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Discretionary Immunity (Wis. Stat. §893.80-Immunity)

Municipal defendants (Sauk County) were granted summary judgment based on discretionary governmental immunity regarding an error made in response to open records request by a reporter at a local newspaper.

A local reporter submitted an open records request for six booking photos or “mug shots” from the Sauk County Sheriff’s Office. After determining that the requests were appropriate, the Jail Clerk at the Sheriff’s Office responded by sending the requested mug shots to the reporter. The local newspaper published, in print and online, the reporter’s story about additional child assault charges being filed against one of the men whose mug shot was requested. The mug shot that ran alongside the article was not of the man who was being charged with additional crimes. Rather, the mug shot was of a man with the same first and last name as the man being brought up on additional charges. The two men did have different middle initials. Upon notice of the error, the newspaper removed the mug shot and published a retraction.

The man whose mug shot was used in the story filed a four-count complaint against the newspaper, the County, and a County Sheriff’s Office Captain. The two counts against the County Defendants alleged defamation by libel and invasion of privacy. The County Defendants filed a Motion for Summary Judgement arguing that their actions were shielded by governmental immunity, that they could not be found liable for defamation in an article they did not publish, that the disclosure of the plaintiff’s mug shot to the reporter was not defamatory conduct, and that there could be no claim for invasion of privacy for the disclosure of a public record. Further, the County Defendants argued that the actions taken by the Jail Clerk in responding to the reporter’s public records request for various mug shots qualified for immunity because the Jail Clerk’s actions constituted “acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions” pursuant to Wis. Stat. §893.80(4).

In response to the County Defendants’ claim of discretionary immunity, the plaintiff argued that the Jail Clerk’s actions in responding to the reporter’s request for a mug shot should be evaluated as two separate acts–the discretionary act of determining whether to fulfill the mug shot request and the separate ministerial acts of locating the requested mug shot and sending it to the reporter.

The Court held that the evaluation, analysis, and response to a public records request is undoubtedly a discretionary act for the purposes of applying governmental immunity afforded by Wis. Stat. §893.80. The Court rejected the plaintiff’s argument that the fulfillment of a public records request should be broken down into a discretionary act followed by a ministerial act. 

Citing the testimony of the Jail Clerk and Captain, the Court found that the Sheriff’s Office undertakes the requisite analysis described in Democratic Party of Wis. V. Wis. Dep’t of Justice, 2016 WI 100, 372 Wis2d 460, 888 N.W.2d 584, with each public records request that it receives–whether they involve personnel files, privileged or confidential documents, or other potentially sensitive matters, prior to determining if the requested record can legally be released. Factors that could preclude a record from being released by the Sauk County Sheriff’s Office include records relating to a juvenile, an ongoing investigation, or a domestic abuse victim. Records could also be withheld if they contain protected health information or if public safety would be at risk by releasing the record.

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