Milwaukee Teachers' Education Ass'n v. Milwaukee Board of School Directors

James Milwaukee Association, Teachers' Education Plaintiffs-Appellants, Roe 1-5 and 2, Jane Roe 1 - v. Joseph Milwaukee Board School Directors, Defendants-Respondents, Jasna, Fisher Robert C. Defendant-Intervenor- Sentinel, Inc., Journal Respondent-Petitioner.

Supreme Court 2, 1999. No. argument 97-0308. Oral July March Decided (Also 403.) reported in 596 N.W.2d defendant-intervenor-respondent-peti- For the by Lucey, Bargren tioner there were briefs David Paul Foley argument by Lardner, & Milwaukee and oral Lucey. David plaintiffs-appellants by

For the there awas brief Perry, Lerner, Richard Robert J. B. Michele Sumara Perry Lerner, Quindel Saks, S.C., & Milwaukee argument by and oral Robert J. Lerner. by

Amicus curiae brief was filed James A. Fried- Dreps Sinykin, man, Robert J. & LaFollette Newspaper Madison for the WI Association, WI Broadcasters Association and the Freedom of Informa- tion Council. by

Amicus curiae brief was filed Melissa A. Cher- ney and Galinat, counsel, Chris as Madison, for the Wisconsin Education Association Council.

Amicus curiae Ehlke, brief was filed Bruce F. Myers, Dowling, Shneidman, Aaron N. Halstead and Ehlke, Blumenfield, Domer, Madison, Hawks & Dis- 40, AFSCME, trict Council AFL-CIO. by

Amicus curiae brief was filed E. Gordon McQuillen Cullen, Weston, and Bach, Pines & Madison, for the Wisconsin Professional Police Association. by

Amicus curiae brief was filed P. Jon Axelrod DeWitt, Stevens, and Ross & S.C., Madison, for Ste- phen M. & Kailin Linda Kailin.

¶1. CROOKS, N. PATRICK J. The issue in this public employees case is whether are entitled de judicial novo review under Erickson, Woznicki v. (1996), 2dWis. 549 N.W.2d 699 a when attorney custodian iswho not a district decides to employees' personnel release information from the response request records in to a made under Wiscon- §§ 19.31-.39 law, Wis. Stat. sin's (1995-96).1 judicial that the de novo review we

We hold recognized applies in all cases which impli- information decides to disclose record custodian reputational cating of an and/or interests regardless identity public employee, individual affirm the deci- Therefore, we of the record custodian. appeals remand the case of the court of and sion conducting purposes of a de novo circuit court for reviеw.

I. undisputed. case are As a 2. facts of this background criminal result of a 1995 district-wide (MPS) check, Public Schools discovered Milwaukee employees criminal records. MPS that 548 of its had and criminal records of these released the names (Journal- employees Sentinel). Sentinel, Inc. to the Journal Among ¶ 3. the names released were those of plaintiffs 1-2, 1-5 Jane all of whom James Roe Roe plain- Six had been convicted of misdemeanors. was a tiffs were educational assistants one physical As a result education teacher. back- ground employees, approximately check, MPS including discharged plaintiffs, MPS the seven were resigned discharge. or under threat of letter, 3,1996, In a a Journal-Sen- December reporter open records law tinel invoked Wisconsin's building assign- requested positions, names, any hiring employees ments, and dates of MPS who disciplined quit, or as a result of the fired, were were 1 noted, statutory references are Unless otherwise all to version of the Wisconsin Statutes. 1995-96 background reporter criminal check. The also wanted specific against know action taken each employee any grievances and whether formal had been filed. Raymond Nemoir, Director Executive Department per-

MPS' of Human Resources and MPS' custodian, sonnel handled the Journal- request. By January Sentinel's 3, letter dated 1997, plaintiffs Nemoir notified each of the of his decision to positions, building assignments names, release their hiring they dates to the Journal-Sentinel unless sought provided de novo review Woznicki within days. performed that Nemoir indicated he had required balancing test and had concluded releasing outweighed any interest the records potential employees' privacy reputa- harm to the tional interests. January 1997, 6. On the Milwaukee Teach- (the "MTEA")

ers' Education Association and the seven plaintiffs individual filed this action in Milwaukee County seeking prevent Circuit Court MPS from releasing requested pending information de novo granted review of Nemoir's decision. The circuit court the Journal-Sentinel's motion to intervene and issued temporarily restraining an order the Milwaukee Board (MBSD) releasing of School Directors from information pertaining plaintiffs.2 to the seven only plaintiffs object releasing information is their specific assignments names and school because those items plaintiffs would plaintiffs' allow to be identified. The identities public, have not been made it should be but noted that the name appears of one of them in the minutes of the meeting MBSD person discharged which the position was from a at MPS. Apparently, any publicity there was never discharge. about the Judge pres Manian court, Victor 7. The circuit hearing beginning evidentiary

iding,3 on held an continuing January January 27, 1997. 21, 1997, and presented hearing and the testi the evidence After Judge mony Nemoir, determined that Manian of involving records limited to situations Woznicki was attorneys. Consequently, are district custodians who perform Judge the de novo review con Manian did not templated Instead, he dismissed the Woznicki.4 jurisdiction, ruling subject a of matter action for lack January 29, order filed he confirmed a written 1997.5 appeals in a decision 8. The court of reversed May Educ. Ass'n v. 12, 1998. Milwaukee Teachers'

filed 3 presided proceedings court Judge over all circuit Manian concerning temporary restraining except hearing for the Judge and the Journal-Sentinel's motion intervene. order hearing. conducted that Francis Wasielewski 4 appeals of The Journal-Sentinel contended in court a de novo review, Manian had Judge performed appar but that argument ently position this oral in that court. abandoned at Ass'n v. Milwaukee Bd. Sch. See Milwaukee Teachers' Educ. (Ct. 1998). 93, Dirs., n.1, App. N.W.2d 122 220 Wis. 2d 96 582 reprise argument The does not seem Journal-Sentinel any event, this court. See Journal-Sentinel's Br. at 52 n.11. In supports appeals' of the record the court of conclu our review de novo a Judge proper Manian did not conduct sion Teachers, review. See Milwaukee 2d at 96 n.1. addition, temporary Judge In Manian vacated request stay a restraining plaintiffs' order denied prohibiting requested the release of the information. court stay the denial of the was an appeals later determined that MTEA had erroneous exercise of discretion because shown App. Ct. possibility than a mere of success on the merits." "more 1997, Order, 14, Accordingly, appeals Feb. at 8. the court of granted stay pending appeal. Dirs.,

Milwaukee Bd. Sch. 220 Wis. 2d (Ct. 1998). App. appeals N.W.2d 182 The court of con- subject ‍​​‌​​​​​​​​​​​​‌‌‌​​​​​‌​‌‌‌‌​‌​​‌​​‌​​​​‌‌​​​‌​‍cluded that the circuit court had matter jurisdiction in the case because Woznicki was not lim- attorney ited to cases in which a district was the records custodian. Id. at 97-99. The court remanded the case to the circuit court with directions to conduct by applying balancing the de novo review the test dis- granted cussed Woznicki. Id. at 101. This court the petition Journal-Sentinel's for review.

HHHH begin by examining portions 9. We the relevant Erickson, Woznicki v. 178, 202 Wis. 2d 549 N.W.2d (1996), appeal. the decision at the heart of this open requests Woznicki involved records law for the personnel telephone file and records of Thomas employee. Woznicki, a school district Woznicki, 202 Wis. 2d at 182 & n.1. Because Woznicki had been the subject investigation, requested of a criminal custody attorney. records were of the district Id. attorney at 182. The district decided to release the sought records and notified Woznicki. Id. Woznicki an injunction prevent in the circuit court to release of the records. Id. The circuit court declined to issue an injunction, attorney but ordered that the district would enjoined disclosing pending be from the records resolu appeal. tion of the issue if Woznicki were to Id. appealed, ¶ 10. and the court of appeals personnel public held that records of employees exempt categorically were from disclosure. Accordingly, appeals Id. the court of reversed the cir- directing cuit court's order and case, remanded the injunction preventing circuit court to issue the disclo- sure of the records. Id. at 183. attorney's accepted the district 11. This court appeals

petition review, for reversed the court of case the circuit court. Id. at remanded the personnel doing so, In this court first held that subject open public employees to the are records rejected district Id. at 183. We also law. pro- attorney's argument open that records law seeking bring a claim for an individual vided no prevent pertaining to disclosure of himself or herself. Id. at 184^85. We stated: Attorney the District agree

We with remedy explicitly provide records law does not position. an individual in Woznicki's Yet a review of persuades our statutes and case law us that a rem- court, i.e., edy, de novo review the circuit implicit in our law. analyzed and cases

Id. at 185. We several statutes establishing important public policy that there is an protection public in of an individual interest the employee's privacy reputation. and See id. at 185-90. right Without a to review of records custodians' deci- by sions, reasoned, affected the release we individuals requested public left records would be without a safeguarding privacy reputations. means of their Id. at 190-91. explain procedure then to the 12. We went on considering

to be followed custodians and courts in requests open the under records law. We stated that releasing apply prior records, must the to custodians following balancing test: instance,

In a demand inspect pub- the first when to made, lic records is the custodian of the records weigh competing must interests involved and permitting inspection determine whether would result in harm to public interest which out- weighs legislative policy recognizing public allowing interest in inspection.

Id. at 191-92 (quoting Newspapers, Breier, Inc. v. (1979)). 417, 427, Wis. 2d N.W.2d We contin- ued: duty Attorney District to all balance

relevant interests. Attorney Should the District to choose release records after the balancing has done, been may that decision be appealed to the court, who in turn circuit must decide per- whether mitting inspection would result in harm to the public which outweighs interest the public interest allowing inspection. Woznicki, 202 Wis. 2d at 192. As a to our corollary that an holding individual whose interests would reputation impacted by be "the district potential attorney's records," release his or her we determined "the Attorney that District cannot release the records without first notifying that individual and allowing reasonable amount of time for the individual appeal decision." Id. at 193. We concluded: agree policy We with the and purpose underlying provide records law: to possi- broadest public However, ble access of the public records. is not access absolute. In this case, important Woznicki has in privacy interests reputation protection warrant under our law.

Id. at 193-94. 13. The central in issue this case is whether

de judicial novo review in recognized Woznicki as

implicit open in the records law is available when the attorney. records custodian is not district Res- application olution of this issue involves of a undisputed interpretation statute to an facts set of and prior questions of our decision Woznicki. These are independently law which we decide of the circuit court benefiting, appeals, however, and court of analyses. from their Newspress Sheboygan Wisconsin v. Falls (1996); Dist., Sch. 199 Wis. 2d 546 N.W.2d 143 Bennett, 268, 272-73, Nichols v. 199 Wis. 2d (1996). Family N.W.2d 428 See Ranes v.American Mut. (1998). Co., 49, 54, Ins. Wis. N.W.2d 197 ¶ 14. This court's decision is grounded upon statutory a substantial foundation of manifesting importance placed by and case law legislature upon protection Wisconsin's and courts privacy reputations and of individuals. We deter- "specific legislative mined in Woznicki that a intent to protect privacy reputation" and is evident from at least statutory four Woznicki, sections. 202 Wis. 2d at § sections, 185-87. The first of these Wis. Stat. 895.50 (1993-94), recognizes privacy provides equitable compensatory damages, attorney relief, privacy unreasonably fees to individuals "whose 895.50(1). § invaded." See id. at 185-86. § 15. The second section is Wis. Stat. 19.85

(1993-94), part open meetings which is of Wisconsin's provides govern law. See id. at 186. Section 19.85 may meetings mental bodies close in certain situations implicate reputational which individuals' (f). 19.85(1)(b), (c), pointed § interests. See and We out open designates in Woznicki that the records law itself indicating public policy § 19.85 as records law purposes. (citing Woznicki, See 202 Wis. 2d at 186 19.35(1)(a)(1993-94)). § Stat. 16. third statute cited this court in (1993-94), §

Woznicki is Wis. Stat. 103.13 which employers requires employees to allow their view personnel exceptions apply. files unless certain See 103.13(2); § Notably, Woznicki, 202 Wis. at 186-87. exception employee one is that an is not to have access personal to the information of else if someone such unjustifiably person's access would invade the other 103.13(6)(e). privacy. Employers § § who violate 103.13 103.13(8). subject penalties. § are ¶ 17. The fourth statute we cited is Wis. Stat. (1993-94). § Woznicki, 230.13 See 202 2d at 187. secretary Section 230.13 allows the a and division Department Employ administrator of the Wisconsin of keep involving ment Relations to personnel certain including disciplinary matters, actions, public. 230.03(1), (9), (13); §§ closed to the and 230.13(1)(c). "[t]ogether,

¶ 18. We concluded in Woznicki that recogni the above-referenced statutes evince a clear importance legislature puts tion of the on reputational interests of Wisconsin citizens." Woznicki, 202 Wis. 2d at 187. We then turned to a discussion relevant case law. See at id. 187 - 90. primarily upon We relied four cases: Armada Broad casting, Stirn, v. 463, Inc. 2dWis. 516 N.W.2d 357 (1994); Newspapers, Breier, 417, 430, Inc. v. 89 Wis. 2d (1979); N.W.2d ex rel. v. Owens, State Youmans (1965); Village 672, 28 Wis. 2d 137 N.W.2d 470 (Ct. Cohen, Butler v. 163 Wis. 2d 472 N.W.2d 579 (1991). 1991), App. review denied, 475 N.W.2d 584 We recognized "[o]ur consistently found that case law has public policy protecting personal privacy interest 2d at Woznicki, 202 Wis. citizens." reputations forms the and case law statutory 19. The same portions The relevant today. for our decision backdrop court this upon by relied statutory sections the four of the date of since unchanged have remained in Woznicki in examined The cases we decision. the Woznicki or overruled. modified have not been likewise Woznicki we precedent, this established Moreover, in addition to the underscoring decision itself the Woznicki now have persons' privacy in protecting interest important public per- of a right an finding implicit and reputations are interests and reputational son whose seek de novo to request an records impacted See the records. to release of the decision review body prece- 185. Given this Woznicki, 202 2d at any to we could come difficult to see how dent, it is with than one consistent in this case other conclusion in reached Woznicki.6 the conclusion we history legislative argues that the The Journal-Sеntinel legislature has consist reflects that the open records law give custodians any requirement that records ently rejected According to releasing records. subjects before records notice square Journal-Sentinel, only way court could this (1996), Erickson, 549 N.W.2d 202 Wis. Woznicki v. history limit Woznicki to dis would be to legislative this with reasons, reject argument. this attorneys. For three we trict not concern in this case is First, primary note that our we Rather, this requirement. of a notice Woznicki's establishment there is an in Woznicki that determination case involves our decisions. judicial of records custodian's implicit right to review history by the Second, legislative cited most ofthe id. at 192. See Woznicki, determined in which we predates Journal-Sentinel give notice. See requirement do have a that custodians that we Accordingly, it is clear Woznicki, at 193. 202 Wis. 2d the Journal- argument similar to rejected an considered and urges 20. Journal-Sentinel us to limit the judicial de novo review discussed in cases involving сustody attorneys. in of district Undeniably, Woznicki a involved records custodian attorney who district was a and who was referred to throughout opinion by job his title "District Attorney." However, court, in Woznicki, this did not upon touch the effect of the custodian's status as a attorney analyzed district until we had the statu- after tory above, and case law held we had after novo Woznicki had the review, de we after explained had in detail the duties of custodians and the judicial procedure. Woznicki, review See 202 Wis. 2d at Only paragraph then, 181-192. in fifth from the special end decision, did court this mention con- present happen cerns are which when to be custody attorney. of district Id. at 194. Further, this framed court our discussion public Woznicki in terms of custodians; records it was attorneys.7 not limited to district None of the cases we upon establishing important public policy relied as the protecting privacy reputational of individuals’ Sentinel's when we decided in Woznicki that a notiсe there was requirement. Finally, significantly, and most Woznicki has not by been 155j overturned statute. But see 1997 27 Wis. Act § (legislation passed by legislature the and vetoed governor). 7Contrary assertion, ‍​​‌​​​​​​​​​​​​‌‌‌​​​​​‌​‌‌‌‌​‌​​‌​​‌​​​​‌‌​​​‌​‍to the we did Journal-Sentinel's set holding regard forth in our Woznicki in to records custo See, general. Woznicki, e.g., dians in (stating, 2d at 192 "Although previous always our cases have a court's involved review of a custodian's denial a request, of this does not change balancing that a the fact custodian's of for and interests against question is a of disclosure law for which court can judgment.") substitute its attorney custo- as records a district involved

interests (involving a 2d at 468 Armada, 183 Wis. See dian. records); requested custodian of as district school (chief police); Owens, 28 of 2d at 421 Breier, 89 Wis. Waukesha); Village city (mayor of at 675 2dWis. (villages Elm Butler and of 2d at 823 Butler, 163 Wis. of Grove). correctly appeals court of that the conclude We as a district status custodian's the Woznicki held that supporting merely attorney reason an additional was upon holding, the deci- this which the factor not court's 2d at 99 Teachers, 220 Wis. Milwaukee turned. See sion n.2. determining key of the status

¶ 22. The to the nature of law is records under 274. Nichols, Wis. 2d at location. records, not their over sub elevate form would "To conclude otherwise personal containing Records Id. at 275. stance." implicate employee information district about a school privacy protection same concerns the exact hands of a reputation are those records whether attorney, as case, a district in this or district, as school (Abra 2d at Woznicki, 202 Wis. See Woznicki. defy dissenting). common sense It would hamson, J., argu opportunity present give an individual protecting or her his in favor of ments reputational attorney holds a district interests when deny only that individ turn around and such records opportunity in the hands if records are the same ual another custodian. seeks the case, Journal-Sentinel In this discharged persons assignments of and school names this infor- Release of convictions. due to misdemeanor privacy clearly impact and the would mation 792 reputations plaintiffs.8 appears of the It from the plaintiffs only single record of the had that two mis- stemming college demeanor from conviction incidents. preceded Several of the misdemeanor convictions the plaintiffs' by years. termination from MPS over ten plaintiffs satisfactory employ- Most theof had achieved by reviews, ment and the time the case reached this plaintiffs court, employment the six of had been reinstated in their plaintiffs with MPS.9 Disclosure of the 8 presents The Journal-Sentinel arguments several aimed persuading public policy at us that the interests in disclosure of outweigh public protection the information interest in the of the plaintiffs' privacy essence, In reputations. Journal-Sen that, reasons, tinel plaintiffs contends for various have privacy expectations. Among diminished the cases Journal-Sen upon support arguments tinel relies in of these are State ex rel. Arreola, 496, Journal v. Wis. 2d 207 558 N.W.2d 670 /Sentinel (1996), Newspress Sheboygan District, Wisconsin v. Falls School 768, (1996), 199 Wis. 546 v. 2d N.W.2d 143 Zinda Louisiana 913, (1989), Corp., 149 Wis. 2d 440 N.W.2d 548 Pacific /Sentinel, Shorewood, Journal Inc. v. School Board 186 Wis. 1994). (Ct. App. N.W.2d We do further not address Journal-Sentinel's conten- regard. question tions in this The before us is whether an not application balancing records law test would favor contrast, release of the records. In the issue we is whether face plaintiffs any privacy reputational have or interests which they would be of the implicated release records such may present arguments in pol- the circuit court that the icy protecting reputations interest their outweighs public policy releasing interest records. weights The of no competing relative interests is concern stage proceedings. at this initial plaintiffs as a reinstatement of the six occurred result arising bargaining agreement of arbitration from the collective plaintiff, between the MBSD and the MTEA. The seventh who resigned, had did not seek reinstatement. assignments permit plaintiffs

names and school would family persons by to be in members, identified the com munity, supervisors, co-workers, and MPS students. personal plaintiffs' harm Disclosure could relation reputations, ships, tarnish their and undermine their authority empha with students. As Justice Bablitch "[p]rivacy sized in Woznicki, his concurrence in and reputation precious Woznicki, are commodities." (Bablitch, concurring). personal J., Wis. 2d at 195 Once divulged public, per information is to the "the revealed consequences son carries the Id. at 198. forever." See Armada, also 2d 183 Wis. at 474 - 75. deny plaintiffs 24. To in this case the

to a in de novo review the circuit court would be tanta- depriving

mount them in of a forum which to assert important privacy reputational their public employee's and A interests. protecting pri-

interest in his or her vacy reputation might wholly and be adverse to the public employer/records interest of her his or custo- e.g., See, Armada, dian. 183 Wis. 2d at 476. It would be employees untenable, in circumstances, such to force rely protect employers on their their interests. See reputation might id. An individual whose potentially posi- be harmed disclosure is in the best arguments present tion to in nondisclosure, favor of given significance personal pri- nature of the vacy reputational Woznicki, interests. See 202 Wis. 191;Armada, at 183 Wis. 2d at 476. Such an individ- might present arguments ual well in favor nondisclosure that did custodian not con- evaluating request, though sider in the disclosure even requires custodians to "all consider the rele- vant factors."10 Woznicki, 202 Wis. 2d at 191.

10 example provided by An plaintiffs case. instant argued in the court circuit that Nemoir should have taken sev- The Journal-Sentinel

¶25. contends that we dif- ferentiated district from attorneys other custodians Woznicki. important two ways First, according to the Journal-Sentinel, we emphasized that district are attorneys secоndary, rather than primary, Second, custodians. the Journal-Sentinel con- tends that we highlighted district attorneys' broad police powers to bring information of a personal nature into the arena.11

eral factors into determining account when whether to release requested information, the including the nature and staleness convictions, of their plaintiffs' job performance, and the possibility releasing of the information but redacting plaintiffs' assignments. names and school Nemoir testified that'he did not consider these items in performing balancing test. Journal-Sentinel, dissent, argue also that extending Woznicki to records custodians who are not district attorneys will in impermissible delays result obtaining requested argument information. The Journal-Sentinel's upon based State ex rel. Auchinleck v. Town LaGrange, 200 of 585, 595, Wis. 2d (1996), 547 N.W.2d 587 in which this court determined statutory governmental that require notice days ment of 120 apply open did not records law because it frustrated the purpose provision records law stat ing that records comply deny custodians must either or a with request "as practicable soon as delay." without 19.35(4)(a). Stat. § plaintiffs out, however,

As the point litigation, "This which challenge involved a very process to the holding a Woznickide hearing, novo way compared can in no be to the routine adminis- tration procedure." of the Woznicki Pis.' Br. at 21. Had the circuit performed review, court likely de novo it is that it would shortly have delivered its January 27, decision after the 1997, hearing, just or a few weeks after Nemoir notified the plaintiffs See, of his decision to release the e.g., records. Kailin v. Rainwater, (Ct. 134, 137, 226 Wis. 2d App. N.W.2d 865 district attor- did state in Woznicki 26. We create and they did not records which can neys "obtain custodians." the primary are not they for which However, did not at 194. we Woznicki, 202 Wis. 2d 1999) (circuit rendered about de novo review court decision on disclose). decision to after custodian's six weeks Woznicki, this in which Moreover, predates Auchinlеck on courts to requirement impose a blanket court declined response In to Woznicki process judicial review. speed the Bablitch, Auchinleck, the author Justice reference to dissent's concurring opinion that majority opinion, stated his requiring expe delay, circumstances special or "inappropriate summarily by decisions, quickly and dealt with can be ditious adhere to this Woznicki, 2d at 198 - 99.We 202 Wis. the courts." expedite review in a advisable to principle. If courts find it so, but, con case, certainly encourage to do them particular we Woznicki, require it. we do not sistent with delay in inordinate Certainly, do not wish to see we experience If after open records law cases. judicial processing of delay occurring is opinion this shows that such the issuance of level, might this court appeals court of at the circuit court or priority that superintending power to ensure using its consider VII, 3; art. cases. See Wis. Const. given оpen § records law is Jezwinski, 217, 226, 2d 556 N.W.2d v. 206 Wis. Arneson (1996). Arneson, however, do not use emphasized in we As we decline at this time power "lightly," and we superintending our Arneson, 206 Wis. 2d at 226. to do so. invi-

Finally, accept the Journal-Sentinel's we choose not to appellate appropriate standard of contemplate tation to judicial We have de novo review. review of a circuit court's in which we of review in other cases discussed the standard compel or actually circuit courts' decisions have reviewed Newspress, deny See 199 Wis. disclosure of records. Wisconsin 417, 427, Breier, 782; v. 89 Wis. 2d Newspapers, at Inc. (1979). did the circuit court in the instant case Since N.W.2d review, directly question is not engage in a de novo not this time. before us at primary

further discuss the distinction between and secondary explain import. custodians or its As we have already pointed public out, information in records can damaging person's privacy reputation regard- be to a or identity Any may less of the оf the custodian. custodian reputation have interests adverse to individuals whose privacy might e.g., See, be harmed disclosure. Consequently, Armada, 183 Wis. 2d at 476. we do not primary/secondary find the distinction to be determi- judicial native of whether there is a to de novo review of a custodian's decision.

¶ 27. We also noted in Woznicki that district attorneys "extraordinary police powers" allowing have bring extremely private them to information of an public sphere. nature into the Woznicki, 202 Wis. 2d at exception provides 194. The common law which attorneys' open public district case files are not inspection developed part was for this reason. (citing Woznicki, 202 Wis. 2d at 194 State ex rel. Rich Foust, ards v. 429, 433-34, 477 165 Wis. 2d N.W.2d 608 (1991)). already explained, As we have however, the ‍​​‌​​​​​​​​​​​​‌‌‌​​​​​‌​‌‌‌‌​‌​​‌​​‌​​​​‌‌​​​‌​‍purposes location of information is irrelevant determining whether it should be disclosed under the open Nichols, records law. See 199 Wis. 2d at 270. Because the nature of the information determines its status under the law, it doеs not matter highly personal posses whether information is in attorney sion of a district or a records custodian attorney. who is not a district See id. The effect of public employee's privacy disclosure on the individual reputation is scenario, the same in either under the Nichols, rule of so its status under the open records law. implicit reasons, For these we hold that the

right judicial public of a de novo review of a

797 recognized by custodian's decision this court in public employee to an available individual privacy reputational whose or interests would be impacted requested disclosure of records under the judicial This novo law. of de review applies whether or not the custodian the records is a attorney. district ought surprised by holding

¶ 29. to Few be our today. Woznicki, In her in dissent then Justice Abra (now Justice) pointed hamson Chief out that holding applied public in the case to all records custodi (Abrahamson, Woznicki, ans. See dissenting). 202 Wis. 2d at 201 J., very upon She touched situation majority in stated, involved this case when she "The opinion's reasoning regard reputa- with apply example, if, tional interests would the records possession in this case were in the of the school district attorney." rather than the district Id. appeals anticipated

¶ 30. The court of also our holding applied It this case. Woznickito sector public employers public as custodians of records in Klein v. Center, 495, Wisconsin Resource 218 Wis. 2d 487, 582 (Ct. 1998). App. N.W.2d This court denied review in Klein. See Klein v. Center, Wisconsin Resource 219 Wis. (1998). N.W.2d Finally, public

¶ 31. it should be noted that employees apparently routinely have obtained de novo judicial review of the decisions records custodians attorneys. E.g., Kailin other than district Rainwater, v. (Ct. 1999). App. 2d 134, 137, 226 Wis. 593 N.W.2d 865 widely interpreted by Likewise, Woznicki has been binding upon public entities as records custodi attorneys. important ans are not who district It is plaintiffs note that Nemoir crafted his letter assumption applied this case under the that Woznicki in this case.12

l-H I—II—I judi- ¶ 32. We cоnclude that the of de novo provided by cial review this court in Woznicki is requested available whether or not the custodian of the public attorney. Accordingly, records is a district we appeals affirm the court of and remand this case to the circuit court to conduct a de novo review of Nemoir's performing decision to release the records, the balanc- ing required by obviously, test Quite law.13 sought by information the Journal-Sentinel is to remain confidential until such time as the circuit court complete is able to its review.

By appeals the Court.—The decision of the court of affirmed, and the cause is remanded to the circuit proceedings court for further consistent with this opinion.

12 Nemoirstated in plaintiffs his letter to the that he was notifying them of his decision to disclose information as a result of the Woznicki decision. He indicated that MPS would days allow ten from the date of plaintiffs the letter for the "to challenge court, MPS' provided decision in as the Woznicki 1997, Pls.' Tr., Hearing decision." See Jan. Ex. 2. 13The Journal-Sentinel contends that rather than remand ing case, perform this court balancing should test and determine whether question ought the information in to have been released. We decline to do so. preferable We took the course in Woznicki when we remanded the case to the circuit court for that court to determine applied whether the custodian and, proper balancing so, test if to review de novo the custo Woznicki, dian's decision to release the records. See 2dWis. at 195. (concurring). BABLITCH, J. A. 33. WILLIAM great per- private deal of There is are a citizen.

You your background, you, information about sonal family your in a that is stored in a document publicly released, is information, if Some of that office. embarrassing. potentially highly harmful to Some is you, request family. you your a is Unknown to the The custodian decides document. made for that the released under document should be you right and heard the to be notified Should have law. the document? Should custodian releases the before you party right review a neutral third the to have have says no. The The dissent the custodian's decision? majority majority says yes. agree and write I with thé only to address the dissent. principle

¶ Is it fair to is fairness. 34. The basic deny person or to have facts about his a who is about right heard and the the to be her life revealed to right Is it fair to to that decision reviewed? the have right requester give to of that information (as provided by request appeal Wis. if the 19.35(4)(b)), is denied subject § of that but not allow Stat. right? request the same majority Although

¶ does not raise the 35. dimension, I believe the lack of a constitutional issue to process issues. fairness raises due fundamental Due Clause of requirement root Process The " individual Amendment is 'that an the Fourteenth [or he hearing for a given opportunity be an before protected inter- deprived any significant is she] " Loudermill, Education v. est.' Clеveland Board of omitted). (1985) (footnote The 532, 470 U.S. 542 and some kind of provide must notice government life, lawfully deprive anyone it hearing before can to liberty, By requiring government or property. 800 appropriate procedures, follow the Due Process decisions. Daniels in such promotes Clause fairness (1986). Williams, 327, v. 474 U.S. 331 statement, In classic Brandéis char his Justice "the let alone as right acterized be ..." the most rights and the most valued comprehensive of States, See Olmstead v. United society. a civilized (1928) 438, (Brandeis, J., dissenting). 277 U.S. Constantineau, v. Wisconsin In 400 U.S.

(1971), the Court that a Supreme protect U.S. held liberty able interest is implicated "[w]here name, honor, good or person's reputation, integrity government doing is at stake because what Id. at 437. to him...." Erickson, 178, 196, v. 549 N.W.2d (1996) (Bablitch, concurring). J. speak dissent does not to the issue of only efficiency: speaks

fairness. It to the issue of it long, says person dissent, takes too to allow the object, person appeal. to allow admittedly, is, 37. There a tension between the sought protected by majority opinion interests the be dissenting opinion. and the majority protect

¶ 38. The seeks to the interests safety. privacy, personal reputation, of of of individual protect public The the of the dissent seeks to majority The seeks to reconcile both interests. know. completely unnecessarily The dissent and sacrifices reputational, safety privacy, and interests in the name efficiency. of Efficiency, says, trumps

¶ 39. dissent all. appeals. ¶ 40. Pencils Courts allow have erasers. decisions are All we Administrative reviewed. because recognize inevitability human error. Judicial of underpinnings of our review is one of the fundamental protects against protects Constitution. It error. It govern- unnecessary against of intrusion individual private dissent, in its The lives. ment into our stop interpretation law, not records does of intrusion, it fosters it. this public are human.

¶41. of Custodians the case of Witness make mistakes. And humans 323, 575 N.W.2d Charles, v. Monfils 1998). (Ct. police anonymous App. to the call comes An impending warning The call is department theft. of an tape. requests taped. custodian of the The thief brutally ‍​​‌​​​​​​​​​​​​‌‌‌​​​​​‌​‌‌‌‌​‌​​‌​​‌​​​​‌‌​​​‌​‍tape later found him. Monfils is it to releases colleagues, alleged are thief, some and murdered. The retrospect, of the the release murder. In of convicted tragic tape mistake. was a City v. Mil case of Weiss 42. Or witness (1997). Ms. 95, 559 N.W.2d

waukee, 208 2dWis. requested information be that her residential Weiss kept her fear of her abusive confidential because telephone threatening his husband and abusive city, falsely himself, identified calls. He called including requested information, the residential pro telephone record The custodian number. regularly Subsequently, she was it to him. vided informing telephoned husband, her he her at work telephone number, address and her home now knew children. Her kill her and their two and that he would existing true, her then this was awareness change inability her residence, caused her finаncial release of the informa distress. The severe emotional tragic sought was a mistake. tion 1) realities: underline two basic 43. These cases benign, public requesters public records are not all 2) spirited custodians of citizens; and tragic conse- mistakes. mistakes can have Those make great physical quences. Weiss, In Monfils only guess emotional harm resulted. We can at the privacy, reputational, safety harm done to or interests in other cases when custodians make a mistake. efficiency,

¶ 44. i.e., Total the immediate release says, necessary document, of a the dissent to main- disagree tain an effective records law. I for two many public requests First, reasons. do not personnel requests all, involve at such as for minutes, government They contracts, and the like. are not by majority affected quate decision at all. Second, ade- by measures can be taken court, this or the legislature, prompt delay to assure a review. The greatly could, this case Ways future, be ameliorated. speed appeals, can be found to to accommodate all interests.

¶ efficiency 45. There are times when must be greater principles. efficiency sacrificed for If were the only sought objective, scarcely after we would have cho- democracy government, sen scarcely as our form of we would guiding

have chosen our constitution to be our Efficiency always force. is not the lodestar of human achievement. prefer

¶ majority 46. I the road chosen opinion. constitutionally statutorily, Both it is the deny outright, correct road. It does not the information completely as the dissent denies heard; to be merely delays delay it price it. And seems a small pay protected. interests that remain j maj ority opinion. 47. I oin the I am authorized to state that Justices DON- ALD W. STEINMETZ, JON P. WILCOX, and N. join PATRICK CROOKS this concurrence.

¶ 49. ABRAHAMSON, SHIRLEY S. CHIEF (dissenting). JUSTICE. taining This case involves records con government employee information about a salary paid majority whose is for with tax dollars. The opinion ignore legislature's and concurrence the statu tory employees commands: Government are public. government accountable to the The conduct of employees subject public in their official duties is scrutiny. Open Under the Wisconsin Records the Law people "greatest possi of the state are "entitled" to the ble information" about the "official acts" of the "employes represent "[D]enial public who them."1 generally contrary public access is to the interest, and only exceptional may in an case access be denied."2 majority

¶ 50. I dissent because the and concur- ring opinions open away rewrite law, do legislatively "presumption complete with the public created public severely damage access" to records and open the core function of the records law.3 willingly acknowledge importance I privacy reputational majority and interests. What concurring opinions acknowledge, and fail to however, correctly is that the issue framed is a balance between privacy open government. two interests: and majority concurring opinions attempt The and to con- by incorrectly framing fuse the discussion the issue as privacy efficiency. ploy transparent. versus is majority concurring opinions 52. The by refusing recognize obscure the discussion that in enacting open legislature law has already performed the balance between government. majority concurring Both the (1997-98). Wis. Stat. 19.31 § (1997-98). Wis. Stat. 19.31 § (1997-98). Wis. Stat. 19.31 § attempt opinions balance, to redo the not because justices legally infirm but because these balance differently have decided the balance from would They judg- legislators. proceed their to substitute own legislative clearly expressed matters ment judgment legislators, process, they and in the open government. tradition of undermine Wisconsin's legislature proce- ¶ 53. The has established the public requester dure for access to records. First the asks for the records.4 Then the custodian of the records public interest of the to be informed on balances the public against reputation matters the harm to government employee.5 If the records custodian denies public legislature records, access to the allows the requester go get opened.6 to court to the records But legis- record, if the custodian decides to release the provided government employee lature has not who subject go opportunity is the of the records with keep legislature to court to the records closed. The custodians, courts, makes the not the the deci- record release sion makers of records.7 custodian, I conclude that a records when attorney, other than a district balances the interests open governmеnt and decides to release govern- that contains information about a record employee response request ment in to a made under government law, that Wisconsin's employee entitled to court of the custo- not review Why dian's decision. do I reach this conclusion? 4 (1997-98). Wis. Stat. 19.35 § 5 Dist., Newspress, Sheboygan Falls Sch. Wisconsin Inc. v. (1996). 768, 778, 199 Wis. 2d 546 N.W.2d 143 6 (1997-98). (4), Wis. Stat. 19.35 19.37 §§ (1997-98). Wis. Stat. 19.37 § legislature that's Because what mandated. Accord- ingly, I dissent. opinion today significantly

¶ 55. The extends Erickson, Woznicki v. 549 N.W.2d (1996). my disagreement I to state write with this proceed, extension. Before I I want the reader to know that I dissented in I Woznicki stand behind is, however, that dissent. Woznicki the law Wiscon- sin, at least until it is reversed this court or the legislature accept I amends the law. therefore binding precedent, reluctantly. as albeit expressly

¶ 56. The Woznicki court limited its custody attorney decision to records of a district why explained attorney a district is treated differ- ently from other custodians of records. The Woznicki holding paragraрh court stated its opinion in the first special follows: "We. . .hold that as because public policy reasons that are raised when a district attorney gathered during chooses to release materials investigation, the course of a criminal the district attorney's subject decision to release these records is by de novo Woznicki, review the circuit court." 202 Wis. holding 2d at 181. The Woznicki court restated its paragraph opinion "[We] the last of the as follows: hold Attorney's that the District decision to release these subject by records is to de novo review the circuit Woznicki, court." 202 Wis. 2d at 295. portion reasoning

¶ 57. A of the in Woznicki can unfortunately be directed to all custodians of records. explained my "[although As I dissent, its holding ostensibly by is limited to records held a dis- attorney.. reasoning majority opinion trict .the of the is directed to the custodians of all records rather than to a attorney, district the custodian in Woznicki, this case." (Abrahamson, dissenting). J., 2d at 201 reasoning ¶ 58. But the of Woznicki need not be attorney serving directed to all custodians. A district as distinguishable a record custodian is from other record opinion explained. custodians, as Woznicki That distinction can and should be maintained. Extending judicial

¶ 59. the notice and review processes set forth in Woznicki to all custodians of majority today, records, as the does contravenes language, spirit purpose open of the records law. open explicitly "[ejxcept records law states that as provided by any requester law, otherwise has a inspect any open record."8 The records law enacted legislature exception the Wisconsin makes no for notice subject request provide to the of a record nor does it judicial of a review custodian's decision to release a majority opinion only misinterprets record. The not open huge exception records law but also writes a into exception open it. If an to the record law is needed to subject protect request, legislature a of a record government the branch of to enact it. This court should legislate. not

hH I—I majority Further, I dissent because the opinion sufficiently justify holding fails to its expansion simple example of Woznicki. One should suf- legislative history fice. The law, record as set forth in the Journal brief, Sentinel shows that the legislature rejected proposed requirement Wisconsin give subject request that a custodian of a records releasing sought by subpoena. notice before See 19.35(1)(a) (1997-98). 8 Wis. Stat. § 1981 S. Bill 250 S. Amend. 1 to S. Amend. 2 to Subst. (LRBa Amend, (LRB-0100/1); S. Bill 250 A. to 1981 2832/3). way only argues that the Journal Sentinel legislative history is to with Woznicki reconcile this attorneys. to district limit the reach of Woznicki majority opinion ¶ dismisses 61. In 6 the footnote history saying predates legislative by it Woznicki. this point. misses the True, does, it this footnote some of but a decision is that reason this court re-examine One will reaching its information the decision has overlooked this court never considered The Woznicki conclusion. history. legislative the briefs in Woznicki None of history, legisla- legislative and the case mentioned concurring majority, history appear in not tive does dissenting opinions court. of the Woznicki or Ironically, post- majority also dismisses 62. legislature expressed legislative history. The require- disapproval general pre-release a notice its open law in the 1997 biennial ment under the budget Although 155j. § 1997 Wis. Act 27 Governor bill. grounds Thompson provision this on that it was vetoed "non-budgetary be instead debated as should glad separate also he "would be bill," he declared that legisla- provision with the advocates of this on to work preserve spirit of our tion that would (Oct. Message, A.J. at law." Governor's Veto 1997).

HHHHHH major- Furthermore, I dissent because the ity opinion aside Journal Sentinel's brushes argument extending practical result that Woznicki will majority impermissible delays. In 11 the footnote opinion, promises, opinion as did the Woznicki delay summаrily inappropriate can be dealt with expeditious procedure the courts. Yet it sets forth no for handling proceedings. type Woznicki Furthermore the majority power refuses to exercise its the review majority records and decide this case. Instead the remands the case to the circuit court for a decision possible appeal. further majority ignores opinion

¶ 64. The the time-con- suming appellate processes trial and we are know occurring. For instance, in Klein v. Wisconsin (Ct. Center, 487, Resources Wis. 2d 218 582 44 N.W.2d 1998) (cited App. favorably by majority opinion the at 798), request the for records 30, was made on June enjoined 1996. The circuit court the custodian from releasing July 16, the on 1996, records and entered judgment February appeals 27, on 1997. The court of April years issued its 1, 1998, decision on almost two request after the for the was records made.

¶ Rainwater, 65. In Kailin v. 134, 2d at Wis. favorably by majority opinion cited the in footnote 11 as illustrating period making a short time for decision request Woznicki, under for records was made January subject 18, 1996. on November On 9, 1997, the request sought of the record review of the custodian's decision to release the records in the circuit court. The February circuit 10, court issued its decision on 1998. appeals court 31, issued its decision on March years request 1999, more than two after the for the was, records was made. The case Kailin to use the majority's phrase, a routine administration procedure. recently,

¶ Brothers, 66. Most in Kraemer Inc. v. (Ct. County, App. Dane 599 N.W.2d 1999), years elapsed request three from the appeals court decision. years case, this than two have In more passed custodian conducted his since January 3, 1997, to release the and decided on review public A about the records has records. final decision yet for that deci- made. The case is remanded not been today, majority opinion rendered sion. Under commonplace. delays similar will become significantly 68. This decision erodes open government in I this state. there- records law fore dissent. ‍​​‌​​​​​​​​​​​​‌‌‌​​​​​‌​‌‌‌‌​‌​​‌​​‌​​​​‌‌​​​‌​‍state that I am authorized to JUSTICE joins this BRADLEY dissent.

ANN WALSH (dissenting). I Prosser, 70. David T. Jr. dissent.

Case Details

Case Name: Milwaukee Teachers' Education Ass'n v. Milwaukee Board of School Directors

Court Name: Wisconsin Supreme Court

Date Published: Jul 8, 1999

Citation: 596 N.W.2d 403

Docket Number: 97-0308

Court Abbreviation: Wis.