Clarification on the False Balance Test
The opinions, Linzmeyer v. Forcey and Newspapers, Inc. v Breier, are the only court opinions requiring a balance test between investigational integrity and public disclosure of material from that investigation. Criminal investigations are in the public interest. As is not interfering with criminal investigations.
Both opinions create a 2 part test. The first part is the question: "Is this a record as defined by statute 19.35?"
Yes, I am requesting records. Moreover they are records the creation of which is required by statute 7.51(4). The records sought by Owen of Boots and Sabers are required to be created under 6.29(2)(a)).
The second half of the test is in 3 parts. The answers to the 3 parts for my open record request are.
|1.||No||Is the record a police report or investigational work product?|
|2.||Yes||Is the record part of an ongoing investigation?|
The record is part on an ivestigation.
|If not, could the record be used as part of disiplinary action or other legal sanction?|
Since, the records I want are not investigational work product there is no specific interest for the Election Commssion to balance as a police department, district attorney or federal prosecutor would need to balance.
The duty of the Election Commission then is to balance the general, public interest that criminal investigations not be compromised. This vague, unspecific interest is not connected to the specific records requested. The Milwaukee City Election Commssion should read the the DOJ document on handling open records requests. The records I want are records in the class of absolute right to access. The creation of the records is mandated by state statute. The keeping of the records is mandated by state law. These "must keep" provision are to the detail that a whole chapter,7.23, is required to define the "must keep" rules. See the case, State ex rel. Journal Co. v. County Court cited in the DOJ document on "Must Keep" documents. Hiding them with other officials does not work and the court ruled against the "I don't have them" defence.
The balance test may be moot because of the statutory nature of the records sought. But if not, the concern by the investigated to an on-going investigation needs to specific. How does disclosure of these, specific records pose a risk to which investigation? A copy of the letter from the DA or the Federal prosecutor would suffice to make this connection between the records requested and the investigation. At present the connection between disclosure of these records and the risk to the investigation is unsubstantiatied.
Which is why I have initiated an open records request for any such letter(s) to the Milwaukee Election Commission from the either the DA or the federal prosecutor.