PUBLISHED OPINION
Case No.: 94-1861
Complete Title
of Case:
STATE OF WISCONSIN
ex rel. HUBERT HILL,
Petitioner-Appellant,
v.
PAUL ZIMMERMAN and
MYA HAESSIG,
Respondents-Respondents.
Submitted on Briefs: May 10, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: August 16, 1995
Opinion Filed: August
16, 1995
Source of APPEAL Appeal from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Racine
(If
"Special", JUDGE: GERALD P. PTACEK
so indicate)
JUDGES: Brown, Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the petitioner-appellant, the cause was
submitted on the briefs of Hubert Hill, pro se.
Respondent
ATTORNEYSOn behalf of the respondents-respondents, the cause was
submitted on the brief of James E. Doyle, attorney general, and Alan
Lee, assistant attorney general.
|
COURT OF APPEALS DECISION DATED AND RELEASED August
16, 1995 |
NOTICE |
|
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals. See § 808.10 and Rule 809.62(1), Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-1861
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE
OF WISCONSIN
ex
rel. HUBERT HILL,
Petitioner-Appellant,
v.
PAUL
ZIMMERMAN and
MYA
HAESSIG,
Respondents-Respondents.
APPEAL
from an order of the circuit court for Racine County: GERALD P. PTACEK, Judge. Affirmed.
Before
Brown, Nettesheim and Snyder, JJ.
NETTESHEIM,
J. Hubert Hill, an inmate in the Waupun
Correctional Institution, appeals pro se from an order quashing an alternative
writ of mandamus directed to the record custodian at the Division of Probation
and Parole of the Department of Corrections (DOC) and dismissing his petition
for the writ. On appeal, Hill contends
that the trial court erred when it concluded:
(1) the DOC record custodian was not required to grant Hill access to a
copy of his presentence report without Hill first obtaining court
authorization, and (2) the record custodian did not misuse its discretion when
it required Hill to prepay for requested copies of documents in his file. We reject Hill's challenges and affirm the
trial court order.
Background
On
February 2, 1993, Hill sent a letter to Paul Zimmerman, a DOC probation and
parole supervisor, requesting copies of “any and all ¼ records” in his
file. Zimmerman responded to Hill's
request in a letter dated February 23, 1993, which informed Hill that his
complete file contained approximately 210 pages of material and was close to
three inches thick. The letter estimated
that at fifteen cents per page, the copying charges would total “roughly
$31.50.” The letter also informed Hill
that if he would be more specific about his request, he would not have to incur
unnecessary copying charges.
Subsequently,
there were several communications between Hill and the DOC whereby Hill further
sought to obtain his file records. On
March 6, 1993, the DOC mailed Hill seventeen pages from his file after
receiving $2.55 from him. A notation on
the February 23, 1993, letter indicates that on March 17, 1993, Hill was told
that copying the remaining documents “might cost $55.00.” In a letter dated April 29, 1993, Hill
requested a copy of his presentence report and “copies of documents or any other
papers which refer to me.” The following
day, the record custodian sent Hill a Record Request Response form, denying his
request to his presentence report due to confidentiality under § 972.15(4), Stats., but granting access to the
other file documents which referred to him.
The response stated that Hill's “complete file has 276 pages” and asked
for prepayment of $41.40 pursuant to § 19.35(3)(f), Stats., for the cost of reproducing the documents.
Because
Hill did not prepay the photocopying costs, the record custodian did not
release the requested documents to him.
Hill petitioned the Racine County Circuit Court for a writ of mandamus
ordering the release of the documents.
In its response, the DOC stated that it had complied with Hill's
requests, and that he would be sent the photocopies when he prepaid the copying
charge.
The
trial court concluded that the DOC had complied with its duties under the
public records law. It determined that
until Hill prepaid the copying costs and obtained court authorization to
release his presentence report, the DOC was not obligated to provide Hill with
copies of the documents. Accordingly,
the trial court quashed the writ and dismissed the case. Hill appeals.
Discussion
The
ultimate decision whether to grant mandamus lies within the trial court's discretion. George v. Record Custodian,
169 Wis.2d 573, 578, 485 N.W.2d 460, 462 (Ct. App. 1992). A trial court properly exercises its
discretion if it reaches a reasonable conclusion based upon a consideration of
the applicable law and facts of record.
Peplinski v. Fobe's Roofing, Inc., 193 Wis.2d 6, 20, 531
N.W.2d 597, 602 (1995).
1. Presentence Investigation Report
Hill
argues that the trial court erred when it determined that the record custodian
was not required to grant him access to his presentence report after sentencing
under § 972.15(4), Stats.,
without first obtaining court authorization.
He contends that he should have been granted access to his presentence
report pursuant to subsec. (5) of the statute.[1] The interpretation of § 972.15 presents a
question of law which we review de novo.
State v. Crowe, 189 Wis.2d 72, 76, 525 N.W.2d 291, 293
(Ct. App. 1994).[2] The purpose of statutory construction is to
ascertain the intent of the legislature, and we look first to the language of the
statute itself. Northwest
Wholesale Lumber v. Anderson, 191 Wis.2d 278, 284, 528 N.W.2d 502, 505
(Ct. App. 1995). If the words of the
statute convey the legislative intent, we end our inquiry and will not look
beyond the statute's plain language in search of other meanings. Id.
Section
972.15(2), Stats., allows a
defense attorney, or a defendant not represented by an attorney, access to the
contents of a defendant's presentence investigation report prior to sentencing.[3] After sentencing, the presentence report is
confidential and is only available upon the authorization of the court unless
its release is authorized by subsec. (5).
Section 972.15(4). Subsection
(5) permits the DOC[4] to make the
report “available to other agencies or persons to use for purposes related to
correctional programming, parole consideration, care and treatment, or
research.”
Hill
contends that the DOC should have granted him access to his presentence report
pursuant to § 972.15(5), Stats.,
because defendants are “other ¼ persons” within the meaning of the statute. We are unpersuaded by this argument and
conclude that subsecs. (2) and (4) of § 972.15 are the statutory subsections
that grant a defendant access to his or her presentence report.
Section
972.15(2), Stats., provides,
“When a presentence investigation report has been received the judge shall
disclose the contents of the report to the defendant's attorney ¼ prior to
sentencing.” (Emphasis added.) Thus, before sentencing, a defendant has an
absolute right to obtain the presentence report. In such a setting, the defendant need not first obtain the
authorization of the circuit court.
However, after sentencing, the presentence report “shall be
confidential and shall not be made available to any person except upon specific
authorization of the court.” Section
972.15(4) (emphasis added).
In
contrast, § 972.15(5), Stats.,
upon which Hill relies, provides that the DOC “may make the report
available to other agencies or persons.” (Emphasis added.) We
conclude that this language is clear and unambiguous. The use of the word “may” implies the discretionary element given
to the department in making presentence reports available to “other agencies or
persons.” See Swatek v.
County of Dane, 192 Wis.2d 47, 59, 531 N.W.2d 45, 50 (1995); §
972.15(5). In addition, the use of the
word “other” refers to persons other than the defendant, since the two
preceding subsections already cover the scenarios under which the defendant may
obtain access to the report.
Our
examination of the legislative history of § 972.15(5), Stats., supports this interpretation.[5] Included in the drafting record of the
proposal to add subsec. (5) to § 972.15 is an explanatory note describing the
purpose of the requested change. The
explanation reads:
This proposal clarifies the department's authority to
use the presentence investigation report.
The report is critical for various correctional purposes such as parole
board decisions, classification and treatment needs. Under current law, it has not been clear if the PSI is allowed
for departmental use and this draft clarifies our accessibility to the report.
Legislative Reference Bureau
Drafting Record, 1987 Wis. Act 227,
§ 2.
We
conclude that the addition of subsec. (5) to § 972.15, Stats., is simply an expression of legislative intent to
authorize the DOC to use presentence reports for “correctional programming,
parole consideration, care and treatment, or research” and to make the reports
available to other agencies and persons other than a defendant for those narrow
purposes. There is no indication of
legislative intent to change the procedures by which the defendant may already
obtain access to the presentence report as provided in subsecs. (2) and (4).[6]
2. Section 19.35, Stats.
Hill
also objects to the record custodian requiring prepayment of the reproduction
costs. He contends that he was not
provided an “‘[a]ctual’ cost/fee for production of the requested
documents.” See § 19.35(3)(a), Stats.
Hill further maintains that he has “no legal duty to pre-pay rough
estimates” of the copying costs. To
address this argument, we are again required to engage in statutory
interpretation.
We
conclude that the legislature's intent is clear from the language of the
statute. The public records law permits
access to “any material on which ¼ information is recorded or preserved, regardless of
physical form or characteristics, which has been created or is being kept by an
authority.”[7] Sections 19.32(2), 19.35, Stats.
Section 19.35(1) grants any requester the right to inspect any
record. Subsection (3)(a) permits an
authority to “impose a fee upon the requester of a copy of a record which may
not exceed the actual, necessary and direct cost of reproduction and
transcription of the record.”
Although
an authority may not impose a fee that exceeds the actual cost of reproducing
documents, it may require prepayment of the fees imposed if the total amount
exceeds five dollars. Section 19.35(3)(f),
Stats. We reject Hill's argument that an authority may not give a
reasonable estimate of the costs expected to exceed five dollars and require
payment before it undertakes large copying tasks. This subsection is clearly intended to protect an authority from
squandering staff time, supplies and equipment usage for a substantial copying
project that a requester might later disavow.
To read the statute otherwise would require the authority to actually
copy the documents to obtain an exact amount of the costs, which would soundly
defeat the purpose of § 19.35(3)(f). In
construing a statute, this court is to favor the construction that fulfills the
purpose of the statute over one that defeats the purpose. Seaquist v. Physicians Ins. Co.,
192 Wis.2d 530, 545, 531 N.W.2d 437, 442 (Ct. App. 1995). We will not adopt an interpretation of a
statute that leads to an unreasonable result where there is a reasonable
alternative. Id.
Here,
Hill makes no argument that the charges were unreasonable or miscalculated. Although Hill was given estimates prior to
receiving a formal Record Request Response, he was given an exact amount. The record custodian informed Hill that his
file contained 276 pages and gave a final cost of $41.40 based on a charge of
fifteen cents per page. In addition,
Hill had previously been asked if he wanted to narrow his request so as to
reduce the copying charge. We conclude
that the trial court properly exercised its discretion when it determined that
the record custodian acted within its authority under § 19.35(3)(f), Stats., when it refused to copy Hill's
file until payment was received. The
statute specifically authorizes an authority to request prepayment if the cost
exceeds five dollars. If, when Hill
prepays, the estimate exceeds the actual cost, the overpayment can be refunded.
We
affirm the trial court's order quashing the alternative writ of mandamus
directed to the record custodian at the DOC.
By
the Court.—Order affirmed.
[1] Section
972.15(5), Stats., provides in
part: “The department may make the report available to other agencies or
persons to use for purposes related to correctional programming, parole
consideration, care and treatment, or research.”
[2] Section
972.15(1), Stats., provides that
a trial court “may” order a presentence investigation report. Such reports are not constitutionally
required, nor has the legislature mandated the use of them. Bruneau v. State, 77 Wis.2d
166, 174, 252 N.W.2d 347, 351 (1977).
[3] Defendants
represented by counsel also have the right to obtain copies of their
presentence investigation reports. In State
v. Skaff, 152 Wis.2d 48, 56-57, 447 N.W.2d 84, 88 (Ct. App. 1989), the
court of appeals concluded that § 972.15(2), Stats.,
could not be interpreted to grant defendants appearing without counsel greater
rights to their presentence reports than those with counsel.
[4] See §
967.02(2), Stats. (in chs. 967 to
979, Stats., “Department” refers
to the department of corrections except as provided in § 975.001, Stats.).
[5] Notwithstanding
our determination that subsec. (5) is clear on its face, we may properly look
to the legislative history to reinforce our conclusion that it is indeed
unambiguous. See Novak v.
Madison Motel Assocs., 188 Wis.2d 407, 416, 525 N.W.2d 123, 126 (Ct.
App. 1994).
[6] Hill also argues
that the Freedom of Information Act (FOIA) grants him a right to his
presentence report because the DOC is an “agency” within the meaning of this
federal statute. See 5 U.S.C.
§ 552. However, for purposes of 5
U.S.C. § 552, an “agency” is defined as “each authority of the Government of
the United States.” 5 U.S.C. §§ 551(1),
552(f). A Wisconsin state agency is
therefore not under the purview of 5 U.S.C. § 552. Although Wisconsin courts have looked to federal case law
interpreting the FOIA, it is only persuasive authority for Wisconsin's open
records law, which governs Hill's claim.
See State ex rel. Lank v. Rzentkowski, 141 Wis.2d
846, 856 n.5, 416 N.W.2d 635, 638 (Ct. App. 1987). It has been noted that enforcement of the FOIA has been less
successful than the enforcement of Wisconsin's open records law, primarily
because of the nine categories of exemptions in the FOIA. See Wisconsin Family Counseling
Servs., Inc. v. State, 95 Wis.2d 670, 672-73, 291 N.W.2d 631, 633-34
(Ct. App. 1980); 5 U.S.C. § 552(b)(1)-(9).