Date: 05-31-2016

Case Style: Albert D. Moustakis v. State of Wisconsin Department of Justice

Case Number: 2014AP1853

Judge: Patience D. Roggensack

Court: SUPREME COURT OF WISCONSIN

Plaintiff's Attorney: Brian Keenan, assistant attorney general

Defendant's Attorney: Benjamin J. Krautkramer , Scott A. Swid

Description: This is a review of a published decision of the court of appeals, Moustakis v.
Wisconsin Department of Justice, 2015 WI App 63, 364
Wis. 2d 740, 869 N.W.2d 788, affirming an order of the Circuit
Court for Lincoln County, Jay R. Tlusty, Judge.
¶2 The circuit court dismissed an action brought by Vilas
County District Attorney Albert Moustakis under Wis. Stat.
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§ 19.356(4) (2013-14)1 seeking to restrain the Wisconsin
Department of Justice from releasing records pertaining to
Moustakis in response to a public records request by The
Lakeland Times, a newspaper located in Minocqua, Wisconsin. The
court of appeals affirmed the order of the circuit court.
¶3 This review raises a single question that was well
stated by the court of appeals: Is a district attorney an
"employee" as that term is used in Wis. Stat. § 19.356(2)(a)1.
and defined in § 19.32(1bg) such that the district attorney may
maintain an action for notice and pre-release judicial review of
records under § 19.356(4)?2
1 All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.
2 Moustakis v. Wis. DOJ, 2015 WI App 63, ¶11, 364 Wis. 2d 740, 869 N.W.2d 788.
The parties and the circuit court and court of appeals framed the issue presented as a question of standing, that is, does Moustakis have standing to bring his action? Phrasing the issue as one of standing is asking, as we do, whether Moustakis falls within the ambit of the provisions of the public records law granting a record subject notice of the decision of an authority to provide a requester access to records and prerelease judicial review of the decision to provide access. See William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221, 236 (1988) ("'When a plaintiff seeks standing on the basis that an interest is protected by statute, the question whether that interest is legally protected for standing purposes is the same as the question whether plaintiff (assuming his or her factual allegations are true) has a claim on the merits.'") (quoting Stephen G. Breyer & Richard B. Stewart, Administrative Law and Regulatory Policy: Problems, Text, and Cases 1094 (2d ed. 1985) (footnote omitted)).
(continued)
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¶4 To answer this question, we take the same approach as
the court of appeals and the parties, namely, we analyze the
interconnecting provisions of the public records law, Wis. Stat.
§§ 19.21-.39, and apply them to the fact situation at hand. The
Wisconsin public records law is not always easy to read or
decipher. Multiple provisions of the public records law cross
reference each other. Nevertheless, by analyzing the public
records law step by step, we can resolve the present case. To
enable easier reference to the text of the public records law as
we discuss the cross-references, we have attached the text of
the relevant statutes and constitutional provisions as Appendix
A.
¶5 After analyzing the public records law and the
parties' arguments, we conclude, as did the court of appeals,
that a district attorney holds a state public office and is not
an "employee" within the meaning of Wis. Stat. §§ 19.32(1bg) and
19.356(2)(a)1. Because the records at issue do not fall within
In other words, whether Moustakis fits within the group of individuals to whom the public records law grants notice and an opportunity for pre-release judicial review is a matter of statutory interpretation. Standing and statutory interpretation are distinct and should not be conflated. In the instant case, it is easier to frame the issue as a matter of statutory interpretation rather than as a matter of standing. See Wisconsin's Envt'l Decade, Inc. v. Pub. Serv. Comm'n of Wis., 69 Wis. 2d 1, 11, 230 N.W.2d 243 (1975) (describing cases resolved "on the notion that the statute relied upon by the person seeking review did not give legal recognition to the interest asserted" as "rest[ing] upon statutory interpretation rather than the law of standing itself.").
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the narrow exception to the general rule that a "record subject"
is not entitled to notice or pre-release judicial review of the
decision of an authority to provide access to records pertaining
to that record subject, Moustakis may not maintain an action
under Wis. Stat. § 19.356(4) to restrain the Department of
Justice from providing The Lakeland Times access to the
requested records.
¶6 Accordingly, we affirm the decision of the court of
appeals and the circuit court's order dismissing Moustakis's
action under the Wisconsin public records law.
¶7 We remand the cause to the circuit court for further
proceedings consistent with this opinion to consider Moustakis's
amended complaint alleging two additional causes of action, the
first seeking a writ of mandamus and the second asserting a
challenge to the constitutionality of Wis. Stat. § 19.356. The
circuit court stayed proceedings on these two causes of action,3
and these two causes of action are not at issue in this court.4
I
¶8 For purposes of this review, the facts and procedural
history are not in dispute.
¶9 In July 2013, The Lakeland Times sent a public records
request to the Department of Justice regarding Moustakis. The
3 This court granted Moustakis's petition for review but did not grant Moustakis's petition that the court accept an original action to decide the second and third causes of action.
4 Moustakis, 364 Wis. 2d 740, ¶7 n.5.
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request sought records of any "complaints or investigations
regarding Vilas County District Attorney Al Moustakis" and
records "regarding any investigation of [Moustakis's] conduct or
handling of cases while district attorney." The request also
sought "information related to complaints and investigations
regarding Mr. Moustakis that were completed or ended without any
action taken against him[,]" as well as "any communications
between Mr. Moustakis and [Department of Justice] since he took
office in 1995."
¶10 The public records custodian of the Department of
Justice referred the request to the Department's Division of
Criminal Investigation and Division of Legal Services to prepare
a response. The staff collected and reviewed the responsive
documents and made numerous redactions. The public records
custodian approved the proposed response for release. The
response contained records relating to complaints against
Moustakis that the Department of Justice ultimately found to be
unsubstantiated.
¶11 The public records custodian at the Department of
Justice left Moustakis a telephone message advising him that the
Department would be releasing records responsive to The Lakeland
Times' public records request. The Department also mailed a
copy of the approved response to Moustakis.
¶12 Moustakis received the redacted records from the
Department of Justice on or about March 5, 2014, more than seven
months after The Lakeland Times made its public records request.
The Lakeland Times did not receive the redacted records at the
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same time that Moustakis received them. The Department asserts
that it provided Moustakis with notice and a copy of the
response as a professional courtesy and that it was not required
to do so by law.5
¶13 Moustakis notified the Department of Justice (through
his counsel) of his intent to seek judicial review of the
Department's decision to release the requested records. On
March 10, 2014, Moustakis filed this action under Wis. Stat.
§ 19.356(4) to enjoin the Department from releasing the records
at issue.
¶14 The Department moved to dismiss the action, arguing,
as we explained above, that Moustakis was not an "employee" as
that term is defined in Wis. Stat. § 19.32(1bg) and that, as a
result, Moustakis may not maintain an action under § 19.356(4)
to restrain the Department from providing access to the records
relating to him that are responsive to The Lakeland Times'
public records request.
5 The Department of Justice appears to argue it was not required to provide notice to Moustakis under Wis. Stat. § 19.356(2)(a)1. Other statutory notice requirements exist. See Wis. Stat. § 19.356(9)(a)-(b). Moustakis relies on Wis. Stat. § 19.356(9)(a) and (b) to bolster his interpretation of Wis. Stat. § 19.356(2)(a)1. and the definition of "employee" in Wis. Stat. § 19.32(1bg). He sometimes seems to assert that he should have received notice under Wis. Stat. § 19.356(9)(a) and (b) and an opportunity to augment the record. Moustakis's basic and repeated position, however, is that he does not want release of the records at all. We address these claims more fully in ¶¶50-62.
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¶15 The circuit court dismissed Moustakis's action on July
1, 2014, about one year after The Lakeland Times made its public
records request to the Department of Justice, concluding that
Moustakis was not an employee as defined in Wis. Stat.
§ 19.32(1bg) and as a result may not maintain an action under
§ 19.356(4). The court of appeals affirmed the circuit court's
order dismissing the action. Moustakis sought review in this
court.
II
¶16 The interpretation and application of statutes present
questions of law that this court determines independently of the
circuit court and court of appeals while benefiting from the
analyses of these courts. Journal Times v. Police & Fire
Comm'rs Bd., 2015 WI 56, ¶42, 362 Wis. 2d 577, 866 N.W.2d 563.
¶17 To determine the meaning of a statute, we look to the
language of the statute. Schill v. Wis. Rapids Sch. Dist., 2010
WI 86, ¶49, 327 Wis. 2d 572, 786 N.W.2d 177. "Each word should
be looked at so as not to render any portion of the statute
superfluous." Hubbard v. Messer, 2003 WI 145, ¶9, 267
Wis. 2d 92, 673 N.W.2d 676 (note with citations omitted).
¶18 "[A]scertaining plain meaning requires us to do more
than focus on a single, isolated sentence or portion of a
sentence." Teschendorf v. State Farm Ins. Cos., 2006 WI 89,
¶12, 293 Wis. 2d 123, 717 N.W.2d 258 (citation and quotation
marks omitted). Instead, "[w]e consider the meaning of words in
the context in which they appear." Force ex rel. Welcenbach v.
Am. Family Mut. Ins. Co., 2014 WI 82, ¶30, 356 Wis. 2d 582, 850
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N.W.2d 866. "We favor an interpretation that fulfills the
statute's purpose." State v. Hanson, 2012 WI 4, ¶17, 338
Wis. 2d 243, 808 N.W.2d 390 (citation omitted).
III
¶19 We adopt the organization, statutory analysis,
reasoning, and, at times, language of the decision of the court
of appeals in our interpretation of the public records law and
application of the law to the parties' arguments. The court of
appeals organized its analysis of the statutes as follows, and
so do we:
A. The public records law embodies the fundamental concept
in Wisconsin of transparent government. This concept
guides our interpretation of the provisions of the public
record law.6
B. The general rule is that no "authority" is required to
notify a record subject prior to providing to a requester
access to a record containing information pertaining to
that record subject. Wis. Stat. § 19.356(1).
Furthermore, "no person is entitled to judicial review of
the decision of an authority to provide a requester with
access to a record." § 19.356(1). The public records
law contains an exception to this general rule for three
narrow categories of records. § 19.356(2)(a)1.-3. If
the record at issue falls in one of these three narrow
6 See infra, ¶¶21-23; Moustakis, 364 Wis. 2d 740, ¶¶12-13.
No. 2014AP1853
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categories of records, a "record subject" may maintain an
action under § 19.356(4) seeking a court order to
restrain the authority from providing access to the
requested record.7
C. The only one of these three exceptions that Moustakis
claims pertains to him is the one set forth in Wis. Stat.
§ 19.356(2)(a)1. This provision applies to certain
records pertaining to an "employee." The application of
§ 19.356(2)(a)1. to Moustakis's records turns on whether
Moustakis is an "employee," as defined in § 19.32(1bg).
1. Moustakis is not an employee within the first part
of the definition of "employee" in Wis. Stat.
§ 19.32(1bg).8 He holds the elective office of
Vilas County District Attorney.
2. Moustakis is not an employee within the second part
of the definition of "employee" in Wis. Stat.
§ 19.32(1bg). Moustakis, as Vilas County District
Attorney, is not "employed by an employer other than
an authority."9
D. Interpreting the definition of "employee" in the public
records law as excluding a state public office does not
7 See infra, ¶¶24-28; Moustakis, 364 Wis. 2d 740, ¶¶13-14.
8 See infra, ¶¶34-36; Moustakis, 364 Wis. 2d 740, ¶¶15-17.
9 See infra, ¶¶37-49; Moustakis, 364 Wis. 2d 740, ¶¶18-20.
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render the term "employee" used in Wis. Stat.
§ 19.356(9)(a) mere surplusage.10
¶20 Thus, because the records at issue do not fall within
the narrow category described in Wis. Stat. § 19.356(2)(a)1.,
Moustakis may not maintain an action under § 19.356(4) seeking a
court order restraining the Department of Justice from providing
access to the requested record.11
A
¶21 We begin with the following legislative declaration:
"Except as otherwise provided by law, any requester has a right
to inspect any record." Wis. Stat. § 19.35(1)(a).
¶22 The legislature has explicitly stated the public
policy as follows: "[I]t is . . . the public policy of this
state that all persons are entitled to the greatest possible
information regarding the affairs of government and the official
acts of those officers and employees who represent them." Wis.
Stat. § 19.31.
¶23 In light of this policy, the legislature has stated
that the public records law "shall be construed in every
instance with a presumption of complete public access,
consistent with the conduct of governmental business. The
denial of public access generally is contrary to the public
10 See infra, ¶¶50-59; Moustakis, 364 Wis. 2d 740, ¶¶21-23.
11 See infra, ¶¶60-61; Moustakis, 364 Wis. 2d 740, ¶¶13-15.
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interest, and only in an exceptional case may access be denied."
Wis. Stat. § 19.31.12
B
¶24 Under the public records law, the general rule is that
a record subject is not entitled to notice prior to an
"authority" granting a requester access to a record containing
information pertaining to the "record subject." Wis. Stat.
§ 19.356(1).13 Furthermore, subject to three narrow exceptions,
"no person is entitled to judicial review of the decision of an
authority to provide a requester with access to a record."
§ 19.356(1).
12 Moustakis argues that public policy does not favor the release of the uncorroborated or untrue accusations contained in the records at issue. The public policy declared by the legislature, however, favors disclosure as a general rule, rather than nondisclosure.
The parties acknowledge that the Department of Justice sought to balance "the public interest in disclosure against the public interest in non-disclosure" when deciding whether to release the records at issue and redacted materials from the record. See Milwaukee Journal Sentinel v. Wis. Dep't of Admin., 2009 WI 79, ¶56, 319 Wis. 2d 439, 768 N.W.2d 700 (discussing the balancing test). Because we conclude that Moustakis is not entitled to pre-release judicial review of the records at issue and we do not have the records at issue (that is, we have neither the original records nor the redacted records), we do not review the Department's decision to release the redacted records.
13 Some records that are subject to disclosure contain "personally identifiable information" about certain individuals. These individuals are known as "record subjects." Wis. Stat. § 19.32(2g).
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¶25 The legislature excluded three narrow categories of
records from these general rules that no authority is required
to notify a record subject prior to providing to a requester
access to a record containing information pertaining to that
record subject and that no person is entitled to judicial review
of the decision of an authority to provide a requester with
access to a record. See Wis. Stat. § 19.356(2)(a)1.-3.
¶26 An "authority"14 intending to release records falling
within one of these three narrow categories of records must
provide notice to the record subject before releasing the
records and the record subject has the opportunity to seek pre
release judicial review. Wis. Stat. §§ 19.356(2)(a), 19.356(4).
The record subject may commence an action (within the time
specified in the public records law) seeking a court order "to
14 An "authority" is defined in Wis. Stat. § 19.32(1) as follows:
"Authority" means any of the following having custody of a record: a state or local office, elective official, agency, board, commission, committee, council, department or public body corporate and politic created by the constitution or by any law, ordinance, rule or order; a governmental or quasigovernmental corporation except for the Bradley center sports and entertainment corporation; a special purpose district; any court of law; the assembly or senate; a nonprofit corporation which receives more than 50% of its funds from a county or a municipality, as defined in s. 59.001 (3), and which provides services related to public health or safety to the county or municipality; a university police department under s. 175.42; or a formally constituted subunit of any of the foregoing.
No. 2014AP1853
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restrain the authority from providing access to the requested
record." Wis. Stat. § 19.356(3), (4).
¶27 The three exceptions granting rights to a record
subject are set forth in Wis. Stat. § 19.356(2)(a)1., 2., and 3.
These three provisions were intended to limit this court's
holdings in Woznicki v. Erickson, 202 Wis. 2d 178, 549
N.W.2d 699 (1996), and Milwaukee Teachers' Education Ass'n v.
Milwaukee Board of School Directors, 227 Wis. 2d 779, 596
N.W.2d 403 (1999).15 In Woznicki and Milwaukee Teachers, this
court held that public employees were entitled to notice and to
seek pre-release judicial review of the response to records
requests pertaining to them.16 By enacting § 19.356(2)(a)1., 2.,
and 3., the legislature sought to limit the rights afforded by
these cases "only to a defined set of records pertaining to
employees residing in Wisconsin." 2003 Wis. Act. 47, Joint
Legis. Council Prefatory Note.17 15 See Local 2489, AFSCME v. Rock Cnty., 2004 WI App 210, ¶2, 277 Wis. 2d 208, 689 N.W.2d 644 (stating that 2003 Wis. Act 47 was enacted in response to Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), and Milwaukee Teachers' Education Ass'n v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999)).
16 See Milwaukee Teachers, 227 Wis. 2d at 797-98; Woznicki, 202 Wis. 2d at 195.
17 The court of appeals refers to the Prefatory Note to 2003 Wis. Act 47 by the Joint Legislative Council's Special Committee on Review of the Open Records Law as confirming the court of appeals' interpretation of the public records law. Legislative history may be consulted to confirm a plain meaning interpretation. Teschendorf v. State Farm Ins. Co., 2006 WI 89, ¶14, 293 Wis. 2d 123, 717 N.W.2d 258.
No. 2014AP1853
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¶28 Thus, the exceptions in Wis. Stat. § 19.356(2)(a)1.,
2., and 3. are the only instances in which a record subject has
a statutory right to receive notice and seek pre-release
judicial review of a response to a public records request.
C
¶29 Moustakis asserts that the records at issue fall into
one of these three narrow exceptions, namely, Wis. Stat.
§ 19.356(2)(a)1., that he is thus entitled to notice and pre
release judicial review of the records pertaining to him, and
that he may commence an action seeking a court order to restrain
the Department of Justice from providing access to the requested
records. This exception, § 19.356(2)(a)1., applies to a record
"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 . . . ." Wis. Stat. § 19.356(2)(a)1. (emphasis added).
¶30 The application of Wis. Stat. § 19.356(2)(a)1. to
Moustakis's records turns on whether Moustakis is an "employee"
for purposes of that provision.
¶31 "Employee" is defined in Wis. Stat. § 19.32(1bg) as
"any individual who is employed by an authority, other than an
individual holding local public office or a state public office,
or any individual who is employed by an employer other than an
authority" (emphasis added).
¶32 Thus, Wis. Stat. § 19.32(1bg) creates two categories
of employees: Individuals who are employed by an "authority"——a
No. 2014AP1853
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category narrowed by the limiting clause excluding persons
holding local public office or a state public office as
employees——and those who are employed by an employer other than
an "authority."
¶33 As we previously stated, "authority" is defined in the
public records law. See Wis. Stat. § 19.32(1). The definition
of "authority" includes a vast number of governmental entities
"having custody of a record," including, as relevant here, "a
state or local office."
1
¶34 Moustakis concedes, as he must, that he holds a state
office and that he is not an "employee" of an authority under
the first part of the definition of "employee" in Wis. Stat.
§ 19.32(1bg) that explicitly excludes from the definition of
"employee" an individual holding a "state public office."
¶35 Analyzing the definition of "state public office" in
the public records law, we agree with Moustakis that he is not
an "employee" under the first part of the definition of
"employee" in Wis. Stat. § 19.32(1bg). An individual is
excluded as an employee under § 19.32(1bg) if he or she holds a
"state public office." A "state public office" is defined in
§ 19.32(4). This provision reveals that a "state public office"
has the meaning given in § 19.42(13) (with exceptions not
relevant in the instant case). Reading § 19.42(13), we learn
that "state public office" includes "all positions identified
under s. 20.923(2) . . . ." Section 20.923(2) contains a list
of "constitutional officers and other elected state officials."
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Within that list, section 20.923(2)(j) refers specifically to "a
district attorney."
¶36 Moustakis, the Vilas County District Attorney, is thus
the holder of a "state public office" and does not qualify as an
"employee" under the first part of the definition of "employee"
set forth in § 19.32(1bg).
2
¶37 Even though Moustakis holds a state public office, he
argues that he nevertheless qualifies as an "employee" under the
second part of the definition of "employee" in Wis. Stat.
§ 19.32(1bg). According to Moustakis, he is "employed by an
employer other than an authority," namely, he is employed by the
State of Wisconsin.
¶38 In Moustakis's view, the definition of "employee" in
Wis. Stat. § 19.32(1bg) is disjunctive and the two parts are not
connected. Thus, even if Moustakis is not an "employee" under
the first part of the definition of employee in Wis. Stat.
§ 19.32(1bg), he argues that he is an "employee" under the
second part of that definition.
¶39 Specifically, Moustakis asserts that he is not an
"employee" of the Vilas County District Attorney's office, which
is identified as an "authority" under Wis. Stat. § 19.32(1).
Moustakis contends he works in the office of the district
attorney but that the indicia of employment demonstrate that he
does not work for that office. He asserts that he works for the
State of Wisconsin. The State of Wisconsin is not specifically
mentioned in the definition of "authority." See Wis. Stat.
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§ 19.32(1).
¶40 Moustakis reasons that because he is employed by the
State of Wisconsin, which is not specifically identified as an
"authority" under Wis. Stat. § 19.32(1), he is an "employee"
under the second part of the definition of employee in
§ 19.32(1bg). He claims he is thus employed by an employer
other than an "authority."
¶41 Moustakis's interpretation of the second part of the
definition of "employee" is unpersuasive for several reasons.
¶42 Moustakis argues that he is an "employee" of the State
of Wisconsin by relying on the Black's Law Dictionary's
definition of "employer." The word "employer" is not defined in
the public records law. Black's Law Dictionary defines
"employer" as "one who controls and directs a worker . . . and
who pays the worker's salary or wages."18 Moustakis reasons that
because no person within the Vilas County District Attorney's
Office has the capacity to direct, control, or pay him, his
employer is the State of Wisconsin rather than his elective
office.
¶43 A significant difficulty with Moustakis's argument is
that although the statutory definition of "authority" does not
explicitly include the State, the statutory definition of
18 The complete Black's Law Dictionary definition of "employer" is: "A person, company, or organization for whom someone works; esp., one who controls and directs a worker under an express or implied contract of hire and who pays the worker's salary or wages." Black's Law Dictionary (10th ed. 2014).
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"authority" does include a "state or local office" and "an
elective official." See Wis. Stat. § 19.32(1). A district
attorney in Wisconsin is a "state office" and a district
attorney is also an elective official.
¶44 Moustakis tries to distinguish between holding a state
public office and being employed by that office. He points out
that his employment derives from the Wisconsin constitution, as
well as the salary-fixing statutes that classify him as holding
a "state public office."19 As a result, he concludes that he is
an "employee" of the State of Wisconsin.
¶45 We agree with the court of appeals that Moustakis's
distinction between holding a state public office and being
employed by a state public office is unsupported by law, creates
confusion, is contrary to any reasonable reading of the public
records law, and is unpersuasive:
The distinction Moustakis seeks to draw between "holding" a state public office and being "employed" by a state public office is entirely of his making. Moustakis is a district attorney, which, as we have indicated, is a "state public office" under the statutes Moustakis cites. A state office is an "authority" as that term is defined in § 19.32(1), and, but for the exclusionary clause in Wis. Stat. § 19.32(1bg), Moustakis would qualify as an "employee" under the first category as an "employee" employed by an "authority." That 19 Moustakis cites Wisconsin Constitution Article VI, Section 4; Wis. Stat. § 19.32(4); Wis. Stat. § 19.42(13)(c); and Wis. Stat. § 20.923(2)(j) to buttress his claim that he is an "employee" of the State of Wisconsin.
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Moustakis would otherwise qualify as an "employee" of an "authority" means that he cannot also be employed by "an employer other than an authority." 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.
Moustakis, 364 Wis. 2d 740, ¶20.
¶46 In sum, Moustakis contends that he holds a "state
public office" and that under the second part of the definition
of "employee" in Wis. Stat. § 19.32(1bg) he is an employee of
the State of Wisconsin, which is not mentioned in the definition
of "authority."
¶47 We conclude, as did the court of appeals, that
Moustakis is not an employee under Wis. Stat. § 19.32(1bg).
Under a plain reading of the text of the first part of the
definition of "employee" under Wis. Stat. § 19.32(1bg),
Moustakis qualifies as an employee of an authority.
¶48 Because Moustakis is an employee of an authority under
the text of the first part of the definition of "employee" in
Wis. Stat. § 19.32(1bg), Moustakis cannot be an individual
employed by an employer other than an authority under the second
part of the definition of "employee." The two parts of the
definition of "employee" in Wis. Stat. § 19.32(1bg) are
interconnected. Although Moustakis is excluded from the first
part of the definition of "employee" in Wis. Stat. § 19.32(1bg)
by the statutory language excluding an individual holding a
No. 2014AP1853
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state public office as an employee,20 the first part of the
definition of "employee" makes clear that Moustakis is not an
individual employed by an employer other than an authority.
Accordingly, Moustakis is not employed by an employer other than
an authority under the second part of the definition of
"employee" in § 19.32(1bg).
¶49 We agree with the Department of Justice that the plain
language, context, structure, and the interrelated provisions of
the public records law all show that Moustakis is employed by an
"authority" and that he is not an employee under Wis. Stat.
§ 19.31(1bg).
D
¶50 Moustakis argues that interpreting the term "employee"
in Wis. Stat. § 19.32(1bg) to exclude anyone holding a "state
public office," would render the term "employee" in Wis. Stat.
§ 19.356(9) mere surplusage.
¶51 We disagree with Moustakis. Interpreting the
definition of "employee" in the public records law to exclude
individuals holding "state public office" does not render the
term "employee" as used in Wis. Stat. § 19.356(9)(a) mere
surplusage.
20 Because we decide the instant case based on the definition of "employee," we need not, and do not, address the Department of Justice's argument that the documents at issue were not the result of an investigation into a disciplinary matter involving the employee and therefore do not fit within Wis. Stat. § 19.356(2)(a)1.
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21
¶52 Section 19.356(9) states (with emphasis added):
(a) Except as otherwise authorized or required by statute, if an authority decides under s. 19.35 to permit access to a record containing information relating to a record subject who is an officer or employee of the authority holding a local public office or a state public office, the authority shall, before permitting access and within 3 days after making the decision to permit access, serve written notice of that decision on the record subject, either by certified mail or by personally serving the notice on the record subject. The notice shall briefly describe the requested record and include a description of the rights of the record subject under par. (b).
(b) Within 5 days after receipt of a notice under par. (a), a record subject may augment the record to be release with written comments and documentation selected by the record subject. Except as otherwise authorized or required by statute, the authority under par. (a) shall release the record as augmented by the record subject.
¶53 Wisconsin Stat. § 19.356(9)(a) and (b) create a notice
requirement distinct from the notice provided for in Wis. Stat.
§ 19.356(2)(a)1. Under Wis. Stat. § 19.356(9)(a) and (b), when
an authority decides to permit access to a record containing
information relating to "a record subject who is an officer or
employee of the authority holding a local public office or state
public office, the authority shall" provide written notice to
the record subject and an opportunity to augment the record to
be released.
¶54 Moustakis sometimes seems to assert that he should
have received notice under Wis. Stat. § 19.356(9)(a) and (b) and
an opportunity to augment the record. Moustakis's basic and
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repeated position, however, is that he does not want release of
the records at all. Moustakis relies on Wis. Stat.
§ 19.356(9)(a) and (b) chiefly to bolster his argument that he
is an "employee" as defined in Wis. Stat. § 19.32(1bg) and that
none of the records at issue should be released.
¶55 Moustakis reasons that, based on the language of Wis.
Stat. § 19.356(9)(a), the term "employee" in the statutes must
include some individuals holding state public office. Moustakis
asserts that under the usual rules of statutory interpretation,
the statutory definition of "employee" in § 19.32(1bg) should be
read into § 19.356(9)(a). According to Moustakis, if "employee"
as defined in § 19.32(1bg) does not include an individual who
holds state or local public office, the term "employee" in Wis.
Stat. § 19.356(9)(a) has no meaning.
¶56 Moustakis's reasoning has superficial appeal. But, as
the court of appeals noted, Moustakis's attempt to insert the
definition of the term "employee" into Wis. Stat. § 19.356(9)(a)
"creates a befuddling mess of that statute."21
¶57 We agree with the court of appeals' interpretation of
Wis. Stat. § 19.356(9)(a). The court of appeals' approach
appropriately harmonizes both statutes. The use of the word
"employee" in Wis. Stat. § 19.356(9) does not change the proper
interpretation of that term in Wis. Stat. §§ 19.32(1bg) and
19.356(2)(a)1.
21 Moustakis, 364 Wis. 2d 740, ¶23.
No. 2014AP1853
23
¶58 The phrase in Wis. Stat. § 19.356(9)(a) referring to
"a record subject who is an officer or employee of the authority
holding a local public office or a state public office" is
intended to be read as a restrictive clause modifying the term
"record subject."22 Thus, an individual who is not an "employee"
under Wis. Stat. § 19.32(1bg) may still qualify as an "officer
or employee of the authority holding a local public office or
state public office" under Wis. Stat. § 19.356(9)(a).
¶59 The court of appeals explains Wis. Stat.
§ 19.356(9)(a) as follows:
[W]e conclude the phrase "who is an officer or employee of the authority holding a local record [sic] office or state public office" was intended to be read as one restrictive clause modifying the term "record subject" in § 19.356(9)(a). Contrary to Moustakis's argument, this interpretation of § 19.356(9)(a), which is based on a straightforward, common sense reading of that statute, is fully consistent with § 19.32(1bg) in that both statutes recognize there are individuals who are employed by an "authority" and who also hold a local or state public office. In this sense, an individual who is not an "employee" under § 19.32(1bg) may nonetheless qualify as an "officer or employee of the authority holding a local public office or state public office" under § 19.356(9)(a).23
¶60 This interpretation of Wis. Stat. § 19.356(9)(a) is
consistent with Wis. Stat. § 19.32(1bg) and construes each
provision in a manner that serves each provision's purpose.
Accordingly, we conclude that the inclusion of the term
22 Moustakis, 364 Wis. 2d 740, ¶23.
23 Moustakis, 364 Wis. 2d 740, ¶23.
No. 2014AP1853
24
"employee" in Wis. Stat. § 19.356(9)(a) does not alter the
definition of "employee" in Wis. Stat. § 19.32(1bg).
¶61 Moustakis sometimes appears to argue that the
Department of Justice violated his rights to notice and an
opportunity to augment the record under Wis. Stat.
§ 19.356(9)(a) and (b). Moustakis does not ask, however, for
any relief for any violation of Wis. Stat. § 19.356(9)(a) and
(b). Aside from Moustakis's argument about the relationship
between Wis. Stat. § 19.356(9)(a) and (b) and the definition of
"employee" in Wis. Stat. §§ 19.32(1bg) and 19.356(2)(a)1.,
Moustakis's limited discussion of Wis. Stat. § 19.356(9)(a) and
(b) may be read as part of his claim that Wis. Stat. § 19.356,
as interpreted by the Department of Justice, is
unconstitutional. That claim remains pending in the circuit
court.
¶62 Moustakis's focus in this court is on pre-release
judicial review under Wis. Stat. § 19.356(2)(a)1. and (4) of the
Department of Justice's decision to provide records responsive
to The Lakeland Times' request. Moustakis's goal in this court
is an order restraining the Department of Justice from providing
access to the requested records. Considering the arguments of
the parties, we need not and do not address Wis. Stat.
§ 19.356(9)(a) and (b) further.
* * * *
¶63 After analyzing the public records law and the
parties' arguments, we conclude, as did the court of appeals,
that a district attorney holds a state public office and is not
No. 2014AP1853
25
an "employee" within the meaning of Wis. Stat. § 19.32(1bg) and
19.356(2)(a)1. Because the records at issue do not fall within
the narrow exception to the general rule that a "record subject"
is not entitled to notice or pre-release judicial review of the
decision of an authority to provide access to records pertaining
to that record subject, Moustakis may not maintain an action
under Wis. Stat. § 19.356(4) to restrain the Department of
Justice from providing The Lakeland Times access to the
requested records.

Outcome: Accordingly, we affirm the decision of the court of
appeals and the circuit court's order dismissing Moustakis's
action under the Wisconsin public records law. We remand the
cause for further proceedings.

Plaintiff's Experts:

Defendant's Experts:

Comments: