at
13:13:48
hours." The fax
specified that
the requested copy was to be "in its original
[form-]unaltered, unmodified and
otherwise uncensored in any fashion."
¶4. Responding to the request, Chief Jones provided an
analog tape recording
which, the court found, "was as understandable to the naked
adult human ear as the
original DAT tape," and was "substantially as audible
as the original DAT
information maintained on the DAT tape." Counsel for the
MPA, however, in an
October 7, 1997 letter, advised the Open Records Division that he
had submitted the tape to
an expert who informed him that "the best spectrographic and
waveform review and
enhancement should be conducted on the original 911
tape."3 Accordingly, counsel requested that
the Open
Records Division "allow [his] expert access to the ... 911
tape for the purpose of
non-destructive analysis and/or the making of a DAT and/or analog
copy."
¶5. After being advised by telephone that his October 7
request was denied,
MPA counsel, in an October 28, 1997 letter, requested a written
response, pursuant to Wis.
Stat. §19.35(4)(b) (1995-96),4
which provides, in part, that "[i]f an authority denies a
written request in whole or in
part, the requester shall receive from the authority a written
statement of the reasons for
denying the written request." In his October 28 letter,
counsel also reiterated and
explained his request, stating, in part:
The purpose of my request for access [to the
911 tape] is to
allow my expert to make a digital recording of the calls for the
purpose of conducting a
spectrographic and waveform review and enhancement of the
conversations. In order to
make this recording, my expert would simply unplug the cassette
recorder currently plugged
in to your 911 recorder, plug in his digital and professional
analog recorders and simply
transfer the audio information from one tape (the 911 tape) to
another tape. Nothing in this
process will cause any damage to the 911 tape, the 911 recorder,
or auxiliary equipment.
The recording process will be no more disruptive than the
disruption made when the
Milwaukee Police Department makes a recording of a 911 call using
its own recording
equipment.
¶6. By letter of November 4, 1997,
Chief Jones
denied the requested access for the MPA's expert. Chief Jones
maintained that, by providing
"a copy of the ... 911 transmission" as originally
requested, his department had
complied with the statutory requirement to provide "a copy
of the tape recording
substantially as audible as the original." See Wis.
Stat.
§19.35(1)(c).5
¶7. Challenging the basis for Chief Jones's denial, the
MPA petitioned for a writ
of mandamus on December 22, 1997. See Wis. Stat.
§19.37(1)(a).6 The
petition
stated, in part:
The reason given for [Chief Jones's] refusal
to permit
petitioners to inspect and copy the audio recording requested is
inadequate for the following
reasons:
a.[Chief Jones] has refused to allow inspection by the
petitioners' expert, in
violation of sec. 19.35(1), Wis. Stats., which provides that
"any requester has a right
to inspect any record." (Emphasis added).
b.The original 911 call was recorded digitally; the
recording provided to the
petitioners was in analog format. Thus, the petitioners did not
receive a copy of the
recording as required by sec. 19.35(1)(c)[,] Wis. Stats.
c.The recording provided to the petitioners, according to
the petitioners' expert,
"has suspicious record event anomalies", indicating
that the petitioners may not
have received the entire recording. Thus, it is not certain that
[Chief Jones] has provided the
petitioners with a copy of the entire record, as required by sec.
19.35(1)(c), Wis. Stats. The
only means of ascertaining the authenticity of the record is to
examine either the actual
recording or a digital copy of the recording.
Also on December 22, 1997, the circuit court
ordered
an alternative writ of mandamus.7
On January 12, 1998, Chief Jones filed a return to the writ and
moved to quash it.
¶8. The circuit court conducted extensive hearings
devoted, in substantial part,
to gaining a precise understanding of the differences between
analog and DAT recording
formats and whether it would be possible to generate a DAT copy
of the original DAT
recording created by the 911 system. On one of the hearing
dates, the court convened at the
Communications Bureau of the Milwaukee Police Department, where
the court, counsel for
the parties, the MPA's expert, and police personnel listened to
the original 911 DAT
recording as well as the analog copy provided in response to the
MPA's original request.
They also listened to another analog copy that was made during
that day's hearing. The
court also considered testimony from the MPA's expert, as well as
affidavits from both the
MPA's expert and a communication recording systems team leader
for Dictaphone, Inc., the
manufacturer of the 911 recording system.
¶9. The court concluded that Chief Jones, in providing
an analog copy, had
complied with the MPA's original request, consistent with Wis.
Stat. §19.35(1)(c)
which provides for "a right to receive ... a copy of the
tape recording substantially as
audible as the original." The court also found, however,
"that the Dictaphone
Prolog Guardian system used by the Milwaukee Police Department
[for its 911 system]
includes both mechanical and computer components and that the
machinery runs computer
programs within the [Prolog/Guardian system] machinery
itself" and, further,
"that the material produced as a result of the computer
program is the DAT
tape." The court found that "the DAT is a separate
record in addition to it being
an audio tape." The court ultimately concluded, therefore,
that Chief Jones had failed
to comply with what the court termed the MPA's "subsequently
enhanced"
request for access to the DAT recording, under Wis. Stat.
§19.36(4) which provides
that "the material used as input for a computer program or
the material produced as a
product of the computer program is subject to the right of
examination and
copying."8 Accordingly,
the
court then granted the petition for writ of mandamus but stayed
the order pending this
appeal.
II. DISCUSSION
¶10. The City argues that the circuit court erred
"by determining that
Chief Arthur Jones ... violated the open records law, when the
Chief had provided ... [an
analog] cassette tape copy of telephone calls captured on the
Milwaukee Police Department's
911 recording system, which were [sic] substantially as audible
as the original audio
recordings." We, like the circuit court, acknowledge that
under Wis. Stat.
§19.35(1)(c), Chief Jones, by providing an analog copy,
complied with the MPA's
original request. We also agree with the circuit court, however,
that under Wis. Stat.
§19.36(4), production of the analog copy did not satisfy the
MPA's
"subsequently enhanced" request for "examination
and copying" of
the original.
¶11. Where a circuit court, determining a petition for
writ of mandamas, has
interpreted Wisconsin's open records law, see Wis. Stat.
§§19.31
through 19.39, and has applied that law to undisputed facts, we
review the circuit court's
decision de novo. See State ex rel. Schultz v.
Wellens, 208
Wis.2d 574, 576, 561 N.W.2d 775 (Ct. App. 1997). We do so ever
mindful of the
legislature's declaration of policy that "[Wis. Stat.
§§]19.32 to 19.37 shall
be construed in every instance with a presumption of
complete public access,
consistent with the conduct of governmental business."
See Wis. Stat.
§19.31 (emphasis added).
¶12. Much of the City's argument concentrates on
whether the analog copy it
produced was "substantially as audible as the original"
and, therefore, in
compliance with the MPA's request under Wis. Stat.
§19.35(1)(c). That, however, is
not the issue on appeal. It is undisputed that, as the circuit
court said, the analog copy was
"substantially as audible as the original" and,
therefore, under
§19.35(1)(c), it satisfied the MPA's original request.
¶13. The City does not challenge the circuit court's
determination that the
MPA counsel's correspondence with the Open Records Division
constituted a
"subsequently enhanced" request of a different nature-a
request for access to the
original DAT recording-precisely because the analog copy could
not be analyzed to gain the
information that apparently was central to the MPA's concern.
Thus, the issue on appeal is
not whether Chief Jones's production of the analog copy complied
with the MPA's original
request. The issue is whether the analog copy satisfied the
MPA's "subsequently
enhanced" request. We, like the circuit court, conclude
that it did not.
¶14. On appeal, the City does not challenge the circuit
court's factual findings
regarding the differences between the analog and DAT formats.
Moreover, the City does not
dispute the MPA's contention that its expert, with a DAT copy,
would be able to detect and
enhance background voices, which would not be possible using only
an analog copy.
Instead, the City complains that "the Milwaukee Police
Department does not have the
equipment necessary to make a digital `dub' of a digital
tape," and that "[t]he
open records law does not require a records custodian to offer a
variety of mechanisms or
media for providing copies of records." Once again,
however, the City is arguing a
nonissue.
¶15. The circuit court acknowledged that the MPA's
expert and Dictaphone's
communication recording systems team leader differed as to
whether a digital copy could be
made from the original DAT recording. But, as the court
explained, that was a factual
dispute with no bearing on the court's legal decision, because
the MPA's expert maintained
that he would be able to make the needed copy.
[The MPA would] merely [have] to have its
agent Mr. Cain
come to a conference room at the location of Chief Jones's choice
and take the DAT tape
which is now being preserved and otherwise in the normal course
of business would be
destroyed through reuse and simply drop that tape into Mr. Cain's
own portable machine and
Mr. Cain can try to run his copy as he claims he can do.
Further, the court specifically stated,
"The [MPA]
is entitled to the right of copying, but the Department is not
required to utilize any equipment
which is special equipment for the purpose of copying."
¶16. When the City finally focuses on Wis. Stat.
§19.36(4), it takes an
untenable position. The City maintains that the statute
"establishes that record
requesters have no right to copies of computer programs, but
rather may request the
information which is inputted into a computer for
processing." (Emphasis
added.) That statement, however, is misleading; it ignores the
remainder of the content of
§19.36(4).
¶17. As already noted, Wis. Stat. §19.36(4)
provides that "the
material used as input for a computer program or the material
produced as a product of
the computer program is subject to the right of examination and
copying."
(Emphasis added.) Neither the City nor the MPA suggests that the
statute is ambiguous in
any way. In considering the provisions of the open records law
we, as always, "must
interpret clear and unambiguous statutes to effectuate the
`express intention of the legislature
by giving the language its ordinary meaning.'"
Schultz, 208 Wis.2d
at 578. Clearly and unambiguously, the statute allows for
exactly what the MPA has
requested-access to the source "material" and the
opportunity for
"examination and copying."
¶18. Nevertheless, the City argues that "the
material used as input"
under Wis. Stat. §19.36(4) is "sound waves made by the
oral communications of
a caller to either telecommunicators or dispatchers who worked
with the ... 911
system." Therefore, the City continues, because the
"oral communication was
not originally communicated in any type of digital format"
and the "information
was communicated through the use of the human mouth, tongue,
vocal cords, and other
`hardware' of the human body which is used for speech," the
DAT recording really is
not the source material subject to examination under
§19.36(4). However, to accept
this argument, a tortured one at best, would be to violate the
spirit as well as the letter of the
open records law.
¶19. "There is a presumption that the public
has the right to
inspect public records unless an exception is found."
State ex rel. Richards v.
Foust, 165 Wis.2d 429, 433, 477 N.W.2d 608 (1991). Under
Wis. Stat.
§19.32(2):
"Record" means any material
on which
written, drawn, printed, spoken, visual or electromagnetic
information is recorded or
preserved, regardless of physical form or characteristics,
which has been created
or is being kept by an authority. "Record" includes,
but is not limited to,
handwritten, typed or printed pages, maps, charts, photographs,
films, recordings, tapes
(including computer tapes), computer printouts and optical
disks.
(Emphases added.)9 As technology advances and
computer systems
are refined, it would be sadly ironic if courts could disable
Wisconsin's open records law by
limiting its reach. See Schultz, 208 Wis.2d at 578
("[W]e must
construe statutes to avoid absurd results."). After all, as
modern society rapidly adds
to its sophisticated methods of data collection, it inevitably
filters "the human mouth,
tongue, [and] vocal cords" through computer systems. A
potent open records law must
remain open to technological advances so that its statutory terms
remain true to the law's
intent.
By the Court.-Order affirmed.
Recommended for publication in the official reports.
1 The circuit court order also stays the order and holds open the
determination of attorneys'
fees, pending appeal.
2 According to the petition for writ of mandamus, the 911 call
came from the home of a
Milwaukee Police Department deputy inspector. The petition
stated:
No one was on the telephone line but, in the
background, the 911
operator could hear a man and woman in a very heated argument.
The woman was
screaming that she was going to shoot the man. The caller
eventually got on the line and
identified himself ... and stated that his wife, [the] [d]eputy
[i]nspector ..., had pulled a gun
on him.
3 According to the MPA's petition for writ of mandamus and an
accompanying affidavit, the
MPA had submitted the tape for expert analysis to Steve Cain, a
forensic audio/video tape
examiner, "in order to enhance any background voices and to
determine whether the
tape had been altered or edited." The petition further
explained that Cain had advised
that "the background voice data was degraded, both because
of it being a copy and
because of overlapping, simultaneous speech," and that the
tape had "some
suspicious record event anomalies."
4 All references to the Wisconsin Statutes are to the 1995-96
version unless otherwise
noted.
5 Wisconsin Stat. §19.35(1)(c), in full, provides:
Except as otherwise provided by law, any requester has a right
to receive from an
authority having custody of a record which is in the form of a
comprehensible audio tape
recording a copy of the tape recording substantially as audible
as the original. The authority
may instead provide a transcript of the recording to the
requester if he or she
requests.
6 Wisconsin Stat. §19.37 provides, in relevant part:
Enforcement and penalties. (1)Mandamus.
If an
authority withholds a record or a part of a record or delays
granting access to a record or
part of a record after a written request for disclosure is made
....
(a)The requester may bring an action for mandamus asking a
court to order release
of the record. The court may permit the parties or their
attorneys to have access to the
requested record under restrictions or protective orders as the
court deems
appropriate.
7 The alternative writ of mandamus was issued by Judge Victor
Manian. Black's Law
Dictionary (7th ed. 1999), defining "mandamus" as
"[a] writ issued by a
superior court to compel a lower court or a government officer to
perform mandatory or
purely ministerial duties correctly," id. at 973,
goes on to define
"alternative mandamus" as "[a] mandamus issued
upon the first application
for relief, commanding the defendant either to perform the act
demanded or to appear before
the court at a specified time to show cause for not performing
it,"
id.
8 Wisconsin Stat. §19.36(4), in full, provides:
Computer programs and data. A computer program,
as defined
in s.16.971(4)(c), is not subject to examination or copying under
s.19.35(1), but the material
used as input for a computer program or the material produced as
a product of the computer
program is subject to the right of examination and copying,
except as otherwise provided in
s.19.35 or this section.
9 The City does not dispute the MPA's summary of the specific
technology involved in this
case. The MPA writes:
The 911-call in question was recorded on a
computer tape.
The system used by the MPD to record 911-calls is a Labtec
Computer System LCS 1000.
It has a hard drive on which 911-calls are stored. The hard
drive is the "initial source
of recorded medium." It has software. The computer is used
to search DAT tapes for
specific 911-calls. The DAT tape contains encoding which allows
the search of the tape for
conversations made on a particular date and time. There is
nothing in the record to indicate
that the analog tape has the same encoding.
A digital recording converts sound waves into numbers and
stores them for later
reproduction. The digital data is "expressed in binary
notation (a series of `on-off'
conditions that represent the digits `1' and `0')." The
same "binary
notation" used in DAT recordings is also used by computers
to store information. The
DAT at issue in this case contains data not found on the analog
version, namely[:] the
digitized binary notations similar to those found on computer
tapes. The digital recording
contained on the DAT tape in question is therefore appropriately
classified as a
"computer tape" and analogous to the tapes commonly
used in
"Zip-drives" to back-up computer data.
(Record references and citations
omitted.) Thus, the
MPA maintains, "[a]n analog recording (such as that provided
in this case) of a DAT
recording does not contain the same electronic `signals' as the
original DAT
recording."
Return to wisbar.org
Wisconsin Court of Appeals
