COURT OF APPEALS

DECISION

DATED AND FILED

May 24, 2023

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2022AP871 Cir. Ct. No. 2021CV1786

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN EX REL. TERRENCE LAFAIVE,

 PETITIONER-APPELLANT,

 V.

RECORDS CUSTODIAN WAUKESHA COUNTY DISTRICT ATTORNEY,

 RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Waukesha County: 

LLOYD CARTER, Judge. Affirmed. 

Before Gundrum, P.J., Neubauer and Grogan, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 
No. 2022AP871

2

¶1 PER CURIAM. Terrence LaFaive appeals pro se from the circuit 

court’s order denying his petition for a writ of mandamus related to records he 

sought from the Waukesha County District Attorney’s (DA) office. We conclude 

that the circuit court did not err in dismissing LaFaive’s petition, so we affirm.

Background

¶2 In January 2020, LaFaive was charged in two criminal cases. These 

matters were scheduled to be resolved by plea and sentencing on August 27, 2020. 

At the hearing that day, counsel for LaFaive, Attorney Peter Wolff, appeared in the 

courtroom, while LaFaive and the prosecutor appeared by Zoom. Wolff, the 

prosecutor, the court, and LaFaive went back-and-forth regarding their 

understanding of the plea agreement and what the State would or would not argue 

at sentencing. It became clear during the hearing that a misunderstanding existed 

regarding what the State would argue as part of the plea agreement. Wolff indicated 

it was his understanding that “the State is offering probation” with regard to one of 

the charges to which LaFaive was pleading. The exchange continued:

 [PROSECUTOR]: That is not true.

 THE COURT: Well, that’s on his paperwork so—Unless 

he agrees to go forward on that, we’re gonna have an issue 

because I don’t think he understands that that entire offer at 

some point morphed it sounds like. Or at least his 

understanding. 

 [PROSECUTOR]: I would agree with that. I think 

there—Attorney Wolff has been, been texting me. And it 

does appear, based upon the comments in court and his 

comments, that there w[as] some miscommunication.

 My understanding was—and that’s I think, what I wrote 

down—is that both are free to argue. That was the 

agreement for the State to modify what charges he was 

pleading to.
No. 2022AP871

3

 So both sides free to argue means to me we can argue 

anything that we want, and I think it meant something else 

to Mr. Wolff and that was relayed to Mr. LaFaive. 

 So I think there’s definitely a misunderstanding or 

miscommunication about the offer, the recommendation. 

The hearing was rescheduled, and in September 2020, LaFaive pled guilty to two 

criminal offenses and was sentenced.

¶3 In October 2021, LaFaive made an open records request of the DA’s 

office, requesting “[a]ll correspondence between the State and atty Peter Wolff in 

relation to Mr. Terrence LaFaive.” LaFaive indicated he was specifically seeking 

“the text messages that [Assistant DA] Boese asserted [at the August 27, 2020 

hearing] passed between” her and Wolff. Not receiving a sufficiently timely 

response from the DA’s office to his records request, LaFaive filed a petition for a 

writ of mandamus seeking a court order forcing the DA’s office to provide him the 

requested documents. The DA’s office moved to dismiss/quash the petition, the 

court granted the motion, and LaFaive now appeals from that order.

Discussion

¶4 We review de novo a circuit court’s grant or denial of a motion to 

dismiss. Wisconsin Mfrs. & Com. v. Evers, 2022 WI 38, ¶7, 401 Wis. 2d 699, 977

N.W.2d 374. We also review independently whether a common law exception to 

disclosure of records under the public records law applies. See Democratic Party 

of Wis. v. Wisconsin DOJ, 2016 WI 100, ¶9, 372 Wis. 2d 460, 888 N.W.2d 584. 

¶5 In dismissing LaFaive’s petition, the circuit court stated at the hearing 

on the motion to dismiss/quash that

what is the subject of [LaFaive’s] writ of mandamus is 

communications between a prosecuting attorney and a 

defense attorney representing Mr. LaFaive. Whether they 
No. 2022AP871

4

are text messages or e-mails really isn’t material. They’re 

communications as part of plea negotiations. And, as such, 

the Court does believe that they certainly would fall into the 

category as set forth in Foust[1]of materials that are integral 

to the prosecutorial process, the prosecution function. And 

so this Court finds specifically that Foust ... is applicable 

here....

 ....

 ... These are communications between Mr. Wolff as 

counsel for Mr. LaFaive and Ms. Boese as the representative 

of the district attorney’s office in negotiations over criminal 

charges and setting the parameters of some plea negotiations 

that have been going on. 

 ... It’s a question of whether or not those documents are 

integral to the prosecutorial function. And they amount to 

plea negotiations, and they clearly fall, in the Court’s view, 

within the parameter of the Foust decision. And under those 

circumstances, the Court believes that the State’s position 

here today, moving to dismiss this case based upon the 

application of Foust is properly placed.

¶6 The circuit court got it exactly right. In State ex rel. Richards v. 

Foust, 165 Wis. 2d 429, 477 N.W.2d 608 (1991), our supreme court held that “the 

common law provides an exception [to the general rule of open access to public 

records] which protects the district attorney’s files from being open to public 

inspection.” Nichols v. Bennett, 199 Wis. 2d 268, 274, 544 N.W.2d 428 (1996) 

(quoting Foust, 165 Wis. 2d at 433-34). Under Foust, “documents integral to the 

criminal investigation and prosecution process are protected” from public 

inspection under the open records law. Nichols, 199 Wis. 2d at 275 n.4 (quoting 

Foust, 165 Wis. 2d at 434). Our supreme court has also clarified that “[i]t is the 

nature of the record, rather than its form or location that matters.” Democratic Party 

of Wis., 372 Wis. 2d 460, ¶27. 

 

1

 State ex rel. Richards v. Foust, 165 Wis. 2d 429, 433-34, 477 N.W.2d 608 (1991).
No. 2022AP871

5

¶7 Here, LaFaive was specifically seeking the text message 

communications between his defense counsel and the prosecutor on his case that 

were sent as an effort to try to clarify and work through misunderstandings related 

to plea negotiations. Little could be more “integral to the ... prosecution process” 

than communications between defense counsel and the prosecutor related to plea 

negotiations.

¶8 Subsequent to the August 27, 2020 hearing, LaFaive also filed a 

complaint against Wolff with the Office of Lawyer Regulation (OLR). LaFaive 

directs our attention to an apparent statement from the OLR in which it is asserted 

that Wolff essentially indicated to OLR that the text communication at issue was 

“not substantive and did not discuss the plea deal” but instead indicated something 

to the effect of: “I sent you an email.” We are unmoved. As the circuit court found, 

the texts the prosecutor was referring to at the August 27 hearing were connected to 

the plea negotiations in LaFaive’s case, whether directly or indirectly by referring 

to a related e-mail. The transcript of the hearing shows that the parties were just 

coming to the realization that there was a misunderstanding as to whether the State 

would be “offering probation” with regard to one of the charges to which LaFaive 

was pleading. Wolff expressed his understanding that the State would offer 

probation, and the prosecutor responded, “That is not true.” The court then stated 

that the probation offer was “on his paperwork” and indicated its belief that LaFaive 

did not “understand[] that that entire offer at some point morphed it sounds like. Or 

at least his understanding.” The prosecutor responded: “I would agree with that. I 

think there—Attorney Wolff has been, been texting me. And it does appear, based 

upon the comments in court and his comments, that there w[as] some 

miscommunication.” (Emphasis added.) As the State points out in its response 

brief, “LaFaive does not argue that communications between [the prosecutor] and 
No. 2022AP871

6

Attorney Wolff would have been made for a reason other than to address his cases.” 

We agree, and under Foust, such records are not open for public inspection. 

¶9 For the foregoing reasons, we conclude the circuit court did not err in 

dismissing LaFaive’s petition for a writ of mandamus.

By the Court.––Order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5. (2021-22).