This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
STATE OF WISCONSIN
IN SUPREME COURT
Thomas J. Woznicki,
JUNE 25, 1996
Dennis W. Erickson, Assistant District
Marilyn L. Graves
Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals.
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
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.
We conclude that the open
employee personnel records or Woznicki's telephone records.
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
release these records is subject to de novo review by the circuit
Accordingly, we reverse the court of appeals.
charged with having consensual sex with a minor over the age of
criminal investigation ensued, during which the St. Croix County
District, and Woznicki's personal telephone records.
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
All future statutory references are to the 1993-94 volume
unless otherwise indicated.
The District Attorney notified Woznicki that there had been
Woznicki's employer and the other request was from the father of
The District Attorney informed Woznicki that he
intended to release the records to the two requesters.
releasing his personnel and telephone records.
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.
appealed the circuit court's decision denying his motion for a
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
therefore reversed the circuit court's order and remanded the
Woznicki's personnel and telephone records.
The District Attorney
now seeks review.
The case presents the following issues.
Second, whether Woznicki's telephone records are
exempt from disclosure under the open records law.
either or both are not exempt, whether the District Attorney's
decision to release them is subject to judicial review.
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,
, 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
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."
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
recognizing the public interest in allowing inspection.
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
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."
is no question that the District Attorney constitutes a proper
authority under the clear meaning of the statute.
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.
records are not exempt from the open records law, we address the
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
authority refuses to release a record, the requester may seek a
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
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.
The statutes and case law have
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.
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).
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
release Woznicki's records is subject to de novo review by the
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
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
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
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
. . .
(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
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).
103.13 is a strong legislative pronouncement that privacy and
reputational interests are deserving of protection.
We also note
administrator to keep personnel records closed to the public when
they involve disciplinary actions of employees.
Wis. Stat. § 103.13(6) states, in relevant part:
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:
. . .
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
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
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
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.
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
Id. at 433.
Justice Coffey, in his dissent in Breier, made an
[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
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
presumption that the records should be open to the public.
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
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
policy interest in limiting access to personnel files of public
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
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.
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.
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
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
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
the very least, whether he considered arguments put forth by
In an exchange with the circuit court, the District
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
. . .
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
recognizing the public interest in allowing inspection.
Breier, 89 Wis. 2d at 427.
The duty of the District Attorney is to balance all relevant
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
inspection would result in harm to the public interest which
outweighs the public interest in allowing inspection.
harm to the public interest from inspection outweighs the public
interest in inspection is a question of law.
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
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
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
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
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
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.
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
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."
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).
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."
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
We articulated in Foust, and reaffirmed in
prosecutorial case files, such as encouraging public cooperation
in investigations by ensuring informant anonymity.
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
extraordinary police powers to obtain records which they did not
create and for which they are not the primary custodians.
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
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
Woznicki's personnel records or his telephone records.
records are open to the public unless there is an overriding
public interest in keeping the records confidential.
recognize the reputational and privacy interests that are inherent
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
released, conducted the appropriate balancing test in reaching
that decision, and, if so, to review de novo the decision of the
reversed, and the cause remanded to the circuit court for further
proceedings consistent with this opinion.
WILLIAM A. BABLITCH, J.
I write to answer
Privacy and reputation are precious commodities.
involves a private citizen whose privacy is about to be invaded
and his reputation about to be potentially damaged by a district
This citizen wants to be heard, and he wants a
The dissent would deny him the right to be heard and the
right of review.
The dissent would allow the district attorney
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
requirement of the Due Process Clause of the Fourteenth Amendment
is "`that an individual be given an opportunity for a hearing
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,
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.
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.
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.
We are talking about a
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,
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
Individuals must be protected from such
unwarranted personal intrusions.
although a logical source of protection from violations
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.
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.
Informational Privacy, Note, 71 B.U. L. Rev. 133, 133-34 (1991)
attorney, a secondary rather than a primary custodian of those
personal data, or a myriad of accusations, vendettas, or gossip.
Much if not all of this data may serve only to titillate rather
Once released, this data can be quoted with impunity.
titillated society quickly moves on to the next headline; the
revealed person carries the consequences forever.
Our society consistently expresses great concern for victims
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?"
Shakespeare had it right:
The damage, once
"He who steals my purse steals trash; .
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)
. . But he that filches from me my good name . . . makes me poor
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.
or special circumstances requiring expeditious decisions, can be
dealt with quickly and summarily by the courts.
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.
No. 94-2795 SSA
SHIRLEY S. ABRAHAMSON, J. (concurring in part, dissenting in
Thomas J. Woznicki, an employee of the New Richmond School
District, was charged with having consensual sex with a minor.
concluded he could not meet the burden of proving guilt beyond a
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
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
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
Wisconsin Newspress, Inc. v. Sheboygan Falls Sch. Dist.,
199 Wis. 2d 769, 777, 546 N.W.2d 143 (1996).
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).
determination of whether the custodian erred in deciding to open
the personnel and telephone records at issue in this case.
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
should be closed.
Our prior cases recognize that only a legal
custodian has the power to close records subject to judicial
Second, the majority's
decision contravenes the
No. 94-2795 SSA
records law or any other statute supports the majority's novel
requirements of notification and subsequent judicial review when a
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.
"privacy and reputational interests" intrinsic to documents such
as personnel records and telephone records could foreshadow a
dramatic erosion of the open records law.
Majority op. at 6, 12 and 14.
Although its holding is
The majority opinion's reasoning
with regard to privacy and reputational interests would apply if,
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).
No. 94-2795 SSA
for example, the records in this case were in the possession of
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
determines their status [under the open records law].
otherwise would elevate form over substance."
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
This delay contravenes the reasoning of
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."
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
specifically designed to preserve and promote:
insuring that our
government is open and accountable to the people it serves.
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).
Should we lose the ability to
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.
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
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same argument advanced by the subject of the record at issue in
legislative policy to protect reputational and privacy interests,
the custodian in charge of the records at issue could not release
stipulation that the right to close a record is vested in the
custodian rather than the subject of that record.
Under Wisconsin's open records law, there is "a presumption
Closing records "generally is contrary to the public interest,"
and access to records may be denied "only in an exceptional case."
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
deciding to open records implicating an individual's privacy and
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.
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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
It is true, as the majority observes, that Wis. Stat.
§ 19.35 points to exceptions to disclosure inscribed in the open
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
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."
"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
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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
Wis. 2d 417, 433, 279 N.W.2d 179 (1979).
Finding no support in either the open records law or this
legislative intent to protect privacy and reputation."
op. at 7.
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
Hence while it is true that Wis. Stat. § 895.50 creates a
§ 895.50(2)(c) expressly states that "[i]t is not an invasion of
privacy to communicate any information available to the public as
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.
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Inc. v. Breier, 89 Wis. 2d at 431 (noting that because of Wis.
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
categories of records which may be closed to the public.
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
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
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).
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Similarly, nothing in Wis. Stat. § 230.13 prevents disclosure
of the records enumerated there; the statute simply authorizes
occasion to construe Wis. Stat. § 230.13, just because a custodian
may keep a record closed does not mean that a custodian must do
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
construed narrowly, and we see no indication in § 230.13(2) that
it was intended to be a mandatory, rather than a permissive,
I do not dispute that the statutes cited by the majority
"evince a clear recognition of the importance the legislature puts
Majority op. at 8.
Our case law recognizes that the protection of
these interests is one of the factors to be incorporated when a
against the public's interest in access to and inspection of
This court has not, however, recognized a protected
right to privacy.14
Rather than recognizing or creating a common-
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
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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
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
When no such state law and corresponding right exists, held the
'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
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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
presumption in favor of complete public access inscribed in the
open records law.
Armada Broadcasting, Inc. v. Stirn, 183 Wis. 2d
petition for mandamus seeking disclosure of report);16 Breier, 89
a deprivation of life, liberty or property necessary to invoke the
protection of the due process clause").
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.
The specific issue presented in Armada concerned whether a
party could intervene on the side of a custodian seeking to
As the court stated, "[t]he sole issue on
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
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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
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.
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
Armada is especially misplaced.
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principles of freedom-of-information statutes to hold that, by
implication only, any type of record can be held from public
Without support from either prior case law or the
implicating privacy and reputational interests.
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
Because of "the broad discretion afforded to
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.
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
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here confuses a discretionary power which allows a particular
requirement that those records must be withheld from public view.
Cf. Milwaukee Journal v. UW Bd. of Regents, 163 Wis. 2d at 942
It therefore extends Foust in ways the Foust decision itself
neither contemplated nor discussed.
reputational concerns of the subject of a record.
Instead, as the
administration of justice" and the "continuing cooperation of the
populace in criminal investigations."
Foust, 165 Wis. 2d at 435.17
include medical, psychiatric and psychological reports, as well as
Majority op. at 16.
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
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.
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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
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.
As the court stated in Nichols, "[i]t
determines their status [under the open records law].
Wis. 2d at 274-75.
Finally, the majority does not even hint at the difficulties
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."
See ch. 905 (Evidence-Privileges). The physician patient
privilege is incorporated within ch. 905 as Wis. Stat. § 905.04.
No. 94-2795 SSA
The majority makes no effort to define the individuals
whose privacy and reputational interests are "implicated" by a
lobbying activities, numerous individuals who are not subjects of
"implicated" by such an investigation.
The majority also provides
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.
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.
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
No. 94-2795 SSA
SUPREME COURT OF WISCONSIN
of Case: Thomas
Dennis W. Erickson, Assistant
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 192 Wis. 2d 710, 531 N.W.2d 465
(Ct. App. 1995)
June 25, 1996
Submitted on Briefs:
Oral Argument: January 10, 1996
Source of APPEAL
JUDGE: CONRAD A. RICHARDS
BABLITCH, J., concurs (opinion filed)
ABRAHAMSON, J., concur/dissent (opinion filed)
BRADLEY, J., joins in concur/dissent opinion
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.
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.