73 Op. Att'y Gen. 20 | Wis. Att'y Gen. | 1984
KEITH R. ZEHMS, Corporation Counsel Eau Claire County
You have requested my opinion as to whether records relating to labor grievances of Eau Claire County employes are accessible under the state public records law in subchapter II of chapter 19, Stats.
Apparently the records are kept by the county's personnel director. Therefore, they are "records" kept by an "authority" as those terms are defined in section
Section
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 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.
This provision recognizes three possible bases for denying access to public records: (1) express statutory exemptions; (2) exemptions *21
under the open meetings law if the requisite demonstration is made; and (3) common law principles. The crux of the common law on public records is the "balancing test" which provides that the custodian "must balance the harm to the public interest from public examination of the records against the benefit to the public interest from opening these records to examination, giving much weight to the beneficial public interest in open public records." State ex rel. Bilder v. Delavan Tp.,
Express statutory exemptions to the public records law are contemplated further in section
Limitations upon access and withholding. (1) APPLICATION OF OTHER LAWS. Any record which is specifically exempted from disclosure by state or federal law or authorized to be exempted from disclosure by state law is exempt from disclosure under s.
19.35 (1), except that any portion of that record which contains public information is open to public inspection as provided in sub. (6).
An example of an express statutory exemption is section
I have found no statute that expressly makes labor grievance records confidential.
As to exemptions under the open meetings law, you point out correctly that section
Moreover, just because a subject falls within the purview of an exemption to the open meetings law does not necessarily mean that a meeting to discuss that subject must be closed. Whether to go into a closed session based on any one of the exemption provisions is a discretionary matter for the governmental body, because section
The fact that the exemption provisions may justify, but do not compel, a closed meeting is reflected in that part of section
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 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.
The statute recognizes that in the exemption provisions the Legislature has identified categories of sensitive information, but the Legislature has not mandated that all such information be withheld all the time. In my opinion the exemptions under section
Likewise, it is my opinion that the common law balancing test must be applied by the custodian on a case-by-case basis. 63 Op. Att'y Gen. 400, 401 (1974).
As part of your request you advocate the position that the blanket confidentiality of grievance records is necessarily implied by section
"Governmental body" means a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule *23 or order; a governmental or quasi-governmental corporation; or a formally constituted subunit of any of the foregoing, but excludes any such body or committee or subunit of such body which is formed for or meeting for the purpose of collective bargaining under subch. IV or V of ch. III.
You note that grievance procedures are considered to be an aspect of collective bargaining. Sec.
Your reasoning and reliance on section
First, you would imply a blanket categorical exception to the public records law when the law itself states it will accommodate only specific statutory exemptions. Sec.
Secondly, the exception of collective bargaining meetings from the open meetings law under section
In my opinion the exception of collective bargaining meetings from the open meetings law under section
BCL:RWL *24