Formal Opinion 2026-001

Jump to:

1. Introduction and Background
2. The Role of the City Attorney's Office
3. MGO 5.19 and 5.20 and the MOU
4. State Law Requires an External Criminal Investigation Free of Interference
5. Other Related Statutes
6. Guidance Regarding MPD Response to OIM Subpoena Duces Tecum
7. Attachments

I. Introduction and Background

On July 27, 2026, the Office of Independent Monitor (“OIM") issued a  “Subpoena Duces Tecum" requesting records from the Chief of Police and the Custodian of Records of the Madison Police Department (“MPD") and including a response deadline of July 31, 2026. This subpoena was drafted in response to the officer-involved death of Corey Ruiz on July 22, 2026. This memorandum outlines the analysis of the Office of City Attorney and our conclusions regarding the applicability of Wisconsin law to the OIM's authority to obtain access to records and evidence related to the ongoing outside investigation.

This analysis involves several Wisconsin Statutes, Madison General Ordinances and basic principles involving records of open and active criminal investigations. Despite our best effort as attorneys, the legal analysis can seem technical and dense, although in this case the basic ideas and logic are fairly straightforward. Due to the significance of the issues involved and the public interest in both the facts of this matter and legal issues involved, and because this memo addresses some side issues along the way, I would like to clearly state our main conclusions first and then provide our more detailed analysis and reasoning:

1. Wisconsin Statutes give priority to the outside investigation into the officer-involved death being conducted by the Department of Justice's Division of Criminal Investigations (DCI). In this case MPD cannot share its records or evidence without approval of DCI and the Dane County District Attorney.
2. Wisconsin Statutes § 175.47 prohibits the sharing of MPD records for the purpose of any City investigation when such investigation could interfere with the DCI investigation. Madison ordinances related to the OIM cannot supersede Wisconsin law and are subject to it.
3. With the possible exception of personnel and training records of involved officers, none of the records sought in the subpoena can be released to the OIM at this time but may be released at the conclusion of DCI's investigation and the District Attorney's review of the file or if DCI determines specific records can be released sooner because such release will not interfere with its investigation.

At the outset I would note the uniqueness of the questions we are asked to address. No other Wisconsin municipality has enacted ordinances establishing an agency or body charged with civilian oversight of its police department. Wisconsin Statutes do not contemplate the existence of such entities or their authority to issue subpoenas, and they do not provide any specific guidance regarding their interactions with law enforcement or investigative agencies. 

This also means there are no court decisions to provide the City with specific direction on the relationship between the relevant state laws and Madison's ordinances. Still, while there is no Wisconsin court decision addressing the authority of a law enforcement oversight agency (other than a police and fire commission) or the issuance of a subpoena under these circumstances, our office is confident that the relevant statutes cited below require the conclusions stated in this memo because they involve basic principles regarding the conduct of criminal investigations and access to public records.

II. The Role of the City Attorney's Office

Before outlining the laws governing release of law enforcement records, I would like to address questions that have been raised regarding the role of the Office of City Attorney (OCA) in providing guidance to City agencies and specifically to the Office of the Independent Monitor which has repeatedly argued that the City Attorney's Office has an inherent conflict of interest in representing both MPD and the OIM. This argument fails to distinguish between attorneys who represent a singular client and those who, like the City Attorney's Office, represent an entire organization. In short, the OCA is charged with representing the legal interests of the City of Madison as an organization.

This responsibility is established in both Wisconsin law and City ordinances. Wis. Stat. § 62.09(12)(a) states that the city attorney “shall conduct all the law business in which the city is interested." Wis. Stat. § 62.09(12)(g) also states that the Common Council “may employ and compensate special counsel to assist in or take charge of any matter in which the city is interested." And Madison General Ordinance § 3.07(1) directs that the OCA “shall be responsible . . . for the conduct of all legal services of the City and shall serve as legal advisor to the Council, the Mayor and all departments and offices of the City."

It is true that the Common Council has authorized the OIM to retain outside legal counsel if necessary to fulfill the duties of the OIM pursuant to MGO 5.19(7)(l). This authorization does not affect the responsibility of the OCA to represent the City as an organization or its ability to issue an opinion regarding activities of the OIM or interactions of other agencies with the OIM. In addition, while the OIM has the ability to retain outside counsel who may review this analysis and offer their own opinion, as of the time of drafting this memo, the OIM has not executed a valid contract with outside counsel and therefore no separate attorney has been retained to assist the OIM in fulfilling its duties. When and if one is retained, its charge will be limited to assisting the OIM in fulfilling the duties of that office, and the OCA will continue to represent the City as a whole under the authority cited above.

Serving as an organizational attorney can mean many things in practice. For purposes of this analysis, the significant point is that the City Attorney's Office remains subject to the Wisconsin Supreme Court's Rules of Professional Conduct and each attorney in our office must comply with those rules or risk disciplinary action that may affect their law license and ability to practice law in Wisconsin. In particular, Supreme Court Rule 20:1.13 is titled “Organization as client" and states that a lawyer retained by an organization represents the organization acting through its duly authorized constituents. In other words, the OCA works with all City officials, agencies and boards but the client is the City as an organization, not any specific City official, agency or board.

In this role, it is not unusual for the OCA to work with and provide advice to multiple City agencies involved in specific matters. Sometimes different components of an organization consisting of approximately 30 agencies and over 3,000 employees have different perspectives, missions and goals. The responsibility of the City Attorney's Office is to provide our best judgment about what Wisconsin law requires, allows and prohibits. In most cases this work does not involve representing one agency versus another agency; it is simply analyzing and interpreting state or federal law for the City as a whole. To the extent that an agency does not agree with the guidance that the OCA provides, it is typically the federal or state law, not the City Attorney's Office, that may create a challenge or obstacle.

When there is an actual conflict of interest, the OCA also has a responsibility to disclose that to its client and to take steps to remedy the situation. This may involve, for example, assigning one attorney to prosecute cases before a City body and another to advise the body during its deliberations, and to ensure that the two attorneys do not discuss the matter outside of the hearing process. Or it may require that the OCA recuse itself from some matter and recommend that the City retain outside counsel.

After careful consideration, it is my conclusion that the OCA is not precluded from providing this guidance to both MPD and the OIM. First, in this matter, it is not even clear that MPD and the OIM have differing goals, given that both the Police Chief and the Independent Monitor have expressed a desire for the Division of Criminal Investigations to release as much information as possible regarding this matter as soon as possible. This opinion is about interpreting the law, not advocating for the position of either agency.

Second, to the extent that either agency believes that its interests are adverse to the City's interests, I am required, under Supreme Court Rule 20:1.13, to remind each that our client is the City as a whole and the issue at hand is how the City must comply with state laws. This memo will guide the actions of both the OIM and MPD.

Finally regarding the role of our office in relation to the OIM, it is also important to note that the OCA has no involvement in the OIM's investigation of police officer conduct or the processing of complaints. The OIM does not consult with our office or share information regarding pending investigations and we make no recommendations regarding the OIM's analysis, findings or recommendations.

III. MGO 5.19 and 5.20 and the MOU

With that extended background, this memo now addresses the legal issues posed by the subpoena issued by the OIM to MPD. Any analysis of the applicability of Wisconsin law to the OIM's authority must start with the creation of the ordinances establishing the OIM, which is MGO 5.19, and the Police Civilian Oversight Board (PCOB), which is MGO 5.20. 

When these ordinances were being developed and considered in 2020, the OCA was extensively involved in the proceedings. Three OCA attorneys attended and participated in many hours of meetings of both the Common Council and the Alder Workgroup to Develop Logistics & Operational Details for Madison Police Department Independent Civilian Oversight. We assisted in reviewing ordinances of other municipalities, conducted legal research and provided legal insight, and drafted the proposed ordinances. 

During the Alder Workgroup's consideration, and prior to the Common Council's deliberations regarding the proposed ordinances, our office raised several issues that were not addressed in Wisconsin Statutes or the proposed ordinances. We also raised issues that represented departures from standard City procedures, or that created gray areas in the implementation of oversight activities.  Some of those issues are outlined in two memos the OCA issued at the time, one of which is included in Legistar  (OCA Memo attached to Legislative File No. 61593) and which is also attached. As I wrote at the outset of that memo:

As outlined below, the Common Council chose to not completely resolve some key outstanding issues and to wait to see how oversight authority worked in practice before determining whether any changes or clarifications to the ordinances were required. It is not entirely surprising, therefore, that the City is now returning to some of those unresolved issues in the midst of a significant incident that the OIM wishes to investigate.

For example, much attention has been focused on the ordinance language requiring that the OIM have both “unfettered access" to MPD records and the authority to issue subpoenas. In many cases where these provisions are discussed publicly, the conversation omits the phrase “to the extent permitted by law" which is a key modifying term in MGO 5.19. Subsection 5.19(7)(i) states that the OIM “shall, to the extent permitted by law, have unfettered access to all MPD records, policies, Standard Operating Procedures, data, computer databases, and other information necessary to fulfill the duties of the OIM." And subsection 5.19(7)(j) states that the OIM “may, to the extent permitted by law, issue subpoenas for the purpose of compelling testimony or receiving documents necessary to fulfill the duties of the OIM."

As our memo of August 21, 2020 noted, this phrasing was not accidental or an oversight; it was intentionally used by the Alder Workgroup and the Common Council due to legal issues and uncertainties that our office identified related to the OIM's access to records under the Public Records Law and its subpoena authority under other Wisconsin Statutes. Rather than attempt to resolve those questions and uncertainties, the Common Council chose to modify the OIM's authority as to both records and subpoenas with the term “to the extent permitted by law." Wisconsin law and City ordinances have not provided any more specific guidance regarding the authority of police oversight entities since the creation of the ordinances.

However, “to the extent permitted by law" necessarily incorporates all applicable state and federal laws and applies it to the OIM's duties and authority. This includes laws related to open and active investigations, subpoena authority, and personnel records which make clear that the OIM's access to records is not completely unfettered and its subpoena authority is not absolute.

In an attempt to clarify the OIM's access to MPD records, the City's first Independent Monitor and MPD worked to develop a Memorandum of Understanding (MOU) with the assistance of the OCA. (Independent Monitor and Police MOU) The MOU is posted on the OIM's website and is attached, and continues to be in effect. It identifies several categories of MPD records that are available to the OIM with or without redactions, records that may be shared with the OIM but kept confidential, and records that may require notice to employees before they can be shared. 

Notably, Section D of the MOU notes that confidential records may be shared with the OIM when the records relate to cases “that are open and active and under investigation by Madison Police Department." Section D of the MOU also notes that the Public Records Law may require notice to MPD employees before personnel records are shared with the OIM and that the balancing test of the Public Records Law may need to be applied to requests for certain records.

As further outlined below, the investigation into the death of Corey Ruiz is an open and active investigation being conducted by the Division of Criminal Investigations. It is not an investigation by the Madison Police Department. Therefore, the MOU previously executed by the OIM and MPD does not authorize MPD's release of investigation records related to this officer-involved death before the DCI investigation is complete. 

IV. State Law Requires an External Criminal Investigation Free of Interference

Wis. Stat. § 175.47 was adopted by the Wisconsin Legislature and signed into law by the Governor in 2013. Subsection (2) of that law states that each law enforcement agency must create a written policy governing the investigation of officer-involved deaths that involve a law enforcement officer. Subsection (3)(a) states that each such policy must require an investigation conducted by at least 2 investigators who are not employed by the law enforcement agency involved in the officer-involved death.

MPD's policy regarding investigations of officer-involved deaths is a Standard Operating Procedure titled “Officer Involved Deaths and Other Critical Incidents" which is posted on the MPD website. The SOP implements the statutory directive by stating “The outside agency lead investigator has statutory authority to oversee and direct the investigation."

Wis. Stat. § 175.47(3)(c) states that each law enforcement agency policy “may allow an internal investigation into the officer-involved death if the internal investigation does not interfere with the investigation conducted under par. (a)." MPD's policy is to not initiate an internal investigation by its Professional Standards and Internal Affairs Unit (PS&IA) until the outside investigation has been completed and the District Attorney has made their determination whether to charge the officer with any crime, as the District Attorney may wish to reopen any part of the investigation or ask for additional investigation. The purpose of a PS&IA investigation is to determine whether an officer complied with MPD's training standards, codes of conduct or standard operating procedures, and whether any disciplinary action may be warranted.

The state statute requiring an outside investigation of an officer-involved death was enacted long before the City of Madison created the OIM and PCOB. At the time the reference to “internal investigation" meant only the law enforcement agency's PS&IA investigation and did not contemplate the role of an Independent Police Monitor. While MPD's policy cannot bind the OIM, the statute establishes the primacy and the priority of the outside criminal investigation being completed without the risk of interference from other agencies, including both MPD and the OIM. This is a type of statutory state preemption and a local ordinance cannot override or supersede that state mandate.

In accordance with Wis. Stat. § 175.47, and as it has done in the past, MPD has chosen the Division of Criminal Investigation (DCI) in the Department of Justice to complete the external investigation.  After DCI completes its fact finding, it turns its file over to the Dane County District Attorney's Office. Under Wis. Stat. § 978.05, only a District Attorney can determine whether to charge any officers involved in an incident with any crime related to unreasonable or unjustified use of force.

The primacy of the outside criminal investigation is underscored by its legal significance and process. It is the only mechanism to determine whether an officer may be charged for a potential crime that may result in conviction and sentencing which could include imprisonment. Therefore it is first in the hierarchy of assessing potential accountability. After the investigation is complete for that purpose, other accountability processes may be pursued including PS&IA and OIM investigations, discipline by the Police Chief or Police and Fire Commission, and civil litigation.

A criminal investigation and any subsequent prosecution are also subject to strict rules of evidence, legal standards and a high burden of proof. Any mistakes made during any phase of the investigation can jeopardize the integrity of an investigation and compromise the District Attorney's ability to successfully prosecute any involved officer.

Those factors require a delay in MPD or DCI providing investigative records to the OIM. While the Independent Monitor, the Police Chief, and the public all have a desire for more transparency more quickly, Wis. Stat. § 175.47 requires a delay in MPD sharing its records with the OIM until the DCI investigation is no longer open and active or until DCI determines that sharing specific records will not interfere with its investigation. Interference is not limited to concepts such as obstructing the investigation or compromising evidence but can also mean simply affecting the course of the investigation by requiring DCI to alter its approach to accommodate requests of the OIM or to react to any investigative actions of the OIM.

It is not difficult to anticipate the potential ways in which release of investigative records could interfere with the progress of the outside criminal investigation. Investigative agencies typically have a roadmap for completing investigations that involves review of police reports and forensic evidence as well as a sequence of interviews with witnesses, including the officers involved. At the very least, reviewing evidence to determine whether it can be released to the OIM would take time, attention and resources away from timely completion of the investigation. Release of reports or other evidence could also lead the OIM to take actions that might affect the DCI investigation and its ability to obtain and preserve all relevant evidence.

Investigators and prosecutors must also be mindful of legal and procedural obligations that impact any potential prosecution, including protecting against improperly influencing a possible pool of jurors or other actions that could jeopardize a potential prosecution. Any number of actions taken by the OIM as a result of reviewing investigation records may impact the DCI investigation. The City of Madison or its agencies is not in a position to anticipate or determine how its actions might interfere with the DCI investigation; only DCI can do that.

Madison's ordinances give the OIM an important role in the area of civilian oversight of MPD, but that does not supersede Wisconsin Statutes which make the integrity of the outside criminal investigation the top and most immediate priority. As such, DCI controls the release of investigative records, including any reports or evidence that MPD forwarded to it.

In summary, it is the legal position of the City of Madison that its agencies cannot and will not interfere with an outside investigation of an officer-involved death. A release of MPD records could result in interference in the investigation by MPD as well as the OIM. This means that MPD may not release its investigative reports, records or evidence to the OIM until the District Attorney has deemed the investigation to be complete or until DCI determines that MPD's release of records will not interfere with the DCI investigation. Just as MPD must not attempt to influence or interfere with DCI's investigation or the District Attorney's process, the OIM must do the same.

This does not preclude the OIM from initiating other aspects of its own investigation at the same time as the DCI investigation as long as it does not interfere with the DCI investigation.

On a related note, our 2020 memo also discusses interviews of officers following critical incidents which are governed by several U.S. Supreme Court decisions. For the public's benefit, I will simply note that the OIM may not compel police officers to sit for an interview while the DCI investigation is ongoing. Based on the court decision in Garrity v. New Jersey, 385 U.S. 493 (1967), if any public employee is compelled to answer questions in a disciplinary investigation, the statements provided cannot be used as part of a subsequent criminal prosecution. Until the DCI investigation is closed and the District Attorney has made their determination, the potential exists for either entity to want to re-interview officers following review of other evidence.

V. Other Related Statutes

While Wis. Stat. § 175.47 is the statute that most directly governs the availability of records related to officer-involved deaths, I am addressing several other statutes that generally govern release of public records and that are cited in the Frequently Asked Questions posted on the City's website. The shorthand format of the FAQ document appears to have prompted some questions and confusion among the public which this Formal Opinion provides an opportunity to address. 

Wisconsin's Public Records Law outlines the categories of governmental records that are open to inspection by the public and it imposes some limitations on records related to both investigations and to public employees. Each City agency is an “authority" as defined by Wis. Stat. § 19.32(1). MPD is an authority and retains custody of its records and the OIM is an authority and retains custody of its records. When an entity seeks records, it is treated as a “requester" as defined by Wis. Stat. § 19.32(3). An agency is an authority as to its records but that status does not affect its treatment as a requester under the Public Records Law.

The Public Records Law also carves out additional access to records in some cases for individuals requesting records related to themselves. This is sometimes why we loosely define categories of requesters as 1) employees seeking their own records and 2) “everyone else." Madison ordinances regarding the OIM's access to records is subject to the Public Records Law and other statutes because, as noted above, the ordinance refers to unfettered access “to the extent permitted by law."

The Public Records Law is contained in Wis. Stat. §§ 19.32 – 19.39. Wis. Stat. § 19.35(1)(am)1. provides that not even an individual seeking public records related to themselves is entitled to records that are maintained in connection with an investigation or potential court hearing. In addition, Wis. Stat. § 103.13(6)(a) states that an employee shall not have access to their personnel records when they are related to the investigation of possible criminal offenses committed by the employee. If an individual with greater rights cannot access their own investigation record, it follows that a requester with lesser legal rights cannot access those records either. 

More to the point, Wis. Stat. § 19.36(10)(b) applies to all requesters and states that access shall not be provided to “Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation." This is known as the “open and active investigation" exception and it is a well-established rule that has been routinely enforced by courts over the years. While the MOU between MPD and the OIM allows the OIM to obtain MPD records of open and active investigations by MPD, the current investigation is being conducted by DCI, not by MPD. The records of MPD are actually records of DCI's open and active investigation and therefore cannot be released until that investigation is complete.

These specific statutes prohibit the release of MPD investigative records at this time. But in addition, the Public Records Law includes a balancing test which helps to analyze when records should be released, withheld or redacted when more specific statutes do not apply. Records may be withheld if the public interest favoring nondisclosure of records outweighs the strong public interest in disclosure. 

In this case there is certainly a strong public interest in disclosure of the records, not only to assist the OIM in performing its duties but in providing information and transparency to the public. But this interest is outweighed by the stronger public interest in ensuring fair and impartial investigations. The corner stone of the judicial process is investigation by police, a review of that investigation by the district attorney to decide charges and a fair and impartial jury as judge. 

Moreover, our judicial process designates one investigating body. While law enforcement agencies may request mutual aid of other agencies in certain circumstances there is always a lead agency in charge of the investigation. There is not, for example, three law enforcement agencies each conducting their own investigation and each referring charges to the district attorney over the same incident. In officer involved shootings, Wisconsin law designates a lead agency which, in this case, is DCI, and that lead agency must be able to protect the integrity of the investigation. Therefore, the public interest prong of the balancing test also advises that MPD records cannot be released while the case remains open and active.

VI. Guidance Regarding MPD Response to OIM Subpoena Duces Tecum 

Based on the analysis above, we conclude that MPD cannot provide to the OIM, either in response to a records request or a subpoena, any investigative reports, records or evidence related to an officer-involved death until the completion of an outside investigation and determination by the District Attorney that the case is no longer open and active. The only exception would occur if DCI determined that some specific records could be released without interfering with its investigation. Until the District Attorney makes his determination, MPD should provide a response to the subpoena consistent with this analysis. 

Below is a list of the items requested by the OIM's Subpoena Duces Tecum and which cannot be released at this time because they are all related to the officer-involved death incident. These responses assume that records actually exist for each category described but it may be that MPD does not possess any such records. 

1. All incident reports, supplemental reports, use-of-force reports, and after-action reports concerning the officer-involved shooting and death of Corey Ruiz.
2. All body-worn camera and dash-camera recordings, audio recordings, radio traffic, and 911 or dispatch records related to the incident.
3. All internal affairs and administrative investigation files, including witness statements, officer statements, and investigative summaries, related to the incident.
4. All forensic, ballistic, autopsy, and crime-scene reports related to the incident.
5. All photographs, diagrams, and physical evidence logs related to the incident.
6. All communications, correspondence, memoranda, and transmittal records between MPD and the Wisconsin Department of Justice Division of Criminal Investigation (DCI) concerning this matter, including a complete copy of every record, document, and item of evidence MPD provided to DCI in connection with this matter.
7. Any other records, data, or materials in MPD's possession, custody, or control concerning the incident that are responsive to OIPM's original request of 07-22-2026.

The OIM's subpoenas also requests the following information:

1. The name(s), badge number(s), and assignment(s) of all MPD officer(s) involved in the shooting and death of Corey Ruiz, along with the personnel and training records of said officer(s).

The name of the officer who fired his weapon has been released by DCI and can be confirmed by MPD. Our office is in the process of reviewing the other information requested by this item to confirm that it would not interfere with the outside investigation. We will advise MPD whether any of those materials can be shared with the OIM. If any of the materials can be shared that would occur after the notices which are required by the statutes governing the release of personnel records are provided to the officers.

I hope this information is helpful. Please contact me if you have any questions.

Attachments

• Memo: Independent Police Monitor/Civilian Oversight Body Discussion Topics, attached to Legislative File No. 61593
• MOU: Access to MPD Records and Information