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  • WisBar News
    August 10, 2015

    Court Says District Attorney Lacks Standing to Block Public Records Request

    Joe Forward

    Aug. 10, 2015 – A state appeals court has ruled that Vilas County District Attorney Albert Moustakis did not have standing, under Wisconsin public records law, to challenge the public release of records that pertained to complaints against him.

    The Lakeland Times, a Northern Wisconsin newspaper, in 2013 filed a public records request with the Wisconsin Department of Justice (DOJ), the custodian of such records.

    The request called for records relating to investigations or complaints against Moustakis that ended without any action against him, and communications between the DOJ and Moustakis since 1995, the year Moustakis first took office as county district attorney.

    DOJ’s public records custodian, attorney Kevin Potter, approved the request and informed Moustakis that those records would be released to The Lakeland Times.

    Moustakis – who says the records concerned allegations by a former political rival that were unsubstantiated and did not lead to any charges – sought an order to block DOJ from releasing the records under Wis. Stat. section 19.356(4).

    That provision says a “record subject” may temporarily restrain an “authority” from providing records requested by commencing an action within 10 days of receiving notice under section 19.356(2)(a), which requires notice with regard to certain records.

    For instance, notice is required if an authority plans to release records “containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer.”

    However, in Moustakis v. State of Wisconsin Department of Justice, 2014AP1853 (July 31, 2015), the District III Appeals Court ruled that Moustakis was not entitled to notice, and thus lacked standing, because he was not considered an “employee.”

    DOJ had argued successfully in circuit court that notice to Moustakis was a “courtesy” and DOJ was not required to give him notice since there’s an exception, under section 19.32(1bg), for individuals “holding local public office or a state public office.”

    The appeals court agreed, noting that county district attorneys are expressly designated as “state public officials” and thus not entitled to notice of a public records release.

    “We conclude the records at issue in this case cannot qualify under § 19.356(2)(a)1. because Moustakis is not an ‘employee,’ and therefore the records do not contain information ‘relating to an employee,’” wrote Judge Thomas Hruz.

    “We reach this conclusion because district attorneys are specifically excluded from the definition of ‘employee’ under Wis. Stat. § 19.32(1bg).”

    Moustakis conceded that he is a state public official but argued that he was still entitled to notice of the records release because he is “employed by an employer other than an authority.”

    Section 19.356(2)(a) also requires notice to a record subject concerning release of “[a] record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information.”

    Moustakis argued that he is employed by the State of Wisconsin, but the State of Wisconsin is not specifically identified as an “authority” under section 19.32(1), which defines the record custodians that are considered “authorities.”

    “Moustakis’s contrived argument fails to account for the straightforward notion that he both holds the state office of district attorney and is an employee of that office; the two capacities are not mutually exclusive,” Judge Hruz wrote.

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