                                                           2016 WI 42

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:                 2014AP1853
COMPLETE TITLE:           Albert D. Moustakis,
                                     Plaintiff-Appellant-Petitioner,
                               v.
                          State of Wisconsin Department of Justice,
                                     Defendant-Respondent,
                          Steven M. Lucareli,
                                     Intervenor.

                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                           (Reported at 364 Wis. 2d 740, 869 N.W.2d 788)
                                     (Ct. App. 2015 – Published)
                                       PDC. No: 2015 WI App 63

OPINION FILED:            May 20, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:            February 4, 2016

SOURCE OF APPEAL:
   COURT:                 Circuit
   COUNTY:                Lincoln
   JUDGE:                 Jay R. Tlusty

JUSTICES:
   CONCURRED:
   CONCURRED/DISSENTED:   ROGGENSACK, C. J. concurs and dissents, joined
                          by ZIEGLER, J. and GABLEMAN, J.
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the plaintiff-appellant-petitioner, there were briefs
by Benjamin J. Krautkramer and Swid Law Offices, LLC, Mosinee,
and oral argument by Scott A. Swid.




       For the defendant-respondent, the cause was argued by Brian
Keenan, assistant attorney general, with whom on the brief was
Brad D. Schimel, attorney general.
                                                                                 2016 WI 42
                                                                         NOTICE
                                                           This opinion is subject to further
                                                           editing and modification.   The final
                                                           version will appear in the bound
                                                           volume of the official reports.
No.    2014AP1853
(L.C. No.    2014CV41)

STATE OF WISCONSIN                                    :             IN SUPREME COURT

Albert D. Moustakis,

              Plaintiff-Appellant-Petitioner,

      v.
                                                                              FILED
State of Wisconsin Department of Justice,
                                                                         MAY 20, 2016
              Defendant-Respondent,
                                                                            Diane M. Fremgen
Steven M. Lucareli,                                                      Clerk of Supreme Court


              Intervenor.




      REVIEW of a decision of the Court of Appeals                           Affirmed and

cause remanded.


      ¶1      SHIRLEY    S.    ABRAHAMSON,       J.        This    is    a   review      of    a

published      decision       of    the    court      of     appeals,        Moustakis        v.

Wisconsin      Department          of     Justice,        2015      WI    App      63,     364

Wis. 2d 740, 869 N.W.2d 788, affirming an order of the Circuit

Court for Lincoln County, Jay R. Tlusty, Judge.

      ¶2      The circuit court dismissed an action brought by Vilas
County      District     Attorney       Albert     Moustakis         under      Wis.     Stat.
                                                                          No.    2014AP1853



§ 19.356(4)         (2013-14)1        seeking     to     restrain       the     Wisconsin

Department      of     Justice    from       releasing       records    pertaining      to

Moustakis      in     response    to     a    public     records       request    by   The

Lakeland Times, a newspaper located in Minocqua, Wisconsin.                            The

court of appeals affirmed the order of the circuit court.

     ¶3        This review raises a single question that was well-

stated    by    the    court     of    appeals:     Is   a     district    attorney     an

"employee" as that term is used in Wis. Stat. § 19.356(2)(a)1.

and defined in § 19.32(1bg) such that the district attorney may

maintain an action for notice and pre-release judicial review of

records under § 19.356(4)?2



     1
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
     2
       Moustakis v. Wis. DOJ,                     2015    WI    App     63,     ¶11,   364
Wis. 2d 740, 869 N.W.2d 788.

     The parties and the circuit court and court of appeals
framed the issue presented as a question of standing, that is,
does Moustakis have standing to bring his action? Phrasing the
issue as one of standing is asking, as we do, whether Moustakis
falls within the ambit of the provisions of the public records
law granting a record subject notice of the decision of an
authority to provide a requester access to records and pre-
release judicial review of the decision to provide access. See
William A. Fletcher, The Structure of Standing, 98 Yale L.J.
221, 236 (1988) ("'When a plaintiff seeks standing on the basis
that an interest is protected by statute, the question whether
that interest is legally protected for standing purposes is the
same as the question whether plaintiff (assuming his or her
factual allegations are true) has a claim on the merits.'")
(quoting Stephen G. Breyer & Richard B. Stewart, Administrative
Law and Regulatory Policy: Problems, Text, and Cases 1094 (2d
ed. 1985) (footnote omitted)).

                                                                              (continued)
                                              2
                                                                  No.      2014AP1853



     ¶4     To answer this question, we take the same approach as

the court of appeals and the parties, namely, we analyze the

interconnecting provisions of the public records law, Wis. Stat.

§§ 19.21-.39, and apply them to the fact situation at hand.                       The

Wisconsin   public    records    law    is    not     always   easy   to   read    or

decipher.    Multiple provisions of the public records law cross-

reference each other.           Nevertheless, by analyzing the public

records law step by step, we can resolve the present case.                         To

enable easier reference to the text of the public records law as

we discuss the cross-references, we have attached the text of

the relevant statutes and constitutional provisions as Appendix

A.

     ¶5     After    analyzing    the        public    records    law      and    the

parties' arguments, we conclude, as did the court of appeals,

that a district attorney holds a state public office and is not

an "employee" within the meaning of Wis. Stat. §§ 19.32(1bg) and

19.356(2)(a)1.      Because the records at issue do not fall within



     In other words, whether Moustakis fits within the group of
individuals to whom the public records law grants notice and an
opportunity for pre-release judicial review is a matter of
statutory interpretation. Standing and statutory interpretation
are distinct and should not be conflated. In the instant case,
it is easier to frame the issue as a matter of statutory
interpretation rather than as a matter of standing.          See
Wisconsin's Envt'l Decade, Inc. v. Pub. Serv. Comm'n of Wis., 69
Wis. 2d 1, 11, 230 N.W.2d 243 (1975) (describing cases resolved
"on the notion that the statute relied upon by the person
seeking review did not give legal recognition to the interest
asserted" as "rest[ing] upon statutory interpretation rather
than the law of standing itself.").


                                        3
                                                                 No.    2014AP1853



the narrow exception to the general rule that a "record subject"

is not entitled to notice or pre-release judicial review of the

decision of an authority to provide access to records pertaining

to that record subject, Moustakis may not maintain an action

under    Wis.    Stat.    § 19.356(4)    to   restrain   the    Department     of

Justice    from     providing      The   Lakeland     Times    access    to   the

requested records.

     ¶6     Accordingly, we affirm the decision of the court of

appeals    and    the    circuit   court's    order   dismissing   Moustakis's

action under the Wisconsin public records law.

     ¶7     We remand the cause to the circuit court for further

proceedings consistent with this opinion to consider Moustakis's

amended complaint alleging two additional causes of action, the

first seeking a writ of mandamus and the second asserting a

challenge to the constitutionality of Wis. Stat. § 19.356.                    The

circuit court stayed proceedings on these two causes of action,3

and these two causes of action are not at issue in this court.4

                                         I
     ¶8     For purposes of this review, the facts and procedural

history are not in dispute.

     ¶9     In July 2013, The Lakeland Times sent a public records

request to the Department of Justice regarding Moustakis.                     The


     3
       This court granted Moustakis's petition for review but did
not grant Moustakis's petition that the court accept an original
action to decide the second and third causes of action.
     4
         Moustakis, 364 Wis. 2d 740, ¶7 n.5.


                                         4
                                                                    No.     2014AP1853



request    sought    records     of    any    "complaints    or    investigations

regarding    Vilas    County     District      Attorney     Al     Moustakis"     and

records "regarding any investigation of [Moustakis's] conduct or

handling of cases while district attorney."                      The request also

sought    "information       related    to    complaints    and    investigations

regarding Mr. Moustakis that were completed or ended without any

action    taken    against    him[,]"    as    well   as    "any   communications

between Mr. Moustakis and [Department of Justice] since he took

office in 1995."

    ¶10     The    public     records    custodian     of    the    Department     of

Justice referred the request to the Department's Division of

Criminal Investigation and Division of Legal Services to prepare

a response.        The staff collected and reviewed the responsive

documents    and    made    numerous    redactions.         The    public    records

custodian    approved      the   proposed      response     for    release.       The

response    contained        records    relating      to    complaints       against

Moustakis that the Department of Justice ultimately found to be

unsubstantiated.
    ¶11     The    public     records    custodian     at    the    Department     of

Justice left Moustakis a telephone message advising him that the

Department would be releasing records responsive to The Lakeland

Times' public records request.                The Department also mailed a

copy of the approved response to Moustakis.

    ¶12     Moustakis       received    the     redacted     records      from    the

Department of Justice on or about March 5, 2014, more than seven

months after The Lakeland Times made its public records request.
The Lakeland Times did not receive the redacted records at the
                                         5
                                                                         No.     2014AP1853



same time that Moustakis received them.                     The Department asserts

that       it   provided    Moustakis      with    notice     and   a    copy     of   the

response as a professional courtesy and that it was not required

to do so by law.5

       ¶13      Moustakis notified the Department of Justice (through

his    counsel)       of   his    intent   to     seek   judicial       review    of   the

Department's         decision     to    release    the   requested       records.       On

March 10, 2014, Moustakis filed this action under Wis. Stat.

§ 19.356(4) to enjoin the Department from releasing the records

at issue.

       ¶14      The Department moved to dismiss the action, arguing,

as we explained above, that Moustakis was not an "employee" as

that term is defined in Wis. Stat. § 19.32(1bg) and that, as a

result, Moustakis may not maintain an action under § 19.356(4)

to restrain the Department from providing access to the records

relating        to   him   that   are    responsive      to   The   Lakeland       Times'

public records request.




       5
       The Department of Justice appears to argue it was not
required to provide notice to Moustakis under Wis. Stat.
§ 19.356(2)(a)1.   Other statutory notice requirements exist.
See Wis. Stat. § 19.356(9)(a)-(b).     Moustakis relies on Wis.
Stat. § 19.356(9)(a) and (b) to bolster his interpretation of
Wis. Stat. § 19.356(2)(a)1. and the definition of "employee" in
Wis. Stat. § 19.32(1bg).   He sometimes seems to assert that he
should have received notice under Wis. Stat. § 19.356(9)(a) and
(b) and an opportunity to augment the record. Moustakis's basic
and repeated position, however, is that he does not want release
of the records at all.    We address these claims more fully in
¶¶50-62.


                                            6
                                                                            No.   2014AP1853



       ¶15   The circuit court dismissed Moustakis's action on July

1, 2014, about one year after The Lakeland Times made its public

records request to the Department of Justice, concluding that

Moustakis      was     not     an    employee        as   defined      in     Wis.       Stat.

§ 19.32(1bg) and as a result may not maintain an action under

§ 19.356(4).         The court of appeals affirmed the circuit court's

order dismissing the action.                  Moustakis sought review in this

court.

                                             II

       ¶16 The interpretation and application of statutes present

questions of law that this court determines independently of the

circuit court and court of appeals while benefiting from the

analyses     of    these     courts.         Journal      Times   v.     Police      &    Fire

Comm'rs Bd., 2015 WI 56, ¶42, 362 Wis. 2d 577, 866 N.W.2d 563.

       ¶17   To determine the meaning of a statute, we look to the

language of the statute.              Schill v. Wis. Rapids Sch. Dist., 2010

WI 86, ¶49, 327 Wis. 2d 572, 786 N.W.2d 177.                        "Each word should

be looked at so as not to render any portion of the statute
superfluous."              Hubbard    v.    Messer,       2003    WI     145,     ¶9,      267

Wis. 2d 92, 673 N.W.2d 676 (note with citations omitted).

       ¶18   "[A]scertaining plain meaning requires us to do more

than   focus      on   a    single,       isolated    sentence      or   portion         of   a

sentence."        Teschendorf v. State Farm Ins. Cos., 2006 WI 89,

¶12,   293   Wis. 2d 123,           717    N.W.2d 258     (citation      and      quotation

marks omitted).        Instead, "[w]e consider the meaning of words in

the context in which they appear."                    Force ex rel. Welcenbach v.
Am. Family Mut. Ins. Co., 2014 WI 82, ¶30, 356 Wis. 2d 582, 850
                                              7
                                                                No.   2014AP1853



N.W.2d 866.      "We   favor    an   interpretation    that     fulfills     the

statute's   purpose."     State      v.   Hanson,   2012   WI   4,    ¶17,   338

Wis. 2d 243, 808 N.W.2d 390 (citation omitted).

                                     III

    ¶19     We   adopt    the    organization,       statutory        analysis,

reasoning, and, at times, language of the decision of the court

of appeals in our interpretation of the public records law and

application of the law to the parties' arguments.                The court of

appeals organized its analysis of the statutes as follows, and

so do we:

    A. The public records law embodies the fundamental concept

        in Wisconsin of transparent government.                 This concept

        guides our interpretation of the provisions of the public

        record law.6

    B. The general rule is that no "authority" is required to

        notify a record subject prior to providing to a requester

        access to a record containing information pertaining to

        that     record    subject.          Wis.     Stat.      § 19.356(1).
        Furthermore, "no person is entitled to judicial review of

        the decision of an authority to provide a requester with

        access to a record."          § 19.356(1).     The public records

        law contains an exception to this general rule for three

        narrow categories of records.            § 19.356(2)(a)1.-3.          If

        the record at issue falls in one of these three narrow


    6
        See infra, ¶¶21-23; Moustakis, 364 Wis. 2d 740, ¶¶12-13.


                                      8
                                                               No.       2014AP1853



    categories of records, a "record subject" may maintain an

    action     under    § 19.356(4)          seeking   a    court    order      to

    restrain    the    authority        from    providing     access       to   the

    requested record.7

C. The only one of these three exceptions that Moustakis

    claims pertains to him is the one set forth in Wis. Stat.

    § 19.356(2)(a)1.         This       provision      applies      to     certain

    records pertaining to an "employee."                   The application of

    § 19.356(2)(a)1. to Moustakis's records turns on whether

    Moustakis is an "employee," as defined in § 19.32(1bg).

       1. Moustakis is not an employee within the first part

         of    the     definition       of     "employee"     in    Wis.    Stat.

         § 19.32(1bg).8        He       holds    the   elective      office     of

         Vilas County District Attorney.

       2. Moustakis is not an employee within the second part

         of    the     definition       of     "employee"     in    Wis.    Stat.

         § 19.32(1bg).       Moustakis, as Vilas County District

         Attorney, is not "employed by an employer other than
         an authority."9

D. Interpreting the definition of "employee" in the public

    records law as excluding a state public office does not




7
    See infra, ¶¶24-28; Moustakis, 364 Wis. 2d 740, ¶¶13-14.
8
    See infra, ¶¶34-36; Moustakis, 364 Wis. 2d 740, ¶¶15-17.
9
    See infra, ¶¶37-49; Moustakis, 364 Wis. 2d 740, ¶¶18-20.


                                    9
                                                                          No.   2014AP1853



            render       the     term   "employee"        used     in      Wis.        Stat.

            § 19.356(9)(a) mere surplusage.10

       ¶20       Thus, because the records at issue do not fall within

the narrow category described in Wis. Stat. § 19.356(2)(a)1.,

Moustakis may not maintain an action under § 19.356(4) seeking a

court order restraining the Department of Justice from providing

access to the requested record.11

                                              A

       ¶21       We begin with the following legislative declaration:

"Except as otherwise provided by law, any requester has a right

to inspect any record."             Wis. Stat. § 19.35(1)(a).

       ¶22       The    legislature     has       explicitly     stated     the      public

policy      as    follows:      "[I]t   is . . . the      public    policy        of    this

state 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."                               Wis.

Stat. § 19.31.

       ¶23       In light of this policy, the legislature has stated
that    the      public       records   law    "shall     be   construed        in     every

instance         with     a    presumption         of   complete    public        access,

consistent        with    the    conduct      of    governmental    business.            The

denial of public access generally is contrary to the public




       10
            See infra, ¶¶50-59; Moustakis, 364 Wis. 2d 740, ¶¶21-23.
       11
            See infra, ¶¶60-61; Moustakis, 364 Wis. 2d 740, ¶¶13-15.


                                              10
                                                                     No.       2014AP1853



interest, and only in an exceptional case may access be denied."

Wis. Stat. § 19.31.12

                                             B

     ¶24     Under the public records law, the general rule is that

a   record    subject   is       not    entitled    to    notice     prior        to   an

"authority" granting a requester access to a record containing

information    pertaining        to    the    "record    subject."         Wis.    Stat.

§ 19.356(1).13     Furthermore, subject to three narrow exceptions,

"no person is entitled to judicial review of the decision of an

authority    to   provide    a    requester       with   access    to      a   record."

§ 19.356(1).



     12
       Moustakis argues that public policy does not favor the
release of the uncorroborated or untrue accusations contained in
the records at issue. The public policy declared by the
legislature, however, favors disclosure as a general rule,
rather than nondisclosure.

     The parties acknowledge that the Department of Justice
sought to balance "the public interest in disclosure against the
public interest in non-disclosure" when deciding whether to
release the records at issue and redacted materials from the
record. See Milwaukee Journal Sentinel v. Wis. Dep't of Admin.,
2009 WI 79, ¶56, 319 Wis. 2d 439, 768 N.W.2d 700 (discussing the
balancing test). Because we conclude that Moustakis is not
entitled to pre-release judicial review of the records at issue
and we do not have the records at issue (that is, we have
neither the original records nor the redacted records), we do
not review the Department's decision to release the redacted
records.
     13
       Some records that are subject to disclosure contain
"personally identifiable information" about certain individuals.
These individuals are known as "record subjects."     Wis. Stat.
§ 19.32(2g).


                                             11
                                                              No.   2014AP1853



      ¶25    The legislature excluded three narrow categories of

records from these general rules that no authority is required

to notify a record subject prior to providing to a requester

access to a record containing information pertaining to that

record subject and that no person is entitled to judicial review

of the decision of an authority to provide a requester with

access to a record.       See Wis. Stat. § 19.356(2)(a)1.-3.

      ¶26    An "authority"14 intending to release records falling

within one of these        three narrow      categories    of records must

provide     notice   to   the   record    subject   before   releasing     the

records and the record subject has the opportunity to seek pre-

release judicial review.        Wis. Stat. §§ 19.356(2)(a), 19.356(4).

The   record   subject    may   commence   an   action    (within   the   time

specified in the public records law) seeking a court order "to


      14
       An "authority" is defined in Wis. Stat. § 19.32(1) as
follows:

      "Authority" means any of the following having custody
      of a record: a state or local office, elective
      official,    agency,   board,  commission,   committee,
      council, department or public body corporate and
      politic created by the constitution or by any law,
      ordinance, rule or order; a governmental or quasi-
      governmental corporation except for the Bradley center
      sports   and   entertainment  corporation;  a   special
      purpose district; any court of law; the assembly or
      senate; a nonprofit corporation which receives more
      than 50% of its funds from a county or a municipality,
      as defined in s. 59.001 (3), and which provides
      services related to public health or safety to the
      county or municipality; a university police department
      under s. 175.42; or a formally constituted subunit of
      any of the foregoing.


                                     12
                                                                      No.        2014AP1853



restrain the authority from providing access to the requested

record."       Wis. Stat. § 19.356(3), (4).

       ¶27     The    three   exceptions       granting     rights    to     a     record

subject are set forth in Wis. Stat. § 19.356(2)(a)1., 2., and 3.

These       three    provisions   were    intended     to     limit   this        court's

holdings       in     Woznicki    v.     Erickson,      202     Wis. 2d 178,           549

N.W.2d 699 (1996), and Milwaukee Teachers' Education Ass'n v.

Milwaukee       Board    of   School     Directors,       227   Wis. 2d 779,           596

N.W.2d 403 (1999).15          In Woznicki and Milwaukee Teachers, this

court held that public employees were entitled to notice and to

seek    pre-release      judicial      review   of    the   response        to    records

requests pertaining to them.16            By enacting § 19.356(2)(a)1., 2.,

and 3., the legislature sought to limit the rights afforded by

these cases "only to a defined set of records pertaining to

employees residing in Wisconsin."                    2003 Wis. Act. 47, Joint

Legis. Council Prefatory Note.17
       15
       See Local 2489, AFSCME v. Rock Cnty., 2004 WI App 210,
¶2, 277 Wis. 2d 208, 689 N.W.2d 644 (stating that 2003 Wis. Act
47 was enacted in response to Woznicki v. Erickson, 202
Wis. 2d 178, 549 N.W.2d 699 (1996), and Milwaukee Teachers'
Education Ass'n v. Milwaukee Board of School Directors, 227
Wis. 2d 779, 596 N.W.2d 403 (1999)).
       16
       See Milwaukee Teachers, 227 Wis. 2d at 797-98; Woznicki,
202 Wis. 2d at 195.
       17
        The court of appeals refers to the Prefatory Note to 2003
Wis. Act 47 by the Joint Legislative Council's Special Committee
on Review of the Open Records Law as confirming the court of
appeals' interpretation of the public records law. Legislative
history   may   be   consulted  to   confirm   a  plain   meaning
interpretation. Teschendorf v. State Farm Ins. Co., 2006 WI 89,
¶14, 293 Wis. 2d 123, 717 N.W.2d 258.


                                          13
                                                                      No.    2014AP1853



       ¶28   Thus, the exceptions in Wis. Stat. § 19.356(2)(a)1.,

2., and 3. are the only instances in which a record subject has

a     statutory    right     to    receive       notice    and    seek   pre-release

judicial review of a response to a public records request.

                                            C

       ¶29   Moustakis asserts that the records at issue fall into

one     of   these     three      narrow    exceptions,        namely,   Wis.     Stat.

§ 19.356(2)(a)1., that he is thus entitled to notice and pre-

release judicial review of the records pertaining to him, and

that he may commence an action seeking a court order to restrain

the Department of Justice from providing access to the requested

records.      This exception, § 19.356(2)(a)1., applies to a record

"containing information relating to an employee that is created

or    kept   by      the   authority       and   that     is   the   result      of   an

investigation into a disciplinary matter involving the employee

or       possible          employment-related             violation         by        the

employee . . . ."          Wis. Stat. § 19.356(2)(a)1. (emphasis added).

       ¶30   The     application      of    Wis.    Stat.      § 19.356(2)(a)1.        to
Moustakis's records turns on whether Moustakis is an "employee"

for purposes of that provision.

       ¶31   "Employee" is defined in Wis. Stat. § 19.32(1bg) as

"any individual who is employed by an authority, other than an

individual holding local public office or a state public office,

or any individual who is employed by an employer other than an

authority" (emphasis added).

       ¶32    Thus, Wis. Stat. § 19.32(1bg) creates two categories
of employees:         Individuals who are employed by an "authority"——a
                                            14
                                                                    No.    2014AP1853



category    narrowed    by    the    limiting      clause     excluding      persons

holding     local   public     office    or    a     state    public      office    as

employees——and those who are employed by an employer other than

an "authority."

      ¶33   As we previously stated, "authority" is defined in the

public records law.         See Wis. Stat. § 19.32(1).             The definition

of "authority" includes a vast number of governmental entities

"having custody of a record," including, as relevant here, "a

state or local office."

                                         1

      ¶34   Moustakis concedes, as he must, that he holds a state

office and that he is not an "employee" of an authority under

the first part of the definition of "employee" in Wis. Stat.

§ 19.32(1bg)    that   explicitly       excludes      from   the    definition      of

"employee" an individual holding a "state public office."

      ¶35   Analyzing the definition of "state public office" in

the public records law, we agree with Moustakis that he is not

an    "employee"    under    the     first    part    of     the   definition      of
"employee"     in   Wis.     Stat.    § 19.32(1bg).          An    individual      is

excluded as an employee under § 19.32(1bg) if he or she holds a

"state public office."          A "state public office" is defined in

§ 19.32(4).     This provision reveals that a "state public office"

has   the   meaning    given    in    § 19.42(13)       (with      exceptions      not

relevant in the instant case).                Reading § 19.42(13), we learn

that "state public office" includes "all positions identified

under s. 20.923(2) . . . ."             Section 20.923(2) contains a list
of "constitutional officers and other elected state officials."
                                        15
                                                                         No.        2014AP1853



Within that list, section 20.923(2)(j) refers specifically to "a

district attorney."

      ¶36     Moustakis, the Vilas County District Attorney, is thus

the holder of a "state public office" and does not qualify as an

"employee" under the first part of the definition of "employee"

set forth in § 19.32(1bg).

                                           2

      ¶37     Even though Moustakis holds a state public office, he

argues that he nevertheless qualifies as an "employee" under the

second   part    of    the    definition        of    "employee"        in   Wis.      Stat.

§ 19.32(1bg).         According to Moustakis, he is "employed by an

employer other than an authority," namely, he is employed by the

State of Wisconsin.

      ¶38     In Moustakis's view, the definition of "employee" in

Wis. Stat. § 19.32(1bg) is disjunctive and the two parts are not

connected.      Thus, even if Moustakis is not an "employee" under

the   first    part    of    the   definition        of    employee     in     Wis.    Stat.

§ 19.32(1bg),     he    argues      that   he    is       an   "employee"      under       the
second part of that definition.

      ¶39     Specifically,        Moustakis     asserts        that    he     is    not   an

"employee" of the Vilas County District Attorney's office, which

is identified as an "authority" under Wis. Stat. § 19.32(1).

Moustakis     contends       he    works   in    the      office   of    the        district

attorney but that the indicia of employment demonstrate that he

does not work for that office.              He asserts that he works for the

State of Wisconsin.           The State of Wisconsin is not specifically
mentioned in the definition of "authority."                            See     Wis. Stat.
                                           16
                                                                             No.   2014AP1853



§ 19.32(1).

      ¶40    Moustakis reasons that because he is employed by the

State of Wisconsin, which is not specifically identified as an

"authority" under Wis. Stat. § 19.32(1), he is an "employee"

under      the   second     part     of        the     definition      of     employee    in

§ 19.32(1bg).        He claims he is thus employed by an employer

other than an "authority."

      ¶41    Moustakis's interpretation of the second part of the

definition of "employee" is unpersuasive for several reasons.

      ¶42    Moustakis argues that he is an "employee" of the State

of    Wisconsin     by     relying        on     the       Black's     Law     Dictionary's

definition of "employer."            The word "employer" is not defined in

the     public    records     law.             Black's      Law      Dictionary     defines

"employer" as "one who controls and directs a worker . . . and

who pays the worker's salary or wages."18                      Moustakis reasons that

because no person within the Vilas County District Attorney's

Office has the capacity to direct, control, or pay him, his

employer is the State of Wisconsin                         rather than his elective
office.

      ¶43    A significant difficulty with Moustakis's argument is

that although the statutory definition of "authority" does not

explicitly       include    the    State,            the    statutory        definition   of


      18
       The complete Black's Law Dictionary definition of
"employer" is:   "A person, company, or organization for whom
someone works; esp., one who controls and directs a worker under
an express or implied contract of hire and who pays the worker's
salary or wages." Black's Law Dictionary (10th ed. 2014).


                                               17
                                                                        No.       2014AP1853



"authority"     does   include      a       "state   or    local    office"       and    "an

elective official."          See    Wis. Stat.            § 19.32(1).         A district

attorney   in    Wisconsin     is       a       "state    office"    and     a    district

attorney is also an elective official.

     ¶44   Moustakis tries to distinguish between holding a state

public office and being employed by that office.                        He points out

that his employment derives from the Wisconsin constitution, as

well as the salary-fixing statutes that classify him as holding

a "state public office."19          As a result, he concludes that he is

an "employee" of the State of Wisconsin.

     ¶45   We agree with the court of appeals that Moustakis's

distinction     between   holding           a    state   public     office       and   being

employed by a state public office is unsupported by law, creates

confusion, is contrary to any reasonable reading of the public

records law, and is unpersuasive:

           The distinction Moustakis seeks to draw
           between "holding" a state public office and
           being "employed" by a state public office is
           entirely of his making.       Moustakis is a
           district   attorney,   which,   as   we   have
           indicated, is a "state public office" under
           the statutes Moustakis cites.         A state
           office is an "authority" as that term is
           defined in § 19.32(1), and, but for the
           exclusionary     clause     in      Wis. Stat.
           § 19.32(1bg), Moustakis would qualify as an
           "employee" under the first category as an
           "employee" employed by an "authority." That

     19
       Moustakis   cites  Wisconsin   Constitution  Article  VI,
Section 4; Wis. Stat. § 19.32(4); Wis. Stat. § 19.42(13)(c); and
Wis. Stat. § 20.923(2)(j) to buttress his claim that he is an
"employee" of the State of Wisconsin.


                                                18
                                                                               No.    2014AP1853


              Moustakis would otherwise qualify as an
              "employee" of an "authority" means that he
              cannot also be employed by "an employer
              other than an authority."          Moustakis's
              contrived argument fails to account for the
              straightforward notion that he both holds
              the state office of district attorney and is
              an   employee  of   that   office;   the   two
              capacities are not mutually exclusive.
Moustakis, 364 Wis. 2d 740, ¶20.

       ¶46    In    sum,       Moustakis     contends         that    he     holds    a   "state

public office" and that under the second part of the definition
of "employee" in Wis. Stat. § 19.32(1bg) he is an employee of

the State of Wisconsin, which is not mentioned in the definition

of "authority."

       ¶47    We     conclude,        as    did       the    court     of     appeals,     that

Moustakis      is       not    an   employee      under      Wis.     Stat.    § 19.32(1bg).

Under a plain reading of the text of the first part of the

definition         of     "employee"        under           Wis.     Stat.     § 19.32(1bg),

Moustakis qualifies as an employee of an authority.

       ¶48    Because Moustakis is an employee of an authority under

the text of the first part of the definition of "employee" in

Wis.   Stat.        § 19.32(1bg),          Moustakis         cannot    be     an     individual
employed by an employer other than an authority under the second

part of the definition of "employee."                              The two parts of the

definition         of     "employee"        in        Wis.    Stat.     § 19.32(1bg)         are

interconnected.               Although Moustakis is excluded from the first

part of the definition of "employee" in Wis. Stat. § 19.32(1bg)

by   the     statutory         language    excluding          an   individual        holding   a




                                                 19
                                                                  No.    2014AP1853



state public office as an employee,20 the first part of the

definition of "employee" makes clear that Moustakis is not an

individual    employed     by   an    employer    other    than   an    authority.

Accordingly, Moustakis is not employed by an employer other than

an     authority   under   the       second    part   of   the    definition    of

"employee" in § 19.32(1bg).

       ¶49   We agree with the Department of Justice that the plain

language, context, structure, and the interrelated provisions of

the public records law all show that Moustakis is employed by an

"authority" and that he is not an employee under Wis. Stat.

§ 19.31(1bg).

                                          D

       ¶50   Moustakis argues that interpreting the term "employee"

in Wis. Stat. § 19.32(1bg) to exclude anyone holding a "state

public office," would render the term "employee" in Wis. Stat.

§ 19.356(9) mere surplusage.

       ¶51   We    disagree      with     Moustakis.         Interpreting      the

definition of "employee" in the public records law to exclude
individuals holding "state public office" does not render the

term    "employee"    as   used      in   Wis.   Stat.     § 19.356(9)(a)      mere

surplusage.


       20
       Because we decide the instant case based on the
definition of "employee," we need not, and do not, address the
Department of Justice's argument that the documents at issue
were not the result of an investigation into a disciplinary
matter involving the employee and therefore do not fit within
Wis. Stat. § 19.356(2)(a)1.


                                          20
                                                          No.    2014AP1853



    ¶52   Section 19.356(9) states (with emphasis added):

    (a)   Except as otherwise authorized or required by
          statute, if an authority decides under s. 19.35
          to   permit    access  to   a  record   containing
          information relating to a record subject who is
          an officer or employee of the authority holding a
          local public office or a state public office, the
          authority shall, before permitting access and
          within 3 days after making the decision to permit
          access, serve written notice of that decision on
          the record subject, either by certified mail or
          by personally serving the notice on the record
          subject.    The notice shall briefly describe the
          requested record and include a description of the
          rights of the record subject under par. (b).

    (b)   Within 5 days after receipt of a notice under
          par. (a), a record subject may augment the record
          to   be   release  with   written  comments   and
          documentation selected by the record subject.
          Except as otherwise authorized or required by
          statute, the authority under par. (a) shall
          release the record as augmented by the record
          subject.
    ¶53   Wisconsin Stat. § 19.356(9)(a) and (b) create a notice

requirement distinct from the notice provided for in Wis. Stat.

§ 19.356(2)(a)1.   Under Wis. Stat. § 19.356(9)(a) and (b), when

an authority decides to permit access to a record containing
information relating to "a record subject who is an officer or

employee of the authority holding a local public office or state

public office, the authority shall" provide written notice to

the record subject and an opportunity to augment the record to

be released.

    ¶54   Moustakis   sometimes   seems   to   assert   that    he   should

have received notice under Wis. Stat. § 19.356(9)(a) and (b) and
an opportunity to augment the record.           Moustakis's basic and


                                  21
                                                                   No.   2014AP1853



repeated position, however, is that he does not want release of

the    records     at    all.      Moustakis        relies    on     Wis.     Stat.

§ 19.356(9)(a) and (b) chiefly to bolster his argument that he

is an "employee" as defined in Wis. Stat. § 19.32(1bg) and that

none of the records at issue should be released.

       ¶55    Moustakis reasons that, based on the language of Wis.

Stat. § 19.356(9)(a), the term "employee" in the statutes must

include some individuals holding state public office.                    Moustakis

asserts that under the usual rules of statutory interpretation,

the statutory definition of "employee" in § 19.32(1bg) should be

read into § 19.356(9)(a).         According to Moustakis, if "employee"

as defined in § 19.32(1bg) does not include an individual who

holds state or local public office, the term "employee" in Wis.

Stat. § 19.356(9)(a) has no meaning.

       ¶56    Moustakis's reasoning has superficial appeal.                 But, as

the court of appeals noted, Moustakis's attempt to insert the

definition of the term "employee" into Wis. Stat. § 19.356(9)(a)

"creates a befuddling mess of that statute."21
       ¶57    We agree with the court of appeals' interpretation of

Wis.    Stat.    § 19.356(9)(a).       The    court   of     appeals'     approach

appropriately harmonizes both statutes.                The use of the word

"employee" in Wis. Stat. § 19.356(9) does not change the proper

interpretation      of   that   term   in    Wis.   Stat.    §§ 19.32(1bg)      and

19.356(2)(a)1.


       21
            Moustakis, 364 Wis. 2d 740, ¶23.


                                       22
                                                                          No.     2014AP1853



     ¶58       The phrase in Wis. Stat. § 19.356(9)(a) referring to

"a record subject who is an officer or employee of the authority

holding    a    local    public     office       or   a    state    public      office"   is

intended to be read as a restrictive clause modifying the term

"record subject."22         Thus, an individual who is not an "employee"

under Wis. Stat. § 19.32(1bg) may still qualify as an "officer

or employee of the authority holding a local public office or

state public office" under Wis. Stat. § 19.356(9)(a).

     ¶59       The court of appeals explains Wis. Stat.

§ 19.356(9)(a) as follows:

     [W]e conclude the phrase "who is an officer or
     employee of the authority holding a local record [sic]
     office or state public office" was intended to be read
     as one restrictive clause modifying the term "record
     subject" in § 19.356(9)(a).    Contrary to Moustakis's
     argument, this interpretation of § 19.356(9)(a), which
     is based on a straightforward, common sense reading of
     that statute, is fully consistent with § 19.32(1bg) in
     that both statutes recognize there are individuals who
     are employed by an "authority" and who also hold a
     local or state public office.       In this sense, an
     individual who is not an "employee" under § 19.32(1bg)
     may nonetheless qualify as an "officer or employee of
     the authority holding a local public office or state
     public office" under § 19.356(9)(a).23
     ¶60       This interpretation of Wis. Stat.                     § 19.356(9)(a) is

consistent      with     Wis.     Stat.    §     19.32(1bg)        and   construes     each

provision      in   a    manner    that    serves         each   provision's      purpose.

Accordingly,        we    conclude        that      the    inclusion      of     the   term


     22
          Moustakis, 364 Wis. 2d 740, ¶23.
     23
          Moustakis, 364 Wis. 2d 740, ¶23.


                                               23
                                                                          No.     2014AP1853



"employee"    in     Wis.      Stat.      § 19.356(9)(a)        does     not    alter       the

definition of "employee" in Wis. Stat. § 19.32(1bg).

       ¶61   Moustakis         sometimes         appears       to    argue      that        the

Department    of     Justice       violated       his    rights     to   notice       and    an

opportunity        to       augment       the       record       under        Wis.      Stat.

§ 19.356(9)(a) and (b).                Moustakis does not ask, however, for

any relief for any violation of Wis. Stat. § 19.356(9)(a) and

(b).     Aside from Moustakis's argument about the relationship

between Wis. Stat. § 19.356(9)(a) and (b) and the definition of

"employee"     in       Wis.     Stat.     §§ 19.32(1bg)         and     19.356(2)(a)1.,

Moustakis's limited discussion of Wis. Stat. § 19.356(9)(a) and

(b) may be read as part of his claim that Wis. Stat. § 19.356,

as     interpreted          by      the         Department          of    Justice,          is

unconstitutional.           That claim remains pending in the circuit

court.

       ¶62   Moustakis's         focus     in     this   court      is   on    pre-release

judicial review under Wis. Stat. § 19.356(2)(a)1. and (4) of the

Department of Justice's decision to provide records responsive
to The Lakeland Times' request.                   Moustakis's goal in this court

is an order restraining the Department of Justice from providing

access to the requested records.                    Considering the arguments of

the    parties,      we     need    not     and     do   not     address       Wis.     Stat.

§ 19.356(9)(a) and (b) further.

                                          * * * *

       ¶63   After        analyzing       the     public     records      law     and       the

parties' arguments, we conclude, as did the court of appeals,
that a district attorney holds a state public office and is not
                                             24
                                                                    No.     2014AP1853



an "employee" within the meaning of Wis. Stat. § 19.32(1bg) and

19.356(2)(a)1.     Because the records at issue do not fall within

the narrow exception to the general rule that a "record subject"

is not entitled to notice or pre-release judicial review of the

decision of an authority to provide access to records pertaining

to that record subject, Moustakis may not maintain an action

under   Wis.    Stat.    § 19.356(4)     to    restrain     the    Department       of

Justice   from     providing       The   Lakeland        Times    access     to     the

requested records.

    ¶64    Accordingly, we affirm the decision of the court of

appeals   and    the    circuit    court's    order      dismissing    Moustakis's

action under the Wisconsin public records law.                     We remand the

cause for further proceedings.

    By    the    Court.–The       decision    of   the    court   of      appeals   is

affirmed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.




                                         25
                                                   No.   2014AP1853



     APPENDIX A: Relevant Statutes and Wisconsin Constitutional

                           Provisions

Wis. Stat. § 19.31 – Declaration of policy. In recognition of
     the fact that a representative government is dependent upon
     an informed electorate, it is declared to be the public
     policy of this state 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.    Further, providing persons
     with such information is declared to be an essential
     function of a representative government and an integral
     part of the routine duties of officers and employees whose
     responsibility it is to provide such information. To that
     end, ss. 19.32 to 19.37 shall be construed in every
     instance with a presumption of complete public access,
     consistent with the conduct of governmental business.   The
     denial of public access generally is contrary to the public
     interest, and only in an exceptional case may access be
     denied.

Wis. Stat. § 19.32 – Definitions.       As used in ss. 19.32 to
19.39:

    (1)    "Authority" means any of the following having custody
           of a record: a state or local office, elective
           official,   agency,  board,   commission,   committee,
           council, department or public body corporate and
           politic created by the constitution or by any law,
           ordinance, rule or order; a governmental or quasi-
           governmental corporation except for the Bradley
           center   sports  and   entertainment  corporation;   a
           special purpose district; any court of law; the
           assembly or senate; a nonprofit corporation which
           receives more than 50% of its funds from a county or
           a municipality, as defined in s. 59.001(3), and which
           provides services related to public health or safety
           to the county or municipality; a university police
           department under s. 175.42; or a formally constituted
           subunit of any of the foregoing.

                             . . . .

    (1bg) "Employee" means any individual who is employed by an
          authority, other than an individual holding local
          public office or a state public office, or any

                               26
                                                     No.   2014AP1853


           individual who is employed by an employer other than
           an authority.

                              . . . .

    (2)   "Record" means any material on which written, drawn,
          printed,    spoken,     visual,     or     electromagnetic
          information or electronically generated or stored data
          is recorded or preserved, regardless of physical form
          or characteristics, which has been created or is being
          kept by an authority.     "Record" includes, but is not
          limited to, handwritten, typed or printed pages, maps,
          charts, photographs, films, recordings, tapes, optical
          disks, and any other medium on which electronically
          generated or stored data is recorded or preserved.
          "Record" does not include drafts, notes, preliminary
          computations and like materials prepared for the
          originator's   personal    use   or    prepared   by   the
          originator in the name of a person for whom the
          originator is working; materials which are purely the
          personal property of the custodian and have no
          relation to his or her office; materials to which
          access is limited by copyright, patent or bequest; and
          published materials in the possession of an authority
          other than a public library which are available for
          sale, or which are available for inspection at a
          public library.

    (2g) "Record subject" means an individual about whom
         personally identifiable information is contained in a
         record.

                              . . . .

    (4)   "State public office" has the meaning given in s.
          19.42(13), but does not include a position identified
          in s. 20.923(6)(f) to (gm).
Wis. Stat. § 19.35 Access to records; fees.
     (1) RIGHT TO INSPECTION. (a) Except as otherwise provided by
          law, any requester has a right to inspect any record.
          Substantive common law principles construing the right
          to inspect, copy or receive copies of records shall
          remain in effect.     The exemptions to the requirement
          of a governmental body to meet in open session under
          s. 19.85 are indicative of public policy, but may be
          used as grounds for denying public access to a record

                                27
                                                   No.   2014AP1853


          only if the authority or legal custodian under s.
          19.33 makes a specific demonstration that there is a
          need to restrict public access at the time that the
          request to inspect or copy the record is made.

                             . . . .


Wis. Stat. § 19.356 – Notice to record subject; right of action

    (1)   Except as authorized in this section or as otherwise
          provided by statute, no authority is required to
          notify a record subject prior to providing to a
          requester access to a record containing information
          pertaining to that record subject, and no person is
          entitled to judicial review of the decision of an
          authority to provide a requester with access to a
          record.

    (2)   (a) Except as provided in pars. (b) to (d) and as
          otherwise authorized or required by statute, if an
          authority decides under s. 19.35 to permit access to a
          record specified in this paragraph, the authority
          shall, before permitting access and within 3 days
          after making the decision to permit access, serve
          written notice of that decision on any record subject
          to whom the record pertains, either by certified mail
          or by personally serving the notice on the record
          subject. The notice shall briefly describe the
          requested record and include a description of the
          rights of the record subject under subs. (3) and (4).
          This paragraph applies only to the following records:

              1. A record containing information relating to an
                 employee that is created or kept by the
                 authority and that is the result of an
                 investigation   into   a  disciplinary   matter
                 involving the employee or possible employment-
                 related violation by the employee of a statute,
                 ordinance, rule, regulation, or policy of the
                 employee's employer.

              2. A record obtained by the authority through a
                 subpoena or search warrant.

              3. A record prepared by an employer other than an
                 authority, if that record contains information

                               28
                                               No.   2014AP1853


              relating to an employee of that employer,
              unless the employee authorizes the authority to
              provide access to that information.

      (b)   Paragraph (a) does not apply to an authority who
            provides access to a record pertaining to an
            employee to the employee who is the subject of
            the record or to his or her representative to the
            extent   required  under   s.  103.13  or   to  a
            recognized or certified collective bargaining
            representative to the extent required to fulfill
            a duty to bargain or pursuant to a collective
            bargaining agreement under ch. 111.

      (c)   Paragraph (a) does not apply to access to a
            record produced in relation to a function
            specified in s. 106.54 or 230.45 or subch. II of
            ch. 111 if the record is provided by an authority
            having responsibility for that function.

      (d)   Paragraph (a) does not apply to the transfer of a
            record by the administrator of an educational
            agency to the state superintendent of public
            instruction under s. 115.31(3)(a).

(3)   Within 5 days after receipt of a notice under sub.
      (2)(a),   a   record  subject   may   provide written
      notification to the authority of his or her intent to
      seek a court order restraining the authority from
      providing access to the requested record.

(4)   Within 10 days after receipt of a notice under sub.
      (2)(a), a record subject may commence an action
      seeking a court order to restrain the authority from
      providing access to the requested record. If a record
      subject commences such an action, the record subject
      shall   name    the   authority    as   a   defendant.
      Notwithstanding s. 803.09, the requester may intervene
      in the action as a matter of right. If the requester
      does not intervene in the action, the authority shall
      notify the requester of the results of the proceedings
      under this subsection and sub. (5).

(5)   An authority shall not provide access to a requested
      record within 12 days of sending a notice pertaining
      to that record under sub. (2)(a). In addition, if the
      record subject commences an action under sub. (4), the

                            29
                                              No.   2014AP1853


      authority shall not provide access to the requested
      record during pendency of the action. If the record
      subject appeals or petitions for review of a decision
      of the court or the time for appeal or petition for
      review of a decision adverse to the record subject has
      not expired, the authority shall not provide access to
      the requested record until any appeal is decided,
      until the period for appealing or petitioning for
      review expires, until a petition for review is denied,
      or until the authority receives written notice from
      the record subject that an appeal or petition for
      review will not be filed, whichever occurs first.

(6)   The court, in an action commenced under sub. (4), may
      restrain the authority from providing access to the
      requested record. The court shall apply substantive
      common law principles construing the right to inspect,
      copy, or receive copies of records in making its
      decision.

(7)   The court, in an action commenced under sub. (4),
      shall issue a decision within 10 days after the filing
      of the summons and complaint and proof of service of
      the summons and complaint upon the defendant, unless a
      party demonstrates cause for extension of this period.
      In any event, the court shall issue a decision within
      30 days after those filings are complete.

(8)   If a party appeals a decision of the court under sub.
      (7), the court of appeals shall grant precedence to
      the appeal over all other matters not accorded similar
      precedence by law.    An appeal shall be taken within
      the time period specified in s. 808.04(1m).

(9)       (a) Except as otherwise authorized or required
          by statute, if an authority decides under s.
          19.35 to permit access to a record containing
          information relating to a record subject who is
          an officer or employee of the authority holding a
          local public office or a state public office, the
          authority shall, before permitting access and
          within 3 days after making the decision to permit
          access, serve written notice of that decision on
          the record subject, either by certified mail or
          by personally serving the notice on the record
          subject.   The notice shall briefly describe the


                           30
                                                                No.      2014AP1853


                requested record and include a description of the
                rights of the record subject under par. (b).

          (b)   Within 5 days after receipt of a notice under
                par. (a), a record subject may augment the record
                to   be  released   with  written   comments  and
                documentation selected by the record subject.
                Except as otherwise authorized or required by
                statute, the authority under par. (a) shall
                release the record as augmented by the record
                subject.


Wis. Stat. § 19.42 – Definitions.    In this subchapter [code of
ethics for public officials and employees]:

                                   . . . .

    (13) "State public office" means:

                                   . . . .

          (c)   All positions identified under s. 20.923(2), (4),
                (4g), (6)(f) to (h), (7), and (8) to (10), except
                clerical positions.

Wis. Stat. § 20.923 - Statutory salaries.    The purpose of this
section is to establish a consistent and equitable salary
setting mechanism for all elected officials, appointed state
agency heads, division administrators and other executive-level
unclassified positions. All such positions shall be subject to
the    same   basic    salary   establishment,    implementation,
modification, administrative control and application procedures.
The salary-setting mechanism contained in this section shall be
directed to establishing salaries that are determined on a
comprehensive systematic basis, bear equitable relationship to
each   other  and   to   the  salaries   of  classified   service
subordinates, and be reviewed and established with the same
frequency as those of state employees in the classified service.

                                   . . . .

    (2)   CONSTITUTIONAL   OFFICERS AND OTHER ELECTED STATE OFFICIALS.

                                   . . . .



                                      31
                                                   No.   2014AP1853


          (j)   The annual salary of a district attorney shall be
                set under s. 978.12.

Wis. Const. Article VI, Section 4 – County officers; election,
terms, removal; vacancies. SECTION 4.

    (1)   (a) Except as provided in pars. (b) and (c) and sub.
          (2), coroners, registers of deeds, district attorneys,
          and all other elected county officers, except judicial
          officers, sheriffs, and chief executive officers,
          shall be chosen by the electors of the respective
          counties once in every 2 years.

                               ....

    (c)   Beginning with the first general election at which the
          president   is   elected   which  occurs   after   the
          ratification of this paragraph, district attorneys,
          registers of deeds, county clerks, and treasurers
          shall be chosen by the electors of the respective
          counties, or by the electors of all of the respective
          counties comprising each combination of counties
          combined by the legislature for that purpose, for the
          term of 4 years and surveyors in counties in which the
          office of surveyor is filled by election shall be
          chosen by the electors of the respective counties, or
          by the electors of all of the respective counties
          comprising each combination of counties combined by
          the legislature for that purpose, for the term of 4
          years.

                             . . . .

    (5)   All vacancies in the offices of coroner, register of
          deeds or district attorney shall be filled by
          appointment. The person appointed to fill a vacancy
          shall hold office only for the unexpired portion of
          the term to which appointed and until a successor
          shall be elected and qualified.

                             . . . .




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     ¶65    PATIENCE DRAKE ROGGENSACK, C.J. (concurring in part,

dissenting       in    part).        I     concur      with    the     conclusion            of   the

majority opinion that the questions presented are questions of

statutory interpretation, not of standing.1                            I also concur that

Albert D. Moustakis, the Vilas County District Attorney, is not

an   employee         within    the       definition          set    out        in    Wis.    Stat.

§ 19.32(1bg), although I do not agree with all of the majority

opinion's reasoning upon which its statutory interpretation is

based.

     ¶66    I dissent because the majority opinion chooses not to

address obligations of the Department of Justice (DOJ) under

Wis. Stat. § 19.356(9)(a) and (b), which must be met prior to

release of the public records that the Lakeland Times seeks.2

Nothing in the record shows that Moustakis received the notice

required    by    § 19.356(9)(a),               and   without       notice       sufficient         to

satisfy § 19.356(9)(a) and (b), the DOJ is without statutory

authority    to         release          records       that     are        at        issue    here.

Accordingly,      I     would     reinstate           Moustakis's       action         under      the
public    records       law    that       the    circuit       court    dismissed,            and   I

respectfully          concur    in       part    and    dissent        in       part       from   the

majority opinion.

                                      I.    BACKGROUND

     ¶67    The        majority          opinion       ably     narrates             the     factual

background for the case before us; therefore, I will set out


     1
         Majority op., ¶3 n.2.
     2
         Id., ¶¶53, 60-61.


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only those facts necessary to enable the reader to follow my

discussion below.

      ¶68    Although the record is far from clear, apparently an

allegation was made that Moustakis was not properly carrying out

the functions of his office as Vilas County District Attorney.

The   DOJ    investigated         the    allegation         and   determined          it   was

without     merit.     The     Lakeland        Times       newspaper    made      a    public

records request of the DOJ asking for records that relate to the

DOJ's investigation.

      ¶69    Moustakis       believes      he      has     rights    relative         to   the

release of the DOJ's records of the investigation pursuant to

various subsections of Wis. Stat. § 19.356.                          The DOJ does not

agree.      Accordingly, Moustakis filed this action to enforce what

he believes are his statutory rights relative to the requested

records.3     The circuit court agreed with the DOJ, and dismissed

Moustakis's claims under Wisconsin's public records law.                                   The

court of appeals affirmed.

                                   II.    DISCUSSION
                             A.    Standard of Review

      ¶70    In   order      to     answer         the     questions    presented          but

unaddressed by the majority opinion, I interpret and apply Wis.

Stat.     § 19.356(9)(a)      and       (b).        Statutory       interpretation         and

application       present         questions         of      law     that     we        decide

independently,       while    benefitting           from    the   discussions         of   the

      3
       Moustakis subsequently amended his complaint to assert
constitutional and common law rights.     Those claims remain in
the circuit court and are not part of this review.


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court of appeals and the circuit court.                      State v. Hanson, 2012

WI 4, ¶14, 338 Wis. 2d 243, 808 N.W.2d 390.

                          B.   Statutory Interpretation

       ¶71    Moustakis contends that "[a]t the barest of minimums,

the court system must have standing to address the failure of a

custodian      to    provide    a    Wis.    Stat.     § 19.356(9)         notice   where

applicable prior to the release of a record."4                             The DOJ has

asserted      that   it   is   not    required        to   provide    Moustakis      with

notice      under    § 19.356(9)(a)         because    he    "is   not     entitled    to

invoke 19.356."5

       ¶72    Statutory interpretation begins with the plain meaning

of the words chosen by the legislature.                        Wis. Indus. Energy

Group, Inc. v. Public Serv. Comm'n of Wis., 2012 WI 89, ¶15, 342

Wis. 2d 576, 819 N.W.2d 240.                     If their meaning is plain, we

apply that meaning and go no further.                       Kalal v. Circuit Court

for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d

110.       However, if a statute is "'capable of being understood by

reasonably well-informed persons in two or more senses', then
the statute is ambiguous."             Watton v. Hegerty, 2008 WI 74, ¶15,

311 Wis. 2d 52, 751 N.W.2d 369 (quoting Kalal, 271 Wis. 2d 633,

¶47).

       ¶73    Wisconsin Stat. § 19.356(9) is my focus.                     It states in

relevant part:




       4
           Br. of Pl.-Appellant-Pet'r at 19.
       5
           Tr. of April 3, 2014 Proceedings at 17.


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            (a) Except as otherwise authorized or required by
       statute, if an authority decides under s. 19.35 to
       permit access to a record containing information
       relating to a record subject who is an officer . . .
       holding a local public office or a state public
       office, the authority shall, before permitting access
       and within 3 days after making the decision to permit
       access, serve written notice of that decision on the
       record subject . . . .      The notice shall briefly
       describe   the   requested   record  and   include   a
       description of the rights of the record subject under
       par. (b).

            (b) Within 5 days after receipt of a notice under
       par. (a), a record subject may augment the record to
       be released with written comments and documentation
       selected by the record subject.    Except as otherwise
       authorized or required by statute, the authority under
       par. (a) shall release the record as augmented by the
       record subject.
       ¶74       The DOJ agrees that Moustakis is an officer holding

state public office.               However, the DOJ asserts that Moustakis

has no right to prior notice of an impending release of public

records.          The DOJ asserts that it gave Moustakis prior notice

simply as a "courtesy."6

       ¶75       Wisconsin Stat. § 19.356(9)(a) is not an example of

artful          drafting,     which     has    generated    part   of     Moustakis's

argument that he is an employee within the meaning of Wis. Stat.

§ 19.32(1bg).              However,    the    application   of   § 19.356(9)(a)      in

regard to notice requirements for the case before us is plain.

This       is    so   in    part   because     Moustakis    is   the     Vilas   County

District Attorney and in part because the DOJ has the records

under      consideration.             Therefore,   Moustakis     comes     within   the

plain      meaning     of    § 19.356(9)(a),       which    describes     an   "officer

       6
           Id.


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. . . holding . . . a state public office," and the DOJ comes

within "the authority" in possession of the public records at

issue.

    ¶76     In regard to notice, the plain meaning of Wis. Stat.

§ 19.356(9)(a) imposes statutory obligations that the DOJ must

meet before it can release public records that relate to this

record subject (Moustakis) who is an "officer" who holds "state

office."

    ¶77     For   example,     Wis.        Stat.        § 19.356(9)(a)'s          directive

which    begins   as:     "[T]he         authority       shall,    before        permitting

access . . . serve written notice of that decision on the record

subject," imposes affirmative obligations on the DOJ prior to

release of these public records.                  Id.     First, the DOJ must give

Moustakis written notice.            Id.     Second, the notice must be given

three days prior to release of the records.                       Id.         Third, notice

must be served on Moustakis either by certified mail or personal

service.    Id.    Fourth, the written notice must briefly describe

the records at issue.               Id.      Fifth, the written notice must
inform   Moustakis      that   he    has     five       days    after    "receipt      of   a

notice" in which to exercise his right to augment the records.

Wis. Stat. § 19.356(9)(b).                Sixth, the DOJ must explain that

Moustakis may augment the records with "written comments and

documentation" of his choice.                   Id.     And finally, if Moustakis

augments the records, the notice must provide that the DOJ shall

release the records as augmented by Moustakis.                         Id.

    ¶78     "Wisconsin     has       a     long       history     of    holding      public
employees accountable through providing complete public access

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to records that will assist in the public's review."                          Schill v.

Wis. Rapids Sch. Dist., 2010 WI 86, ¶212, 327 Wis. 2d 572, 786

N.W.2d 177 (Roggensack, J., dissenting).                  I dissented in Schill

because the lead opinion and the concurrence prevented access to

emails that teachers received on work computers during work time

in contravention to Wisconsin's tradition of open government.

Id., ¶211.

       ¶79   The notice of Wis. Stat. § 19.356(9)(a) promotes open

government.      It    increases      transparency       in     regard    to    actions

taken in the course of governmental business because it permits

both sides of a concern to be placed before the public.                             The

§ 19.356(9)(a) notice is also an important aspect of fundamental

fairness to public officers, who serve the people of Wisconsin.

Dismissal of Moustakis's public records action stands in the way

of    both   policies,      which   are    supportive      of    good    government.

Accordingly, I would hold that the records at issue here cannot

be released at this time due to the DOJ's failure to fulfill its

statutory obligations related to the release of the records to
Lakeland Times.

                               III.       CONCLUSION

       ¶80   I dissent because the majority opinion chooses not to

address obligations of the DOJ under Wis. Stat. § 19.356(9)(a)

and   (b),   which    must    be    met   prior   to    release     of    the    public

records that the Lakeland Times seeks.                   Nothing in the record

shows    that    Moustakis          received      the     notice        required    by

§ 19.356(9)(a),       and     without      notice       sufficient       to     satisfy
§ 19.356(9)(a) and (b), the DOJ is without statutory authority

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to release records that are at issue here.              Accordingly, I would

reinstate Moustakis's action under the public records law that

the circuit court dismissed, and I respectfully concur in part

and dissent in part from the majority opinion.

    ¶81     I    am   authorized    to       state   that   Justices    ANNETTE

KINGSLAND       ZIEGLER   and      MICHAEL      J.    GABLEMAN     join     this

concurrence/dissent.




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