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May 19, 2019

5/14/2019 7:30:00 AM
Moustakis loses again in open records fight
Court reject's claim that public records law violated his constitutional rights

Richard Moore
Investigative Reporter

Retired Vilas County district attorney Albert Moustakis has extended his years-long losing streak in his quest to prevent state Department of Justice records from being released to The Lakeland Times, with a state appeals court rejecting his latest arguments.

The Times had filed an open-records request with the state Department of Justice in 2013 for any investigatory records involving Moustakis. In 2014, Moustakis sued the DOJ to block the impending release of the records to The Times.

The DOJ had investigated complaints about Moustakis but found them to be unsubstantiated and intended to release redacted versions of the records, but Moustakis did not want them released. He became aware of the impending release because the DOJ notified him of its intention, not because they were legally obligated to, the DOJ asserted, but as a courtesy.

In 2015, the state Supreme Court rejected Moustakis's first effort to block release of the records, as had the circuit court and appeals court before it, saying Moustakis's legal claim contravened the plain reading of the law.

He then brought this case, based on a different legal argument.

In the first case, he claimed he was a "public employee" who has the right to request judicial review of records before they are released, but the court ruled that Moustakis was an elected official and not a public employee under the public records law.

In this case, Moustakis made a two-pronged argument, namely, that the balancing test used by the DOJ was arbitrary and also that the public records law is unconstitutional because it denies him the same right of judicial review that other public employees have, thereby denying him his rights of equal protection.

If the law bars elected officials from notification and judicial review of records set to be released, then that law violates his Bill of Rights access to petition a court for redress of grievances, Moustakis argued, and it treats him differently from other public employees who do have Woznicki rights, or rights to judicial review.

The appeals court rejected both arguments.

The details

In his complaint, Moustakis argued that the open records law, as applied by the DOJ to him, infringed upon his fundamental rights to access the court system and to privacy, and therefore denied him equal protection of the law under the Fourteenth Amendment, the court decision stated.

"With respect to Moustakis's constitutional claim, the DOJ asserted that rational basis review applied and the legislature could rationally conclude that elected officials should be treated differently than typical government employees, including those in the civil service," the decision stated.

The circuit court had agreed, wrote appeals judge Thomas Hruz in the decision for the court.

"While acknowledging that the statutory scheme provided different rights to elected officials than it did to some other public employees, the court nonetheless concluded that any such treatment was a rational legislative choice based upon the 'public platform or public access' that elected officials may enjoy," Hruz wrote.

What's more, Hruz continued, Moustakis did not contend that any statutory or common law exception to disclosure exists.

"In addition, and importantly, he has conceded ... that the DOJ's records custodian has complied with his duty to perform a balancing of interests to determine whether the records should be released," the decision stated. "As a result, it is undisputed that this balancing of interests ultimately led the records custodian to conclude that release was warranted subject to various redactions in the released records. Moustakis, however, challenges the manner and result of the DOJ custodian's weighing of interests."

Specifically, the decision states, he asserts that the custodian failed to consider factors that Moustakis considered relevant.

"Based on this assertion, Moustakis further argues the custodian 'acted outside of his authority in not considering all factors under the balancing test' and reached an arbitrary result," the decision states. "Essentially, Moustakis argues the DOJ records custodian's balancing of interests was simply wrong as a matter of law because any such balancing clearly favored withholding the records, or at a minimum the balancing was incomplete."

The court rejected Moustakis's arguments.

"As an initial matter, he cannot show he has a clear legal right to the relief he seeks, which is necessary for mandamus to issue," the decision states. "Again, he essentially accuses the DOJ records custodian of abdicating his statutory duty to properly apply the public interest balancing test when determining whether to release the records. As we explain, however, Moustakis has provided no authority demonstrating that a records custodian must perform the balancing in a particular manner - including his or her reaching out to the records subject for input on the release decision - or to reach a particular result."

Indeed, Hruz wrote, Moustakis's arguments run counter to the very purpose of the public records law.

"Moustakis attempts to argue around the general unavailability of mandamus relief in this context by asserting that the DOJ's records custodian reached an arbitrary decision," the decision stated. "In his view, the custodian conducted an 'arbitrary' balancing test because the custodian redacted some, but not all, 'untrue' statements about Moustakis in the records planned for release."

But Moustakis provided no authority or cogent rationale for the proposition that only matters within public records that are verifiably true or corroborated are suitable for release, Hruz wrote.

"To the contrary, the public records law does not contain any blanket exception to disclosure for employee disciplinary or personnel records," the decision stated. "Disclosure is the norm regardless of whether the accusations of misconduct have been substantiated."

As to the particular balancing test, Hruz said the courts have noted that law enforcement officers should expect close public scrutiny - including the possibility that disciplinary records may be released to the public - and that "[t]he public interest in being informed both of the potential misconduct by law enforcement officers and of the extent to which such misconduct was properly investigated is particularly compelling."

"Notably, Moustakis has already presented the argument that public policy does not favor the release of uncorroborated or untrue accusations against a public official, including a district attorney," the decision stated. "Our supreme court considered and rejected that argument in favor of the general rule of disclosure."

Given that analysis of the statutory framework, the court found Moustakis's legal argument concerning the "arbitrariness" of the DOJ's balancing test to lack merit.

In sum, the appeals court found that all of the following were true in the case: The Legislature has prescribed a presumption in favor of disclosure; the fact that an allegation has been found to be unsubstantiated is not a recognized categorical exception to disclosure; and it is undisputed the DOJ's records custodian had, in fact, applied the public interest balancing test to determine whether to release the records and whether to do so with certain redactions, all consistent with his statutory authority.

Equal protection

Moustakis also challenged the constitutionality of the public records law, contending that the Legislature impermissibly distinguished between publicly employed records subjects by permitting some to maintain an action for prerelease judicial review of the release decision, while others are merely allowed to augment the record with written comments and documentation selected by the records subject.

Moustakis claimed that classification violated his constitutional right to equal protection of the laws, the appeals court observed.

For one thing, Moustakis argued that the law curbs his fundamental right to access the courts, Hruz wrote. For another, he argued that the statute restricted his fundamental right to privacy.

The court rejected both arguments.

"Moustakis correctly observes that the right to access the courts to obtain adequate, effective, and meaningful review is guaranteed by the First and the Fourteenth Amendments," the decision states. "However, this right exists only 'where the claim has a 'reasonable basis in fact or law.' Our supreme court has already concluded that Moustakis does not have a viable statutory claim for prerelease judicial review of the records the DOJ has compiled for release."

Because the "right" Moustakis seeks to vindicate is not recognized at law, the court determined, the law does not impede his right to access the courts.

According to Moustakis, Hruz wrote, the public records law also impacts his fundamental right to privacy.

"Moustakis contends the statute affects two aspects of his privacy interests: his 'individual interest in avoiding disclosure of personal matters,' and his 'right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy,'" Hruz wrote. "In Moustakis's view, although the DOJ's investigation into his conduct did not violate these constitutional structures, 'the subsequent decision to release the [unsubstantiated] allegations made against [him] ... [is] an act of defamatory harm to Moustakis, contrary to his right to be let alone.'"

But, the court found, circumscribing prerelease judicial review of the DOJ's decision to release public records regarding its investigation of an elected official does not inherently place unnecessary or unwarranted public attention on recognized liberty interests like the rights to marry, to parent, or to prevent governmental intrusion into one's intimate relationships.

"In invoking the phrase 'an act of defamatory harm,' Moustakis again appears to be appealing to the notion that the records should not be released because of their purported falsity, suggesting that their release could damage his standing in the community," Hruz wrote. "However, any harm or injury to a person's reputational interest, even when inflicted by an officer of the state, 'does not result in a deprivation of any 'liberty' or 'property' recognized by state or federal law.' Moustakis's resort is to tort law if he believes he has been damaged as a result of one or more false allegations, assuming he could prove the elements of any such cause of action."

In any event, Hruz wrote, the court agreed with the DOJ that the case was not even a close call, especially his contention that excluding elected state officials such as him from the right to judicial review violated equal protection.

"To the contrary, there are ample rational reasons why the Legislature may have desired to exclude elected public officials from the scope of the exceptions to prerelease judicial review identified in [the law]," Hruz wrote. "As the DOJ notes, excluding such officials is consistent with the general purpose of the public records law, which is to provide the public with 'the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.'"

In addition, Hruz wrote, quoting a previous decision, case law recognizes that those who willingly put themselves forward into the public arena, and who accept publicly conferred benefits after election to public office, are legitimately much more subject to reasonable scrutiny and exposure than a purely private individual.

"Additionally, given their platform, elected public officials are better able to defend their conduct to the public than a typical government employee," the decision stated.

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