Michael Mattioli v. City of Milwaukee Police Department

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
December 20, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP992 Cir. Ct. No. 2020CV7144

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

MICHAEL MATTIOLI,

PLAINTIFF-APPELLANT,

V.

CITY OF MILWAUKEE POLICE DEPARTMENT,

DEFENDANT-RESPONDENT,

JOSE ACEVEDO AND MARIBEL ACEVEDO,

INTERVENORS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM S. POCAN, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.
No. 2021AP992

¶1 WHITE, J. Michael Mattioli appeals from the circuit court order
denying his request to enjoin the disclosure of police investigation records under
Wisconsin’s public records law. Mattioli argues that the records are exempt from
disclosure because the records were maintained in connection with the ongoing
criminal investigation. Further, he argues that the circuit court’s release of the
records would interfere with his right to a fair trial, even with proposed redactions
of his personal information. Upon review, we conclude that the records may be
released with the redactions previously ordered by the circuit court, and
accordingly, we affirm.

BACKGROUND

¶2 This case arises out of a public records request related to the death of
Joel Acevedo after an altercation at Mattioli’s home in April 2018. On May 13,
2020, Mattioli, then a Milwaukee Police Department (MPD) officer, was charged
with one count of first-degree reckless homicide.

¶3 On June 1, 2020, Jose and Maribel Acevedo, Joel’s parents
(hereinafter the Acevedos), filed a public records request with the City of
Milwaukee and MPD, requesting records related to Joel’s death and Mattioli’s
employment. The following facts are taken from MPD’s briefing to the circuit
court,1 “MPD denied that request, as the internal personnel investigation of
Michael Mattioli was still ongoing at that time, and as WIS. STAT. § 19.36(10)(b)

1
In its brief to the circuit court, MPD stated that it was not filing a dispositive motion,
but was filing a brief “to provide additional factual and legal context beyond what was included
in its answer” to Mattioli’s complaint.

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(2019-20)2 prohibits an authority such as MPD from releasing records pertaining
to an internal personnel investigation prior to the disposition of the investigation.”
In July 2020, the Acevedos filed a petition for a writ of mandamus ordering MPD
to release the records. Mattioli resigned from his position as an MPD officer in
September 2020. Again, as indicated in MPD’s briefing, as a result of Mattioli’s
resignation, MPD’s internal investigation of Mattioli was concluded. The
Acevedos stipulated to dismissing the petition for a writ and submitted a new
records request in September 2020.

¶4 In the second public records request to the City of Milwaukee and
MPD, the Acevedos sought copies of “[A]ll 9-1-1 audio recordings, body cam[era]
video, dash cam[era] video, call records, offense report, personnel file,
investigative file, statements and all other relevant material related” to Joel’s
death. MPD responded to the Acevedos on November 19, 2020, offering a partial
fulfillment of the request. MPD organized its understanding of the request as:

1. 911 Audio Recording

2. Computer Aided Dispatch (CAD) report

3. Michael Mattioli’s Personnel file and Disciplinary Case
File History

4. Michael Mattioli’s Resignation letter

5. Milwaukee County’s District Attorney’s investigative
report

6. Medical Examiner’s report

7. State of Wisconsin Crime Lab report

2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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8. MPD Internal Affairs Division internal report

9. Fire and Police Commission internal report

10. Body Camera and Dash Camera footage

In its response to the Acevedos, MPD attached items one through six. Item seven
was withheld per a statutory exemption for privileged evidence under WIS. STAT.
§ 165.47. Items eight and nine were withheld pending a lapse of a statutory
deadline of notification of Mattioli pursuant to WIS. STAT. § 19.356(2)-(4). Item
ten (hereinafter, the video footage) remained under review. MPD noted that
certain personally identifiable information was redacted from the records.

¶5 That same day, MPD sent a letter to Mattioli, informing him that as
the records custodian, it determined that the internal reports and the video footage
were subject to disclosure. Mattioli was informed of his statutory rights under
WIS. STAT. § 19.356(4) to seek a court action to enjoin the release of the
information. Mattioli timely filed his action in circuit court, seeking an injunction
precluding the release of the requested records. Also relevant here, the Acevedos
intervened in the court action—as the requesters they were allowed to “intervene
in the action as a matter of right.” See id.

¶6 Before the circuit court, Mattioli argued that WIS. STAT.
§ 19.35(1)(am)1. exempted the records from open access because they were
“collected or maintained in connection with a complaint [or] investigation[.]”
Additionally, he argued that releasing the records would impede his right to a fair
trial. MPD took no position on Mattioli’s request. The Acevedos opposed the
request and argued for the release of the records.

¶7 In May 2021, after briefing and oral argument, the circuit court
issued a written decision concluding that the exemption to public records proffered

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by Mattioli, WIS. STAT. § 19.35(1)(am)1. did not apply. The court found that
“Mattioli’s case [was] in the midst of criminal proceedings rather than an
investigation where the government [was] still contemplating prosecution.” The
circuit court instead followed the standard procedure for records requests under
§ 19.35(1)(a), which the court stated required balancing the “relevant factors to
determine whether the public interest in nondisclosure outweighs the public
interest in favor of disclosure.” The court concluded that “the requested records,
including the body camera and dashboard camera footage, can be released in a
manner so that disclosure would not interfere with Mr. Mattioli’s criminal trial.”
The court was concerned about the effects of the video footage and statements on
Mattioli’s “ability to get a fair trial[.]” Therefore, it ruled that “while the videos
should be released, Mr. Mattioli’s image in the videos should be redacted, i.e.
blocked or blurred out.” The court further ordered Mattioli’s statements be
redacted.

¶8 Mattioli appeals.

DISCUSSION

¶9 Mattioli argues that the exception in WIS. STAT. § 19.35(1)(am)1.
prevents MPD from releasing the requested records under the public records law.
The Acevedos argue that no exceptions apply and the records should be released.
We conclude that paragraph (1)(am) does not apply to this records request and
instead, its release is governed by paragraph (1)(a).

¶10 Public records cases generally fall into two categories: a party
seeking to force the release of records or a party seeking to prevent the release of
records. Compare Hempel v. City of Baraboo, 2005 WI 120, ¶¶18, 43, 284
Wis. 2d 162, 699 N.W.2d 551 (denying the release of public records under the

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investigation exception in WIS. STAT. § 19.35(1)(am)), with Linzmeyer v. Forcey,
2002 WI 84, ¶6, 254 Wis. 2d 306, 646 N.W.2d 811 (affirming the release of public
records after concluding that the investigation exception was not applicable). We
conclude that Mattioli’s case is of the latter type. The application of the public
records law to undisputed facts is a question of law that we independently review,
while benefiting from the circuit court’s analysis. See Hempel, 284 Wis. 2d 162,
¶21. Determining the application of the public records law is a “matter of
statutory interpretation, which we review independently[.]” Linzmeyer, 254
Wis. 2d 306, ¶13.

¶11 We begin our analysis with the public records law, set forth in WIS.
STAT. §§ 19.31-.37, which declares the policy of the law to be that “all persons are
entitled to the greatest possible information regarding the affairs of government
and the official acts of those officers and employees who represent them.”
Sec. 19.31. “The denial of public access generally is contrary to the public
interest, and only in an exceptional case may access be denied.” Id. Access to
public records is governed by WIS. STAT. § 19.35. Recognizing the public policy
behind this law, the statute begins, “Except as otherwise provided by law, any
requester has a right to inspect any record.” Sec. 19.35(1)(a). In limited
circumstances, the subject of a records request is notified about pending release
and has the opportunity to seek a court order to enjoin the release. See WIS. STAT.
§ 19.356.

¶12 We focus on two types of requests: the general request under
paragraph (1)(a) and the additional request for personally identifiable information
under paragraph (1)(am) of WIS. STAT. § 19.35. For basic public records requests
under paragraph (1)(a), “there are no blanket exceptions from release, other than
those provided by the common law or statute.” Linzmeyer, 254 Wis. 2d 306, ¶10.

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“If no statutory or common-law exceptions apply, a records custodian is permitted
to engage in a balancing test to decide whether the strong presumption favoring
disclosure is overcome by some even stronger public policy favoring limited
access or nondisclosure.” Seifert v. School Dist. of Sheboygan Falls, 2007 WI
App 207, ¶30, 305 Wis. 2d 582, 740 N.W.2d 177.

¶13 The second type of request set forth in WIS. STAT. § 19.35(1)(am)
provides that in addition to rights of access under paragraph (1)(a), “any requester
who is an individual or person authorized by the individual has a right to inspect
any personally identifiable information pertaining to the individual in a record
containing personally identifiable information that is maintained by an
authority[.]” Sec. 19.35(1)(am). Thus, this paragraph focuses on the individual
who is requesting to inspect records containing personally identifying information
pertaining to that individual. Although there are three statutory exceptions, only
one is at issue here:

Any record containing personally identifiable information
that is collected or maintained in connection with a
complaint, investigation or other circumstances that may
lead to an enforcement action, administrative proceeding,
arbitration proceeding or court proceeding, or any such
record that is collected or maintained in connection with
such an action or proceeding.

Sec. 19.35(1)(am)1. In contrast to paragraph (1)(a), requests under paragraph
(1)(am) “are not subject to any balancing test; the legislature has done the
balancing by enacting statutory exceptions to the disclosure requirements.”
Hempel, 284 Wis. 2d 162, ¶27.

¶14 With the basics of public records law in mind, we turn to Mattioli’s
argument that WIS. STAT. § 19.35(1)(am)1. prevents MPD from releasing the
requested records because of the pending criminal prosecution he faces in Joel’s

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death. The key to our analysis is that Mattioli is not requesting his own personally
identifiable information contained in public records—he is seeking to enjoin
disclosure of public records that contain personal identifying information about
him. “The right to inspect under paragraph (am) is clearly limited to personally
identifiable information about the requester.” Hempel, 284 Wis. 2d 162, ¶34. The
Acevedos requested records pertaining to Joel’s death and Mattioli’s conduct.3
Mattioli is the subject of the investigation. Mattioli is not seeking access to his
own personally identifiable information under the additional right of access in
paragraph (1)(am).4

¶15 Two cases illustrate how the subdivision (1)(am)1. investigation
exception is applied: Linzmeyer and Hempel. First, in Linzmeyer, the Wisconsin
Supreme Court concluded that the public records law applied and no exceptions or
public policy concerns barred release of records requested by a newspaper and
several parents for a police report investigating a teacher suspected of
inappropriate conduct.5 Id., 254 Wis. 2d 306, ¶¶1-2, 42. Like Mattioli, the teacher
filed an action to enjoin the records release, but our supreme court concluded that

3
To the extent that the Acevedos, as Joel’s representatives, could arguably request
additional access to Joel’s personally identifiable information, we are not persuaded that potential
status affects how Mattioli’s action for an injunction is reviewed.
4
Although the record custodian’s understanding of the request is not dispositive, we
consider it instructive. MPD’s attorney stated that the request was not analyzed under WIS. STAT.
§ 19.35(1)(am)—“that enhanced analysis should not have been performed and was not
performed.”
5
Our supreme court followed a two-step analysis of the public records inquiry in
Linzmeyer v. Forcey, 2002 WI 84, ¶10, 254 Wis. 2d 306, 646 N.W.2d 811. “First, we determine
whether the open records law applies to the record in question” by “look[ing] at the statutory
language of that law, along with its statutory and common law exceptions.” Id. “[O]ur second
step is to determine if there is a public policy that overrides the presumption of openness.” Id.,
¶11.

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the subdivision (1)(am)1. investigation exception was not applicable “where the
investigation has been closed and where it has been confirmed that there is no
chance that the [records] will ‘lead to an enforcement action.’” Id., ¶17.

¶16 Second, in Hempel, the Wisconsin Supreme Court concluded that
the subdivision (1)(am)1. exception barred the release of records requested by a
police officer seeking access to records related to his employer police
department’s investigation into his alleged sexual harassment of a female officer.
Id., 284 Wis. 2d 162, ¶1. The police officer was the requester of the information,
seeking specifically to reach confidential information about the investigation into
his conduct. Id., ¶18. Our supreme court applied the paragraph (1)(am) analysis
because the officer was the requester, but denied a release of the records under the
subdivision (1)(am)1. exception upon concluding there was still potential for an
additional investigation. Id., ¶57.

¶17 Although our supreme court analyzed the application of WIS. STAT.
§ 19.35(1)(am) in Linzmeyer; its holding in Hempel three years later reflects a
more in depth consideration of the limitations on access under paragraph (1)(am).
The Hempel court concluded that “paragraph (am) should be interpreted to reflect
its original purpose of giving an individual access to records containing personally
identifiable information about the individual, so that he or she may determine what
information is being maintained and whether this information is accurate.” Id.,
284 Wis. 2d 162, ¶55. Our supreme court further concluded “[g]iving an
individual access to records of a government investigation that may be used in a
future proceeding, particularly internal investigative records that will identify
informants, was never an objective of this paragraph.” Id.

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¶18 In Hempel, our supreme court explained that the lack of ongoing
investigation was important—and speculated that an ongoing investigation might
yield a different result—but it concluded that “[t]o the extent that the teacher in
Linzmeyer was attempting to use the exceptions in paragraph [1](am) to prevent
the police department from releasing his records, he was misapplying the statute.”
Hempel, 284 Wis. 2d 162, ¶43. The court stated that the procedural posture in
Linzmeyer is “quite different” than the officer in Hempel, who wanted to force the
release of records. Id. In Linzmeyer, the court rejected his attempt to use the
investigations exception in paragraph (1)(am) to prevent disclosure of the police
investigation report. We conclude that for the same reasons we reject Mattioli’s
request to prevent the disclosure of the public records requested by the Acevedos.6
See id., 254 Wis. 2d 306, ¶18. Mattioli was not requesting access to his own
personal information and thus the exception in paragraph (1)(am) does not apply
to these facts and circumstances.7

6
The circuit court concluded that the Linzmeyer commentary about “a police
investigation that was still on[]going” was “most likely” to invoke the WIS. STAT. § 19.35(1)(am)
exception was not applicable because Mattioli had already been charged at the time of the request
and there was no ongoing police investigation. See Linzmeyer, 254 Wis. 2d 306, ¶18. However,
we are not inclined to create a bright line rule to tie the disclosure analysis to the issuance of
charges. The public records disclosure analysis must be made “on a case-by-case basis.” See
Hempel v. City of Baraboo, 2005 WI 120, ¶62, 284 Wis. 2d 162, 699 N.W.2d 551. To the extent
that our reasoning differs from the circuit court, we affirm the circuit court’s order on different
grounds. See State v. Smiter, 2011 WI App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920.
7
Mattioli points to a comment in Linzmeyer, where our supreme court speculated that
“[t]he exception under [subdivision (am)1.] would most likely apply to a police investigation that
was still on[]going, an investigation where the government was still contemplating prosecution,
or an investigation that overlapped with other on[]going cases.” Id., 254 Wis. 2d 306, ¶18. If we
adopted Mattioli’s reading of Linzmeyer, many police records would not be able to be released
because they were connected to a complaint or investigation. Such a broad position does not
align with the general presumption of open access to public records. “This presumption reflects
the basic principle that the people must be informed about the workings of their government and
that openness in government is essential to maintain the strength of our democratic society.” Id.,
¶15.

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¶19 Instead, Mattioli’s request for injunctive relief is properly analyzed
as a general request under WIS. STAT. § 19.35(1)(a). Mattioli argues that even
when analyzed under paragraph (1)(a) and its balancing test, public policy
considerations require the records to be kept confidential until Mattioli’s trial is
over. However, under the paragraph (1)(a) analysis, Mattioli has not shown that a
statutory or common law exception applies. Without an exemption, the
presumption of openness applies to the Acevedos’ request for disclosure of the
records. Thus, we must next decide “whether that presumption can be overcome
by a public policy favoring non-disclosure.” Linzmeyer, 254 Wis. 2d 306, ¶24.
“The fundamental question we must ask is whether there is harm to a public
interest that outweighs the public interest in inspection of the” records. Id. “If the
harm to the public interest caused by release overrides the public interest in
release, the inspection of the public records may be prevented in spite of the
general policy of openness.” Id., ¶25.

¶20 To the extent that Mattioli’s concerns are personal embarrassment,
the public records law provides no shield. “This public interest is not equivalent
to an individual’s personal interest in protecting his or her own character and
reputation.” Id., ¶31. Mattioli has the burden to show that the public interests
favoring nondisclosure outweigh the public interests favoring disclosure. See
John K. MacIver Inst. for Pub. Pol’y, Inc. v. Erpenbach, 2014 WI App 49, ¶14,
354 Wis. 2d 61, 848 N.W.2d 862 (“It is the burden of the party seeking
nondisclosure to show that ‘public interests favoring secrecy outweigh those
favoring disclosure.’”) (citations omitted). Mattioli has identified the public
interest in having a fair trial, which transcends his individual interest. We agree
that a fair trial is in the public interest, but we reject the notion that all records
must remain secret in order to ensure a fair trial. See Local 2489, AFSCME,

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AFL-CIO v. Rock Cnty., 2004 WI App 210, ¶30, 277 Wis. 2d 208, 689 N.W.2d
644. When we have previously considered secrecy to ensure fairness, we
concluded that “[i]f that proposition were true, then all criminal complaints should
be sealed and pretrial proceedings conducted outside of public view because the
public also takes a dim view of criminal conduct.” Id.

¶21 The circuit court crafted a solution to Mattioli’s public policy
concern for a fair trial. Although Mattioli argues that redaction was not requested
by any party, we conclude that the circuit court’s decision with regard to redaction
complied with Wisconsin law. WISCONSIN STAT. § 19.36(6) provides for
redaction in the disclosure of public records when a record contains information
subject to disclosure under WIS. STAT. § 19.35(1)(a) or (am) and “information that
is not subject to such disclosure[.]” Sec. 19.36(6). The records custodian “shall
provide the information that is subject to disclosure and delete the information that
is not subject to disclosure from the record before release.” Id. “[T]o the extent
that … privacy interests are implicated, they could be protected by a redaction[.]”
Linzmeyer, 254 Wis. 2d 306, ¶40. We conclude that the circuit court’s solution is
satisfactory and statutorily sound.

¶22 We conclude that the public records law’s policy of open disclosure
applies to the requested records in this case. The investigation exception under
WIS. STAT. § 19.35(1)(am)1. is not applicable as a shield for Mattioli, who was the
subject of an investigation but was not the requester of the public records. Further,
Mattioli is unable to show this court any statutory or common law exceptions that
would take the requested records out of the purview of open access under the
public records law. Additionally, Mattioli has not shown a public policy that
would override the general public policy requiring public records be open to

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disclosure. Thus, we affirm the decision of the circuit court, including its
previously ordered redactions. See Linzmeyer, 254 Wis. 2d 306, ¶43.

CONCLUSION

¶23 For the reasons explained above, we conclude that MPD is not
enjoined from releasing the requested records and those records may be released,
with the redactions previously ordered by the circuit court.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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