Thomas Woznicki vs. Dennis Erickson (Wisconsin Supreme Court Ruling)

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NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No.
94-2795
STATE OF WISCONSIN
:
IN SUPREME COURT
Thomas J. Woznicki,
FILED
Plaintiff-Appellant,
v.
JUNE 25, 1996
Dennis W. Erickson, Assistant District
Attorney,
Marilyn L. Graves
Clerk of Supreme Court
Madison, WI
Defendant-Respondent-Petitioner.
REVIEW of a decision of the Court of Appeals.
Reversed and
cause remanded.
WILLIAM A. BABLITCH, J.
Dennis W. Erickson, an Assistant
District Attorney for St. Croix County (District Attorney), seeks
review of a published decision of the court of appeals holding
that public employee personnel records are exempted from the open
records law.
The court of appeals further held that Thomas J.
Woznicki's (Woznicki) private telephone records, which are being
held by the District Attorney, are not public records within the
meaning of the open records law.
records
law
does
not
provide
a
We conclude that the open
blanket
exemption
for
employee personnel records or Woznicki's telephone records.
public
These
No. 94-2795
records are, therefore, open to the public unless there is an
overriding public interest in keeping the records confidential.
We further recognize the reputational and privacy interests that
are inherent in such records, and hold that because of special
public policy reasons that are raised when a district attorney
chooses to release materials gathered during the course of a
criminal
investigation,
the
district
attorney's
decision
to
release these records is subject to de novo review by the circuit
court.
Accordingly, we reverse the court of appeals.
The
facts
are
undisputed.
In
April
1994,
Woznicki
was
charged with having consensual sex with a minor over the age of
sixteen
in
violation
of
Wis.
Stat.
§
948.09
(1993-94).1
A
criminal investigation ensued, during which the St. Croix County
District
Attorney's
office
personnel
file
his
from
subpoenaed
employer,
the
Woznicki's
New
complete
Richmond
School
District, and Woznicki's personal telephone records.
In
July
1994,
against Woznicki.
the
District
Attorney
dismissed
the
case
Subsequently, Woznicki moved the circuit court
for an order prohibiting the District Attorney from releasing his
personnel and telephone records.
The circuit court denied this
motion based on the premise that as custodian of the records, the
District Attorney had sole discretion to decide whether to release
them.
1
All future statutory references are to the 1993-94 volume
unless otherwise indicated.
2
No. 94-2795
The District Attorney notified Woznicki that there had been
two
requests
for
his
file.
One
of
the
requests
was
from
Woznicki's employer and the other request was from the father of
the complainant.
The District Attorney informed Woznicki that he
intended to release the records to the two requesters.
Consequently,
temporary
Woznicki
injunction
moved
prohibiting
the
the
circuit
District
releasing his personnel and telephone records.
court
for
Attorney
a
from
The circuit court
denied the motion for a temporary injunction, but ordered that if
Woznicki filed an appeal, the District Attorney would be enjoined
from releasing the records until the issue was resolved.
Woznicki
appealed the circuit court's decision denying his motion for a
temporary injunction.
The court of appeals interpreted the open records law to
restrict public access to personnel records of public employees.
The court created a categorical exemption from disclosure for all
public employee personnel records.
The decision of the court of
appeals also narrowed the definition of a "record" subject to the
open records law by excluding Woznicki's telephone records in the
custody of the District Attorney, reasoning that they were private
records
created
by
a
private
entity.
The
court
of
appeals
therefore reversed the circuit court's order and remanded the
matter
with
injunction
directions
prohibiting
to
the
grant
District
3
Woznicki's
Attorney
motion
from
for
an
disclosing
No. 94-2795
Woznicki's personnel and telephone records.
The District Attorney
now seeks review.
The case presents the following issues.
personnel
records
records law.
are
exempt
from
disclosure
First, whether
under
the
open
Second, whether Woznicki's telephone records are
exempt from disclosure under the open records law.
Third, if
either or both are not exempt, whether the District Attorney's
decision to release them is subject to judicial review.
The
application of a statute to an undisputed set of facts presents a
question of law which we review de novo.
Village of Butler v.
Cohen, 163 Wis. 2d 819, 825, 472 N.W. 2d 579 (Ct. App. 1991).
The first issue is easily answered.
Inc. v. School Dist. of Sheboygan Falls,
In Wisconsin Newspress,
Wis. 2d
, 546 N.W.2d
143 (1996), this court held that no blanket exception exists under
the open records law for public employee disciplinary or personnel
records.
Id. at 143.
Instead, "the balancing test must be
applied in every case in order to determine whether a particular
record should be released, and there are not blanket exceptions
other than those provided by the common law or statute."
147.
Id. at
For the reasons articulated in Newspress, we conclude that
Woznicki's personnel records are not exempt from disclosure under
the public records law.
They are subject to the balancing test to
determine whether permitting inspection would result in harm to
the
public
interest
which
outweighs
4
the
legislative
policy
No. 94-2795
recognizing the public interest in allowing inspection.
Breier,
89 Wis. 2d at 427.
The second issue is whether Woznicki's telephone records are
exempt from the open records law.
Despite the private nature of
Woznicki's telephone bills, the telephone records in this case
fall
within
the
statutory
definition
of
a
public
record.
Wisconsin Stat. §19.32(2) defines "records" as "any material on
which . . . information is recorded or preserved . . . [or]
created or is being kept by an authority."
Wisconsin Stat. §
19.32(1) defines "authority" as a "state or local office, elected
official, agency [or] board" who has "custody of a record."
There
is no question that the District Attorney constitutes a proper
authority under the clear meaning of the statute.
Therefore,
Woznicki's telephone records are not exempt from the open records
law when they are held by the District Attorney.
The records are
subject to the balancing test as stated above.
Having
decided
that
Woznicki's
personnel
and
telephone
records are not exempt from the open records law, we address the
final issue:
whether the District Attorney's decision to release
them is subject to judicial review.
The District Attorney argues that the law does not provide a
cause of action for anyone seeking to deny access to his or her
records,
only
for
one
seeking
to
compel
disclosure.
If
an
authority refuses to release a record, the requester may seek a
5
No. 94-2795
writ of mandamus to compel release under Wis. Stat. § 19.37(1).2
The District Attorney asserts that there is no parallel action
through which an individual may seek to compel the custodian to
deny access to public records.
We agree with the District Attorney that the open records law
does
not
explicitly
Woznicki's position.
provide
a
remedy
for
an
individual
in
Yet a review of our statutes and case law
persuades us that a remedy, i.e., de novo review by the circuit
court, is implicit in our law.
consistently
citizens
to
Woznicki's
recognized
privacy
interests
the
and
in
the
The statutes and case law have
legitimacy
of
the
protection
of
their
privacy
and
interests
of
reputations.
reputation
would
be
meaningless unless the District Attorney's decision to release the
records is reviewable by a circuit court.
The fact that the open
records law does not create a separate cause of action does not
mean that Woznicki is without redress.
2
For the reasons stated
Wis. Stat. 19.37(1) states:
(1) Mandamus. If an authority withholds a record or a part
of a record or delays granting access to a record or
part of a record after a written request for disclosure
is made, the requester may pursue either, or both, of
the alternatives under pars. (a) and (b).
(a)
The requester may bring an action for mandamus
asking a court to order release of the
record. The court may permit the parties or
their attorneys to have access to the
requested
record
under
restrictions
or
protective
orders
as
the
court
deems
appropriate.
6
No. 94-2795
below,
we
conclude
that
the
District
Attorney's
decision
to
release Woznicki's records is subject to de novo review by the
circuit court.
Several sections of the Wisconsin statutes evince a specific
legislative intent to protect privacy and reputation.
general right to privacy under Wis. Stat. § 895.50.3
There is a
The open
records law recognizes that the exceptions to the companion open
meetings law are indicative of public policy on the issue of the
disclosure of public employee personnel files.
See Wis. Stat. §
19.35(1)(a). Wisconsin Stat. § 19.85(1) provides that governmental
meetings may be closed for certain purposes involving privacy and
reputational concerns:
19.85 Exemptions. (1) . . . A closed session may be held
for any of the following purposes:
. . .
(b) Considering dismissal, demotion, licensing or
discipline of any public employe or person licensed by a
board or commission or the investigation of charges
against such person, or considering the grant or denial
of tenure for a university faculty member, and the
taking of formal action on any such matter; . . . .
. . .
(c) Considering employment, promotion, compensation or
performance evaluation data of any public employe over
which the governmental body has jurisdiction or
exercises responsibility.
3
Wis. Stat. § 895.50(1) states, in part:
The right of privacy is recognized in this state. One whose
privacy is unreasonably invaded is entitled to the
following relief[.]
7
No. 94-2795
. . .
(f) Considering financial, medical, social or personal
histories or disciplinary data of specific persons,
preliminary consideration of specific personnel problems
or the investigation of charges against specific persons
except where par. (b)
applies which, if discussed in
public, would be likely to have a substantial adverse
effect upon the reputation of any person referred to in
such histories or data, or involved in such problems or
investigations.
It is significant to note that Wisconsin Stat. § 103.13(6)4
gives employees limited rights to view their own employment file.
The employee's representative can view the file only with the
written permission of the employee.
See § 103.13(3).
Section
103.13 is a strong legislative pronouncement that privacy and
reputational interests are deserving of protection.
We also note
that
secretary
Wis.
Stat.
§
230.13(1)(c)
permits
a
state
or
administrator to keep personnel records closed to the public when
they involve disciplinary actions of employees.
4
Wis. Stat. § 103.13(6) states, in relevant part:
(6) Exceptions.
The right of the employe or the
employe's designated representative under sub. (3) to
inspect his or her personnel records does not apply to:
. . .
(e)
Information of a personal nature about a
person other than the employe if disclosure
of the information would constitute a clearly
unwarranted invasion of the other person's
privacy.
8
No. 94-2795
Together,
the
above-referenced
statutes
evince
a
clear
recognition of the importance the legislature puts on privacy and
reputational interests of Wisconsin citizens.
Our case law has consistently recognized a public policy
interest in protecting the personal privacy and reputations of
citizens.
In State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137
N.W.2d 470 (1965), we stated that documents which would unduly
damage a reputation should not be released.
"We determine that
this legislative policy of not disclosing data which may unduly
damage reputations carries over to the field of inspection of
public records . . . ."
Id. at 685.
In Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W. 2d
179 (1979), this court cited Youmans and held that there is a
public policy interest in the protection of the reputations of
individuals.
Id. at 430.
In Breier, a newspaper sought access to
the initial charges of people arrested.
The chief of police
conceded that the daily arrest record was a public record.
This
court allowed access to the records, but also stated that the
chief of police,
asserted a legitimate concern for the rights of individuals
in their reputations which must be recognized by this
court. This legitimate concern for the reputations of
citizens is a matter of public interest and must be
weighed against the interest of the public in having the
records open.
Id. at 433.
Justice Coffey, in his dissent in Breier, made an
important point:
9
No. 94-2795
[T]he damage to the person arrested through disclosure and
publication is irreparable. If any balancing were to be
done between the reputational interest of the individual
and the newspaper's right to have this piece of gossip
gift wrapped for publication, there is no doubt that the
scales of justice would weigh heavily on the side of the
individual.
Id. at 442.
In Village of Butler v. Cohen, 163 Wis. 2d 819, 472 N.W. 2d
579 (Ct. App. 1991), the court of appeals held that the personnel
records of village police officers in that case were not subject
to
disclosure
interests
under
favoring
the
public
records
nondisclosure
law.
outweighed
Public
the
presumption that the records should be open to the public.
829-30.
policy
general
Id. at
These public policy interests included the protection of
privacy and reputational interests, potential inhibition of candid
assessments of employees in personnel records, and protection of
reputations of individual police officers. Id. at 828.
Furthermore, the supreme court has recognized that protecting
the reputations of individuals is a public policy
interest . . . .
. . .
Likewise, sec. 103.13, Stats., is indicative of our
state's public policy of protecting an individual's
privacy and reputational interests even to the extent
that certain employee matters may be closed to
inspection to the employee himself or herself. Section
103.13(6).
Id. at 830-31.
The court of appeals in Butler relied on the fact
that, although the case was not governed by a "clear statutory
exception," our legislature repeatedly has recognized a public
10
No. 94-2795
policy interest in limiting access to personnel files of public
employees.
Id. at 829.
In Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d 463, 516
N.W.2d 357 (1994), this court again recognized the importance of
an individual's privacy and reputational interests.
In Armada, a
broadcaster brought an action under the open records law for a
writ of mandamus to compel a school district to allow access to
sexual
harassment
district.
and
grievance
reports
against
the
school
The subject of the record's request, Schauf, sought to
intervene in the action.
This court held that Schauf had "a
unique and significant interest in attempting to persuade the
court that this report should remain closed."
Id. at 474.
We
stated that:
Schauf has a general right to privacy under Wisconsin
law. See sec. 895.50, Stats. Further, several sections
of the Wisconsin statutes evince a specific legislative
policy of protecting privacy and confidentiality in
employee disciplinary actions.
. . .
We have also recognized that there is a public-policy
interest in protecting the reputations of citizens.
Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 430, 279
N.W.2d 179 (1979) . . . . This heightened significance
given to privacy and reputation leads us to conclude
that Schauf's interest in keeping the Weiland report
closed is sufficient to satisfy sec. 803.09(1), Stats.
Id. at 474-75.
The District Attorney correctly points out that Armada did
not specifically reach the question of whether or not a record
should be closed or whether Schauf had the right to close it.
11
No. 94-2795
However, in concluding that Schauf did have a right to intervene,
we recognized that an individual who is the subject of a record
request has protectable privacy and reputational interests.
In Armada, the legal custodian agreed with Schauf that the
records
should
recognized
that
not
be
Schauf's
disclosed.
interests
Nonetheless,
were
distinct
because
we
from,
and
possibly adverse to, the custodian, we allowed him to intervene.
Id. at 476. We stated:
The . . . report contains speculative and uncorroborated
information about Schauf which could cause great harm to
Schauf's reputation and future career as a school
teacher.
Consequently, Schauf has a unique and
significant interest in attempting to persuade the court
that this report should remain closed.
Id. at 474.
Woznicki's interests are even more compelling than those of
Schauf in Armada.
Here, the District Attorney takes the position
that he will release the records.
Unless Woznicki is allowed some
review of the District Attorney's decision, he is without recourse
in protecting his asserted privacy and reputational interests.
Like Schauf, Woznicki has a unique and significant interest
in attempting to persuade a court that his personnel and telephone
records should remain closed.
Woznicki may well present arguments
to the court that the District Attorney, being the secondary
custodian of the records, did not even consider.
In fact, there
is some question as to whether the District Attorney properly
considered all the competing public interests in this case, or at
12
No. 94-2795
the very least, whether he considered arguments put forth by
Woznicki.
In an exchange with the circuit court, the District
Attorney stated:
But I don't think there's any case law that says before
a custodian of records can release the contents of its
file it must satisfy some particular private person that
it has balanced these factors to that person's
satisfaction or that person's view of -- of the public
interests involved.
. . .
I don't think there's any basis or any authority for the
Court ordering that the District Attorney now has to
somehow at some point before somebody articulate his or
her view of the public interest and balancing factors
before exercising his or her discretion . . . .
Regardless of what the District Attorney did or did not do,
it is the duty of the custodian of public records, prior to their
release, to consider all the relevant factors in balancing the
public interest and the private interests.
In Breier, we set
forth the procedure a custodian must follow when an open records
request is made:
In the first instance, when a demand to inspect public
records is made, the custodian of the records must weigh
the competing interests involved and determine whether
permitting inspection would result in harm to the public
interest
which
outweighs
the
legislative
policy
recognizing the public interest in allowing inspection.
Breier, 89 Wis. 2d at 427.
The duty of the District Attorney is to balance all relevant
interests.
Should the District Attorney choose to release records
after the balancing has been done, that decision may be appealed
to the circuit court, who in turn must decide whether permitting
13
No. 94-2795
inspection would result in harm to the public interest which
outweighs the public interest in allowing inspection.
Whether
harm to the public interest from inspection outweighs the public
interest in inspection is a question of law.
Id.
Our courts have
repeatedly held that the balancing of the public interests for and
against disclosure is a question of law to be reviewed by a court
de novo.
Village of Butler, 163 Wis. 2d at 823; Wisconsin State
Journal v. UW-Platteville, 160 Wis. 2d 31, 40, 465 N.W.2d 266 (Ct.
App. 1990); Breier, 89 Wis. 2d at 427.
Although our previous
cases have always involved a court's review of a custodian's
denial of a records request, this does not change the fact that a
custodian's balancing of interests for and against disclosure is a
question of law for which a court can substitute its judgment.5
5
Support for our conclusion can be found in United States
v. Gerena, 869 F.2d 82 (2d Cir. 1989), in which the Second Circuit
Court of Appeals addressed a similar issue: whether prosecutors
could publicly disclose materials obtained through electronic
surveillance when such disclosure would harm the privacy interests
of those involved.
Although Gerena dealt with Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §
2510 et seq. ("Title III"), we find the case analogous in several
respects to the case we deal with today.
Gerena recognized that there was a problem when the
"government [is] the sole arbiter of what should be publicly
disclosed, since once a paper is publicly filed, the damage is
done." Id. at 85. We agree. In the present case, as soon as the
District Attorney releases Woznicki's personnel and telephone
records, the damage to his privacy and reputational interests is
done.
Just like our public records statute, Title III did not
address this question. The Gerena court concluded that it was the
district court's responsibility to balance the privacy interests
of the individual against the public interests in disclosure. Id.
at 85. We too leave the balancing of public and private interests
14
No. 94-2795
Because we conclude that an individual whose privacy or
reputational interests are implicated by the district attorney's
potential release of his or her records has a right to have the
circuit court review the District Attorney's decision to release
the records, it necessarily follows that the District Attorney
cannot release the records without first notifying that individual
and allowing a reasonable amount of time for the individual to
appeal
the
decision.
In
this
case,
the
District
Attorney
properly gave notice to Woznicki that two requests had been made
for his file.
We agree with the policy and purpose underlying the open
records law: to provide the broadest possible access of the public
to public records.
absolute.
However, the right to public access is not
In this case, Woznicki has important interests in
privacy and reputation that warrant protection under our law.
There are special public policy concerns that are raised when
a district attorney chooses to release materials gathered during
the course of a criminal investigation.
In State ex rel. Richards
v. Foust, 165 Wis. 2d 429, 433-34, 477 N.W.2d 608 (1991), this
court concluded that "the common law provides an exception which
protects the district attorney's files from being open to public
(..continued)
to the circuit courts. The Gerena court also concluded that when
the government publicly discloses documents, "the government must
give defendants notice and the opportunity to object."
Gerena,
869 F.2d at 86. So too in the present case, Woznicki has a right
to notice and the right to be heard in court of law. See also In
re The New York Times Co., 828 F.2d 110 (2d Cir. 1987).
15
No. 94-2795
inspection."
Recently, in Nichols v. Bennett, 199 Wis. 2d 268,
275 n.4, 544 N.W.2d 428 (1996), we affirmed the Foust exemption
from the open records law for documents that, by their nature, are
"integral to the criminal investigation and prosecution process."
Although
a
district
attorney
does
not
have
to
release
documents gathered in the course of a criminal investigation, if
he or she decides to do so, the subjects of those investigative
documents should have a right to notice of and to object to that
pending disclosure.
Nichols,
public
We articulated in Foust, and reaffirmed in
policy
reasons
that
support
nondisclosure
of
prosecutorial case files, such as encouraging public cooperation
in investigations by ensuring informant anonymity.
Additionally,
material gathered by prosecutors is sometimes highly personal and
private and can include medical, psychiatric and psychological
reports, as well as victims' statements.
The Foust exception to the open records law rests on the
implicit recognition that district attorneys are different from
other
public
officials
in
that
they
are
able
to
exercise
extraordinary police powers to obtain records which they did not
create and for which they are not the primary custodians.
Given
the broad discretion afforded to district attorneys in gathering
information during investigations and the common law exemption
prohibiting forced disclosure of such materials, it is just and
reasonable that persons whose privacy and reputational interests
16
No. 94-2795
will be impacted by a decision in favor of disclosure be given
notice and be allowed to appeal.
For the reasons stated above, we conclude that the open
records
law
does
not
provide
a
blanket
exemption
for
Woznicki's personnel records or his telephone records.
either
These
records are open to the public unless there is an overriding
public interest in keeping the records confidential.
We further
recognize the reputational and privacy interests that are inherent
in
Woznicki's
records,
and
hold
that
the
District
Attorney's
decision to release these records is subject to de novo review by
the circuit court.
Accordingly, we reverse the court of appeals
and remand the case to the circuit court to determine if the
District
Attorney,
in
deciding
that
the
records
were
to
be
released, conducted the appropriate balancing test in reaching
that decision, and, if so, to review de novo the decision of the
District Attorney.
By
the
Court.—The
decision
of
the
court
of
appeals
is
reversed, and the cause remanded to the circuit court for further
proceedings consistent with this opinion.
17
No. 94-2795
WILLIAM A. BABLITCH, J.
(Concurring).
I write to answer
the dissent.
Privacy and reputation are precious commodities.
This case
involves a private citizen whose privacy is about to be invaded
and his reputation about to be potentially damaged by a district
attorney's
unilateral
telephone records.
judge
to
release.
review
to
release
his
personnel
and
This citizen wants to be heard, and he wants a
the
district
attorney's
decision
before
the
The dissent would deny him the right to be heard and the
right of review.
the
decision
unilateral,
The dissent would allow the district attorney
unchecked
authority
to
release
these
records.
Privacy and reputation are far too valuable to leave this private
citizen unheard and unprotected.
Common criminals, under our
system of justice, are afforded more.
The majority's conclusion that such rights are available is
not only consistent with prior Wisconsin case law and statutory
enactments, it is consistent with fundamental notions of justice
and
fairness.
process
Although
considerations,
the
they
decision
are
is
well
not
grounded
heeded.
on
The
due
root
requirement of the Due Process Clause of the Fourteenth Amendment
is "`that an individual be given an opportunity for a hearing
1
No. 94-2795
before
he
[or
interest.'"
she]
is
deprived
of
any
significant
protected
Cleveland Board of Education v. Loudermill, 470 U.S.
532, 542 (1985) (footnote omitted).
The government must provide
notice and some kind of hearing before it can lawfully deprive
anyone of life, liberty, or property.
By requiring the government
to follow appropriate procedures, the Due Process Clause promotes
fairness in such decisions.
Daniels v. Williams, 474 U.S. 327,
331 (1986).
In his classic statement, Justice Brandeis characterized "the
right to be let alone . . ." as the most comprehensive of rights
and the right most valued by a civilized society.
See Olmstead v.
United
(Brandeis,
States,
dissenting).
277
U.S.
438,
478
(1928)
J.,
In Wisconsin v. Constantineau, 400 U.S. 433, 434
(1971), the U.S. Supreme Court held that a protectable liberty
interest is implicated "[w]here a person's good name, reputation,
honor, or integrity is at stake because of what the government is
doing to him . . . ."
Id. at 437.
The dissent expresses well and capably the legal conclusion
to which it believes the law inexorably draws it.
position for which a legal argument can be made.
major flaw.
life.
It is a
But it has one
It is a cold legal analysis which does not touch real
We are not talking here about government contracts, minutes
of some town board meeting, or the like.
2
We are talking about a
No. 94-2795
private citizen's concern that his reputation and privacy will be
damaged, perhaps irreparably, by the release of his personnel and
private telephone records.6
The words "public record" are sterile, faceless, bloodless
words, but at times conceal within them the lives of real people,
6
One commentator describes the problem as follows:
Problems arise as a result of the collection of personal
data, however, because individuals often have little
control over its dissemination. Over time, information
may easily become misinformation because individuals
cannot control, and thus cannot correct, the information
that is disseminated. Moreover, personal facts which do
not become distorted may be of such a highly sensitive
and personal nature that, although correct, they are
potentially harmful and embarrassing if disseminated
carelessly.
Individuals must be protected from such
unwarranted personal intrusions.
The government,
although a logical source of protection from violations
of
personal
privacy,
is
probably
the
greatest
information collector and does not always vigilantly
protect personal privacy. In order for the government
to act efficiently, it must have certain information
about its citizens.
The government, however, should
also protect each individual's privacy interests.
The
inherent conflict between the government as "collector"
and the government as "protector" casts doubt on the
efficacy of relying on state and federal legislatures to
protect individuals' interest in informational privacy.
Francis
S.
Chlapowski,
The
Constitutional
Protection
of
Informational Privacy, Note, 71 B.U. L. Rev. 133, 133-34 (1991)
(footnotes omitted).
3
No. 94-2795
and
contain
reputation.7
the
potential
Public
for
records
untold
in
the
damage
hands
to
of
privacy
the
and
district
attorney, a secondary rather than a primary custodian of those
records,
may
contain
uncorroborated
or
untrue
hearsay,
raw
personal data, or a myriad of accusations, vendettas, or gossip.
Much if not all of this data may serve only to titillate rather
than inform.
Once released, this data can be quoted with impunity.
A
titillated society quickly moves on to the next headline; the
revealed person carries the consequences forever.
Our society consistently expresses great concern for victims
of crime.
Is not a private citizen whose reputation is about to
be shredded, or whose privacy about to be ripped open to public
view, potentially as great a victim?
Are we to say that a
district attorney in the process of daily business will never make
a mistake in the release of "public records?"
done,
cannot
be
undone.
Shakespeare had it right:
And
the
damage
The damage, once
can
be
monumental.
"He who steals my purse steals trash; .
7
A 1990 Harris survey states that "seventy-nine percent of
Americans are `concerned about threats to their personal privacy.'
Nearly seventy-five percent believe `they have lost all control
over how personal information about them is circulated and used by
companies.'" Carol R. Williams, A Proposal for Protecting Privacy
During the Information Age, 11 Alaska L. Rev. 119, 119-20 (1994)
(footnotes omitted).
4
No. 94-2795
. . But he that filches from me my good name . . . makes me poor
indeed."
Surely the potential victim ought to have a right to be heard
and a right of review by a neutral and detached judge when there
is so much at stake.
The dissent speaks of delay.
A few days delay is a small
price to pay for such important interests.
Inappropriate delay,
or special circumstances requiring expeditious decisions, can be
dealt with quickly and summarily by the courts.
Privacy
and
reputation,
once
lost,
are
rarely
retrieved.
They deserve, at the very least, the protection afforded by the
right to be heard and the right to judicial review.
fairness demand no less.
5
Justice and
No. 94-2795 SSA
SHIRLEY S. ABRAHAMSON, J. (concurring in part, dissenting in
part).
Thomas J. Woznicki, an employee of the New Richmond School
District, was charged with having consensual sex with a minor.
The
District
Attorney
dismissed
the
criminal
case
because
he
concluded he could not meet the burden of proving guilt beyond a
reasonable doubt.
Relying on the open records law, the father of
the minor and the New Richmond School District sought release of
Woznicki's personnel records (which had apparently been compiled
by the District) and Woznicki's telephone records, both of which
had been subpoenaed by the District Attorney in his investigation.
The District Attorney's task was to assess whether the documents
in question should be disclosed under Wisconsin's open record law.
I agree with the majority opinion that neither personnel
records
nor
telephone
records
are
categorically
exempt
from
disclosure under Wisconsin's open records law, and I join that
portion of the majority opinion which so holds.
Just about three
months ago this court held that the records of a school district
involving
a
disciplinary
action
against
a
school
district
administrator were not exempt from the open records law and could
therefore be released if the custodian of the record determined
that disclosure was merited under the open records law.8
8
As the
Wisconsin Newspress, Inc. v. Sheboygan Falls Sch. Dist.,
199 Wis. 2d 769, 777, 546 N.W.2d 143 (1996).
1
No. 94-2795 SSA
majority correctly observes, access to these records is determined
by the record custodian through a case-by-case balancing of the
public's right to inspect public records under the open records
law and any potential harm to the public interest that might
result from disclosure.
State ex. rel. Youmans v. Owens, 28
Wis. 2d 672, 681-82, 137 N.W.2d 470 (1965).
I
dissent
from
the
remand
to
the
circuit
court
for
a
determination of whether the custodian erred in deciding to open
the personnel and telephone records at issue in this case.
Today
for the first time the court's decision requires a custodian to
notify all persons whose reputational and privacy interests might
be "implicated" by the release of a record.
Today for the first
time the court's ruling subjects a custodian's decision to release
such records to judicial review.
I conclude that for a number of
reasons neither of these newly adopted rules is justified or
warranted by Wisconsin's open records law.
First, the majority silently overturns precedent by granting
a
noncustodian
the
should be closed.
power
to
determine
whether
public
records
Our prior cases recognize that only a legal
custodian has the power to close records subject to judicial
review.
Second, the majority's
spirit
and
explicitly
purpose
that
of
decision contravenes the
the
"[e]xcept
as
open
records
otherwise
2
law,
provided
language,
which
by
states
law,
any
No. 94-2795 SSA
requester
has
§ 19.35(1)(a)
a
right
to
(1993-94).9
inspect
Nothing
any
in
record."
the
case
Wis.
law,
Stat.
the
open
records law or any other statute supports the majority's novel
requirements of notification and subsequent judicial review when a
custodian
decides
to
release
reputational interests.
records statute.
records
implicating
privacy
and
This court should not rewrite the open
If the open records law is to provide that a
court may assess privacy and reputational interests after the
custodian has decided to open the records, this significant change
in the open records statute should be left to the legislature.
Third,
the
majority's
broad
and
undefined
invocation
of
"privacy and reputational interests" intrinsic to documents such
as personnel records and telephone records could foreshadow a
dramatic erosion of the open records law.
ostensibly
limited
Majority
op.
at 2,
directed
to
district
attorney,
the
to
the
records
reasoning
custodians
the
held
of
custodian
Majority op. at 6, 12 and 14.
by
of
all
in
Although its holding is
a
the
district
majority
records
this
rather
case.
attorney,
opinion
is
than
to
a
See,
e.g.,
The majority opinion's reasoning
with regard to privacy and reputational interests would apply if,
9
All further statutory references are to the 1993-94 volume
of the Wisconsin Statutes.
The statutes provide numerous exceptions to the open records
law. See, e.g., Wis. Stat. § 146.84(1)(c) (health care records);
§ 71.78 (tax records).
3
No. 94-2795 SSA
for example, the records in this case were in the possession of
the
school
district
rather
than
the
district
attorney.
The
location of the records should not be the determinative factor in
applying the open records law.
As the court explained in Nichols
v. Bennett, 199 Wis. 2d 268, 274-75, 544 N.W.2d 428 (1996), "[i]t
is
the
nature of
the
documents and
not
their
location
determines their status [under the open records law].
which
To conclude
otherwise would elevate form over substance."
Fourth,
the
majority
does
not
address
the
administrative
difficulties that will accompany its prescribed procedure, and it
leaves the circuit courts, which are assigned the unenviable task
of implementing that procedure, neither instruction nor direction
regarding how they should do so.
If a custodian's decision to
open records is challenged, years may pass before a final judicial
decision is reached.
Woznicki filed his objection in the circuit
court on July 19, 1994.
It has taken almost two years for a final
decision to be reached on Woznicki's objection to the release of
the records at issue.10
10
This delay contravenes the reasoning of
Auchinleck v.
LaGrange, 547 N.W.2d 587, 592 (1996).
Auchinleck, the court
concluded that the 120-day governmental notice provisions set
forth in Wis. Stat. § 893.80(1) were not applicable to the open
records laws because "the language and the public policy of the
open records and open meetings law require timely access to the
affairs of government."
4
No. 94-2795 SSA
I agree with the majority that the protection of privacy and
reputational interests not only goes to the heart of a system of
government pledged to protect individuals, their freedoms, and
their rights, but also plays an integral role in the balancing
test
prescribed
by
the
majority's
decision
system
government,
of
open
today
one
records
neglects
this
law
itself.
another
state's
core
open
specifically designed to preserve and promote:
But
the
in
our
law
is
value
records
insuring that our
government is open and accountable to the people it serves.
As we
stated in Nichols, "[t]he open records law serves one of the basic
tenets of our democratic system by providing an opportunity for
public oversight of the workings of government."
Wis. 2d at 273 (citation omitted).
effectively
monitor
our
Nichols, 199
Should we lose the ability to
government,
those
rights
we
cherish--including the right to privacy which the majority opinion
intends to protect--would be imperilled. In its decision today,
the majority undermines the open records law and risks destroying
the very interests it intends to save.
I.
Prior case law recognizes that the determination of whether a
public record should be closed rests with the legal custodian of
the record rather than with the general public or any individual.
In State ex rel. Bilder v. Township of Delavan, 112 Wis. 2d 539,
334 N.W.2d 252 (1983), the subject of the record at issue made the
5
No. 94-2795 SSA
same argument advanced by the subject of the record at issue in
this
case:
that
because
the
open
records
law
reflects
a
legislative policy to protect reputational and privacy interests,
the custodian in charge of the records at issue could not release
them.
The
court
disagreed,
pointing
to
the
legislature's
stipulation that the right to close a record is vested in the
custodian rather than the subject of that record.
II.
Under Wisconsin's open records law, there is "a presumption
of
complete
public
access."
Wis.
Stat.
§ 19.31
(1993-94).
Closing records "generally is contrary to the public interest,"
and access to records may be denied "only in an exceptional case."
Id.
As the court has stated, in applying this standard "the
general presumption of our law is that public records shall be
open to the public unless there is a clear statutory exception,
unless there exists a limitation under the common law, or unless
there is an overriding public interest in keeping the public
record confidential."11
The
conclusion
majority
that
searches
in
vain
for
law
supporting
notwithstanding
this
presumption,
a
its
custodian
deciding to open records implicating an individual's privacy and
11
Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397,
342 N.W.2d 682 (1984) (emphasis added); see also Wisconsin
Newspress, 199 Wis. 2d at 777.
6
No. 94-2795 SSA
reputational interests must not only provide that individual with
notification but also subject that decision to judicial review.
The open records law itself does not support the majority's
holding.
It is true, as the majority observes, that Wis. Stat.
§ 19.35 points to exceptions to disclosure inscribed in the open
meetings
law,
Wis.
Stat.
§ 19.85,
as
indicative
of
those
situations under which an exception to disclosure under the open
records law might also be warranted.
But Wis. Stat. § 19.35
cautions that such exceptions "may be used as grounds for denying
public access to a record only if the authority or legal custodian
. . . 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."
No such demonstration has been made by
the district attorney, the custodian in this case.12
No case law requires a legal custodian to balance the public
interest against any private interest such as the one identified
12
In Wisconsin Newspress, 199 Wis. 2d at 780, this court
emphasized that while Wis. Stat. § 19.35 directs a record
custodian to consider the exceptions to complete public disclosure
in Wis. Stat. § 19.85 when making a determination regarding
whether disclosure is warranted, read together the sections "do
not result in a clear statutory exception."
Id.
The statutes
"simply require the custodian to pay proper heed to the expressed
policies in allowing or denying public access to a record." Id.
Hence the court made clear just a few months ago that whatever
intent to protect privacy one might glean from the relation
between Wis. Stat. § 19.35 and Wis. Stat. § 19.85 is insufficient
to defeat the open record law's presumption in favor of complete
public access.
7
No. 94-2795 SSA
by the majority today.
The court's previous open records cases
simply recognize that in balancing the public interest in opening
a record and the public interest in keeping a record closed, a
record custodian must incorporate an assessment of how opening a
record would affect an individual's reputation because this "is a
matter
of
public
interest."
Newspapers,
Inc.
v.
Breier,
89
Wis. 2d 417, 433, 279 N.W.2d 179 (1979).
Finding no support in either the open records law or this
court's
prior
attempts
to
the
majority
that
various
a
specific
legislative intent to protect privacy and reputation."
Majority
provisions
op. at 7.
decisions
bolster
of
the
interpreting
its
holding
Wisconsin
that
by
law,
claiming
statutes
"evince
The statutes it cites, however, actually underscore the
extent to which privacy and reputational interests must yield to
satisfy the presumption of public access inscribed in the open
records law.
Hence while it is true that Wis. Stat. § 895.50 creates a
privacy
right
in
Wisconsin
for
the
first
time,
Wis.
Stat.
§ 895.50(2)(c) expressly states that "[i]t is not an invasion of
privacy to communicate any information available to the public as
a
matter
of
public
record."
Contrary
to
what
the
majority
suggests, then, the legislature creating Wis. Stat. § 895.50 made
clear that a person's individual right to privacy ends when the
information is contained in a public records.
8
See Newspapers,
No. 94-2795 SSA
Inc. v. Breier, 89 Wis. 2d at 431 (noting that because of Wis.
Stat.
§ 895.50(2)(c),
it
does
not
"appear
that
any
right
of
privacy is afforded by state law" when public interests under the
open records law are involved).
The majority also seeks support from Wis. Stat. § 103.13,
which limits an employee's access to the employee's own personnel
records,
delineates
certain
categories of records which may be closed to the public.
Neither
statute,
and
Wis.
however,
Stat.
§ 230.13,
purports
to
which
require
nondisclosure
when
an
individual's privacy is threatened.
The Wisconsin Newspaper Association and the Wisconsin Freedom
of Information Council as amici note in their brief to the court
that Wis. Stat. § 103.13 confers upon employers a right to refuse
inspection
of
personnel
records
under
certain
circumstances.
Nothing in Wis. Stat. § 103.13 vests a right in employees to keep
their records closed.
Nor does Wis. Stat. § 103.13 prevent an
employer from disclosing information in an employee's personnel
file to either the employee or anyone else.
The majority opinion
ignores this distinction between what is permitted and what is
required.13
13
Similarly, the Bilder court acknowledged that although
custodians were empowered to close public records, they were not
required to do so. State ex rel. Bilder v. Township of Delavan,
112 Wis. 2d 539, 558, 334 N.W.2d 252 (1983).
9
No. 94-2795 SSA
Similarly, nothing in Wis. Stat. § 230.13 prevents disclosure
of the records enumerated there; the statute simply authorizes
nondisclosure.
As
the
court
of
appeals
stated
when
it
had
occasion to construe Wis. Stat. § 230.13, just because a custodian
may keep a record closed does not mean that a custodian must do
so.
Milwaukee Journal v. UW Bd. of Regents, 163 Wis. 2d 933, 942
n.5, 472 N.W.2d 607 (Ct. App. 1991).
Both "the intent of the
legislature" and "the rule of the courts," stated the court of
appeals,
"is
that
exceptions
to
public
disclosure
are
to
be
construed narrowly, and we see no indication in § 230.13(2) that
it was intended to be a mandatory, rather than a permissive,
exemption."
Id.
I do not dispute that the statutes cited by the majority
"evince a clear recognition of the importance the legislature puts
on
privacy
and
reputational
Majority op. at 8.
interests
of
Wisconsin
citizens."
Our case law recognizes that the protection of
these interests is one of the factors to be incorporated when a
custodian
balances
the
public's
interest
in
closing
a
record
against the public's interest in access to and inspection of
records.
This court has not, however, recognized a protected
right to privacy.14
Rather than recognizing or creating a common-
14
See, e.g., Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d
379, 396, 280 N.W.2d 129 (1979) (prior case law indicates a
refusal to recognize a right of action for violation of one's
right to privacy); Yoeckel v. Samonig, 272 Wis. 430, 433, 75
N.W.2d 925 (1956) (same); see also Michael J. Fitzgerald, Public
10
No. 94-2795 SSA
(..continued)
Access to Law Enforcement Records in Wisconsin, 68 Marq. L. Rev.
705, 725 (1985) (noting that state law does not afford an
individual a right to privacy in records).
In Paul v. Davis, 424 U.S. 693 (1976), the United States
Supreme Court declined the invitation to extend a constitutional
right to privacy to records of official action. The defendant had
claimed constitutional protection against the disclosure of his
arrest on a shoplifting charge.
Characterizing the alleged
privacy right at stake as "very different" from "matters relating
to marriage, procreation, contraception, family relationships, and
child rearing and education," the Court noted that none of its
substantive privacy decisions had upheld "anything like" the
defendant's claim "that the State may not publicize a record of an
official act such as an arrest." Paul v. Davis, 424 U.S. at 71213.
Quoting language in its previous decision of Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971), stating that "notice and
an opportunity to be heard are essential" when "a person's good
name, reputation, honor, or integrity is at stake because of what
the government is doing to him," the Davis Court rejected as
overly broad the opportunity to read this language "to mean that
if a government official defames a person, without more, the
procedural requirements of the Due Process Clause of the
Fourteenth Amendment are brought into play." Davis, 424 U.S. at
708.
Instead, the Court stated, the language "'because of what
the government is doing to him' [in Constantineau] referred to the
fact that the governmental action taken in that case deprived the
individual of a right previously held under state law--the right
to purchase or obtain liquor in common with the rest of the
citizenry." Id.
When no such state law and corresponding right exists, held the
Court,
reputational
interests
are
"neither
'liberty'
nor
'property' guaranteed against state deprivation without due
process of law." Id. at 712; see also Siegert v. Gilley, 500 U.S.
226, 234 (1991) (holding that plaintiff's due process rights had
not been violated when his government employer wrote an allegedly
defamatory letter to a prospective employer because, under Davis,
there is a "lack of any constitutional protection for the interest
in reputation"); Weber v. City of Cedarburg, 129 Wis. 2d 57, 73,
384 N.W.2d 333 (1986) (citation omitted) ("Reputation by itself is
neither liberty nor property within the meaning of the due process
clause of the fourteenth amendment.
Therefore, injury to
reputation alone is not protected by the Constitution."); State v.
Hazen, 198 Wis. 2d 554, 561, 543 N.W.2d 503 (Ct. App. 1995)("state
actions that injure a person's reputation alone do not constitute
11
No. 94-2795 SSA
law right of privacy, the court has consistently stated that "if
the right is to be created, it should be done by the legislature."
Hirsch v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 396, 280
N.W.2d 129 (1979); Yoeckel v. Samonig, 272 Wis. 430, 433, 75
N.W.2d 925 (1956).15
The open records law cases cited by the majority reflect this
limitation on the right to privacy in Wisconsin.
None of these
cases raises the issue of whether a custodian can be prevented
from disclosing particular records.
Instead, each case cited by
the majority involves a situation in which a custodian sought to
prevent
disclosure
of
particular
records,
notwithstanding
the
presumption in favor of complete public access inscribed in the
open records law.
Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d
463,
357
516
N.W.2d
(1994)
(underlying
action
initiated
by
petition for mandamus seeking disclosure of report);16 Breier, 89
(..continued)
a deprivation of life, liberty or property necessary to invoke the
protection of the due process clause").
15
The subsequent enactment of Wis. Stat. § 895.50 did create
such a right. As I have indicated above, however, the legislature
carefully and explicitly insured that this limited statutory right
would neither impede nor trump the presumption of complete public
access inscribed in the open records law.
16
The specific issue presented in Armada concerned whether a
party could intervene on the side of a custodian seeking to
prevent disclosure.
As the court stated, "[t]he sole issue on
review
is
whether
[the
petitioner]
has
a
right
to
intervene . . . under sec. 803.09(1)," the intervention statute.
Armada, 183 Wis. 2d at 470.
"The issue before us," the court
proceeded to state, "does not involve a determination under the
Open Records law." Id. at 473. Hence the majority's reliance on
12
No. 94-2795 SSA
Wis. 2d 417 (action arose out of request by the managing editor of
The Milwaukee Journal for access to police records); Youmans, 28
Wis. 2d 672 (mandamus action brought by publisher of Waukesha
Freeman sought papers held by the Waukesha mayor relating to
alleged
police
misconduct);
Village
of
Butler
v.
Cohen,
163
Wis. 2d 819, 472 N.W.2d 579 (Ct. App. 1991) (action arose when
requestors asked for personnel files of police officers).
Such cases can be initiated in the first place because the
open records law specifically authorizes a requester to bring an
action for mandamus compelling a custodian to release a record.
Wis.
Stat.
§ 19.37.
There
is
no
comparable
statute--and
no
comparable case law--authorizing an action by a person seeking to
prevent rather than compel disclosure.
Indeed, the cases relied
upon by the majority emphasize that "public policy favors the
right of inspection of public records and documents, and, it is
only in the exceptional case that inspection should be denied."
Youmans, 28 Wis. 2d at 683; see also Breier, 89 Wis. 2d at 426;
Butler, 163 Wis. 2d at 825.
Implication alone serves as the foundation for the majority's
holding, notwithstanding the admonition of the court in Hathaway
v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682
(1984):
"It
would
be
contrary
(..continued)
Armada is especially misplaced.
13
to
general
well
established
No. 94-2795 SSA
principles of freedom-of-information statutes to hold that, by
implication only, any type of record can be held from public
inspection."
statutes,
requesters
Without support from either prior case law or the
the
and
majority
for
crafts
custodians
novel
who
procedural
decide
to
hurdles
release
for
records
implicating privacy and reputational interests.
III.
In an attempt to salvage its holding, the majority in the
final paragraphs of the opinion turns its attention to the fact
that the custodian of the records at issue in this case is a
district attorney.
district
Because of "the broad discretion afforded to
attorneys
in
gathering
information
during
investigations," Majority op. at 16, the majority reasons that
records in a district attorney's possession represent especially
suitable candidates for the new rules it announces today.
Once
again, however, the majority fails to support its argument.
First, the majority seeks support from our prior decisions in
State ex rel. Richards v. Foust, 165 Wis. 2d 429, 477 N.W.2d 608
(1991) and Nichols.
Both cases, however, involved challenges to a
district attorney's power to close records, notwithstanding the
open records law.
While the court upheld a district attorney's
power to keep records closed, it said nothing to suggest that a
district attorney therefore must keep records closed.
As is the
case with its interpretation of Wis. Stat. § 230.13, the majority
14
No. 94-2795 SSA
here confuses a discretionary power which allows a particular
entity
to
withhold
certain
records
with
a
nondiscretionary
requirement that those records must be withheld from public view.
Cf. Milwaukee Journal v. UW Bd. of Regents, 163 Wis. 2d at 942
n.5.
It therefore extends Foust in ways the Foust decision itself
neither contemplated nor discussed.
Despite
neither
the
rests
majority's
upon
nor
intimation
concerns
to
itself
the
contrary,
with
the
reputational concerns of the subject of a record.
Foust
court
attorney
explained,
to
refuse
the
to
rationale
disclose
Foust
privacy
or
Instead, as the
for
allowing
records
is
a
the
district
"orderly
administration of justice" and the "continuing cooperation of the
populace in criminal investigations."
Second,
prosecutors
the
is
majority
sometimes
asserts
highly
Foust, 165 Wis. 2d at 435.17
that
personal
"material
and
gathered
private
and
by
can
include medical, psychiatric and psychological reports, as well as
victims' statements."
Majority op. at 16.
17
This is both true and
The Foust court made clear that insuring the anonymity of
informants' statement is important because it helps preserve the
public's willingness to cooperate in criminal investigations.
Foust, 165 Wis. 2d at 435.
Preserving the anonymity of
informants' statements, then, represents a paradigmatic example of
the third condition under which the general presumption in favor
of complete public disclosure might be defeated: when "there is
an overriding public interest in keeping the public record
confidential."
Hathaway, 116 Wis. 2d at 397.
The majority has
failed to articulate a comparable rationale that might require
nondisclosure of the records at issue in this case.
15
No. 94-2795 SSA
irrelevant.
If such records are privileged because, for example,
they involve patient-physician communications, their disclosure is
already limited by statute18--regardless of whether they are held
by
a
district
attorney.
If,
conversely,
they
are
not
privileged--as is the case with the personnel records at issue in
this case--then the majority opinion hinges disclosure upon who
the custodian is rather on the nature of the records themselves.
The records at issue in this case are records subpoenaed from
the school district.
They implicate the exact same reputational
and privacy interests whether they are held by the school district
or the district attorney.
is
the
nature of
the
As the court stated in Nichols, "[i]t
documents and
not
their
location
determines their status [under the open records law].
otherwise
would
elevate
form
over
substance."
which
To conclude
Nichols,
199
Wis. 2d at 274-75.
IV.
Finally, the majority does not even hint at the difficulties
that
will
be
involved
in
implementing
its
holding.
Today's
opinion requires a district attorney to notify all individuals
whose privacy and reputational interests might be implicated by a
particular disclosure and then to allow "a reasonable amount of
time for the individual[s] to appeal the decision."
18
Majority op.
See ch. 905 (Evidence-Privileges). The physician patient
privilege is incorporated within ch. 905 as Wis. Stat. § 905.04.
16
No. 94-2795 SSA
at 15.
The majority makes no effort to define the individuals
whose privacy and reputational interests are "implicated" by a
record.
For
example,
in
the
case
of
records
pertaining
to
lobbying activities, numerous individuals who are not subjects of
an
investigation
nevertheless
may
"implicated" by such an investigation.
no
assistance
to
record
custodians,
have
privacy
interests
The majority also provides
record
subjects,
record
requestors or the circuit courts regarding what constitutes a
"reasonable" time in which the subject of a record might appeal a
record custodian's decision to open a record.
In sum, the majority's opinion draws no support from the open
records law or any other statute.
case law.
It draws no support from the
It places record custodians in the impossible position
of being sued when they deny access to records and also being sued
when they decide to grant access to the same records.
Most
important, it threatens the integrity of the open records law
which already accounts for privacy and reputational interests in
the long-standing balancing test used under the law.
For the reasons set forth, I dissent.
I am authorized to state that Justice Ann Walsh Bradley joins
this opinion.
17
No. 94-2795 SSA
SUPREME COURT OF WISCONSIN
Case No.:
Complete Title
of Case: Thomas
94-2795
J. Woznicki,
Plaintiff-Appellant,
v.
Dennis W. Erickson, Assistant
District Attorney,
Defendant-Respondent-Petitioner.
____________________________________
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 192 Wis. 2d 710, 531 N.W.2d 465
(Ct. App. 1995)
PUBLISHED
Opinion Filed:
June 25, 1996
Submitted on Briefs:
Oral Argument: January 10, 1996
Source of APPEAL
COURT:
Circuit
COUNTY:
St. Croix
JUDGE: CONRAD A. RICHARDS
JUSTICES:
Concurred:
Dissented:
BABLITCH, J., concurs (opinion filed)
ABRAHAMSON, J., concur/dissent (opinion filed)
BRADLEY, J., joins in concur/dissent opinion
Not Participating:
For the defendant-respondent-petitioner the cause
was argued by Alan Lee, assistant attorney general, with whom on
the brief was James E. Doyle, attorney general.
ATTORNEYS:
For the plaintiff-appellant there was a brief by Melissa A.
Cherney, Chris Galinat and Wisconsin Education Association
Council, Madison and oral argument by Melissa A. Cherney.
No. 94-2795 SSA
Amicus curiae brief was filed by Jeffrey J. Kassel and
LaFollette & Sinykin, Madison for the Wisconsin Newspaper
Association and Wisconsin Freedom of Information Council.

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