District Attorney Agrees With His Office That Potentially Embarrassing Recordings Of Him Should Not Be Released

from the I-hereby-declare-the-public's-interests-to-be-aligned-with-MY-interests dept

For almost a year now, a Wisconsin district attorney (now the state's Attorney General) has been trying to keep allegedly embarrassing footage of him from making its way into the hands/eyes of the public. Last October, while running for the State Attorney General's office, Brad Schimel first went to court to prevent his political opposition from doing this:

Video that purportedly shows the Republican vying to be Wisconsin attorney general making racist and sexist remarks could be released just days before the election...

The Democratic Party of Wisconsin brought the issue to a head with an Oct. 21 petition that says Waukesha County district attorney Brad Schimel made "offensive racial remarks and ethnic slurs, including but not limited to stereotyped accents, as well as sexist remarks" during a Statewide Prosecutors Education conference.

The recordings -- taken at a statewide prosecutors conference and apparently containing (in addition to the alleged racist and sexist remarks) "sensitive subject matter" pertaining to the prosecution of child pornography cases -- have twice been ordered to be released by judges. And twice the state's Department of Justice has stepped in on Schimel's behalf.

Schimel claims the reason he wants these recordings to remain locked up is that they contain sensitive information about other people.

"The decision by Attorney General Van Hollen in 2014 to withhold disclosure of these videos was based on sound principles of victim protection and maintaining confidentiality of prosecutorial techniques," Schimel said in the statement.

Nonetheless, the judge presiding over the case didn't buy the DOJ's arguments.

With regard to the 2013 video recording, the circuit court noted the DOJ’s claim that victims would be harmed by disclosure. The circuit court made the following findings of fact about the 2013 video recording. The presentation took place in a large conference room with numerous individuals present. In his presentation, Schimel employed the “case study” method, focusing on a high-profile case from several years before. Largely addressing prosecutors, Schimel shared lessons learned in dealing with victims of sensitive crimes, tips for interacting with victims, and changes Schimel intended to make in his own practices. Schimel commented on the reactions of the victims and their families to the crime, how the defendant first came to the attention of law enforcement, and the role of the courts. While Schimel provided a great deal of detail, he did not share any identifying information about the victims.

The circuit court further found the information in Schimel’s 2013 presentation would be helpful to families trying to protect children from crime and would encourage cooperation in the prosecution of crime. In particular, the court found that the public should hear Schimel’s statements that there were lessons to be learned from the prosecution at issue in the case study. The case study crime was widely reported at the time of the prosecution, the criminal complaint contained virtually everything Schimel mentioned, and Schimel’s presentation did not add anything not already in the public sphere. Furthermore, Schimel did not offer anything novel regarding prosecution techniques or approaches, and the presentation did not impact the ability of prosecutors to prosecute crimes successfully or work with law enforcement or the community. The circuit court concluded that the public’s right to know outweighed the public’s interest in shielding the 2013 video recording from public view.

The same goes for the contested recordings from 2009.

The circuit court next considered the 2009 video recording, reiterated the strong presumption in favor of disclosure, and made the following findings. The court described the video recording as “investigating child predators 101,” a basic and not particularly novel presentation. Schimel discussed various strategies used in investigating and prosecuting sex predators, but most, if not all, of the strategies and techniques were already widely discussed in the public sphere. Noting that law enforcement techniques have evolved significantly since 2009, the court found “not a shred of evidence in this record that releasing that 2009 video is going to impact the ability to prosecute and investigate and” apprehend sex predators. The public had a right to know how to protect children from internet predators and that law enforcement and prosecutors are taking steps to protect children. The public interest in access to the 2009 video recording outweighed the DOJ’s reasons for withholding the recording.

Schimel, through his office, has appealed this decision, asking for an extension of the twice-challenged injunction until the state's Supreme Court has had a chance to review the case. The motion notes correctly that a released recording cannot be "unreleased" if the Supreme Court later finds in favor of the DOJ. Thus ends the logical arguments. Surrounding that are many statements that use the public's name in vain while attempting to "save" the public from recordings a court has already determined would benefit the public.

Beginning with the second factor--irreparability--it is clear that the denial of a stay would essentially nullify any further review, even if the supreme court were to accept DOJ's position. If DOJ were to prevail on appeal, but without a stay, the public will have suffered irreparable injury because the videos will have been released contrary to the public's interest.

This would seem to conflate Schimel's interest with the public's interest. Considering a petition was signed for the release of video (by a partisan group, so there's that), there would appear to be public interest in the release of these recordings, especially if they contain the racist and sexist remarks the plaintiffs claim they do. (The court's decision to lift the stay does not address the existence/nonexistence of these comments.)

Schimel/the DOJ's motion also notes that time is no longer of the essence, considering its previous thwarting of the recordings' release during the run-up to an election.

The remaining factors ask whether harm will come to the petitioners or the public if a stay is granted. There is no good reason to think that harm to either would occur. These videos relate to law enforcement techniques and otherwise discuss past crime-related events. The petitioners have provided no reason to think that they need them immediately. Rather, the videos were initially sought in anticipation of an election that is now past.

Likewise, there is no time-sensitive information in the videos that the public might need now instead of later. Rather, the public interest is best served by allowing this litigation to reach finality after the supreme court decides whether to accept review. If review is granted, that court will be the ultimate arbiter of what best serves the public, but only if a stay is imposed or continued now.

Once again, the DOJ speaks for the public and declares the release to be against its interests. It also makes lofty statements about how the Supreme Court knows best, something Schimel may regret if the state's top court finds in favor of the plaintiffs.

Filed Under: brad schimel, censorship, foia, freedom of information, wisconsins