In Moustakis v. DOJ (2018AP373), the Court of Appeals District III held that the public records law is constitutional as applied to elected officials.

Former district attorney Albert Moustakis was the subject of a public records request. The Department of Justice (DOJ) compiled records, which contained unsubstantiated complaints about Moustakis, and performed a weighing of interests, ultimately determining disclosure of the records was in the public’s interest.

Moustakis received a copy of the records prior to their release, then filed the instant lawsuit seeking to enjoin DOJ from releasing the records. Moustakis argued that 1) DOJ’s records custodian made an arbitrary determination and should redo the public interest balancing test, and 2) the public records law (Wis. Stat. § 19.356) is unconstitutional as applied to him in his capacity as an elected official.

The appeals court rejected both Moustakis’s arguments. First, the court determined Moustakis did not show he had a clear legal right to a writ of mandamus requiring a new balancing test. Statutes favor disclosure of records even when they contain unsubstantiated complaints, and the law does not require the records custodian to consult with the records subject before making a disclosure determination. Therefore, the DOJ records custodian was acting within his discretionary power and did not make an arbitrary determination to release the records.

Second, the court determined that the public records law is constitutional as applied to Moustakis in his capacity as an elected official. Wis. Stat. § 19.356 provides that authorities need not notify record subjects before release; however, the statute does have an exception for public employees. Moustakis argued this exception offered to public employees and not elected officials violates his constitutional equal protection rights. The court determined that the statute did not violate Moustakis’s fundamental rights, so rational basis, not strict scrutiny, applied. The court agreed with DOJ that providing the public with the greatest information possible on their elected officials was a rational basis for the legislature to enact the statute distinguishing between public employees and elected officials. Therefore, the public records law is constitutional as applied to Moustakis.