Hempel v. City of Baraboo

• Decision Date: 13 July 2005
• Docket Number: No. 2003AP500.,2003AP500.
• Citation: 699 N.W.2d 551,2005 WI 120,284 Wis. 2d 162
• Parties: Hal HEMPEL, Plaintiff-Appellant-Petitioner, v. CITY OF BARABOO and City of Baraboo Police Department, Defendants-Respondents.
• Court: Wisconsin Supreme Court

284 Wis.2d 162

2005 WI 120

699 N.W.2d 551

Hal HEMPEL, Plaintiff-Appellant-Petitioner, v. CITY OF BARABOO and City of Baraboo Police Department, Defendants-Respondents.

No. 2003AP500.

Supreme Court of Wisconsin.

Oral argument September 21, 2004.

Decided July 13, 2005.

For the plaintiff-appellant-petitioner there were briefs by Aaron N. Halstead, Katy Meter Lounsbury and Shneidman, Hawks & Ehlke, S.C., Madison, and oral argument by Aaron N. Halstead.

For the defendants-respondents there was a brief by James C. Bohl, Baraboo, and oral argument by James C. Bohl.

¶ 1. DAVID T. PROSSER, J.

In this review of a published decision of the court of appeals,¹ we are required to interpret and apply Wisconsin's Open Records Law, Wis. Stat. §§ 19.31-19.39,² vis-à-vis documents generated during an internal investigation of alleged sexual harassment by a male Baraboo police officer against a female Baraboo police officer, as well as other female officers. Petitioner Hal Hempel (Hempel), the subject of the harassment complaint, seeks review of the appellate decision affirming a circuit court order granting summary judgment to the City of Baraboo (the City) and the City of Baraboo Police Department (the Department) on Hempel's challenge to the denial of his open records request. We must determine whether the Sauk County Circuit Court, Patrick J. Taggart, Judge, erroneously granted summary judgment.

¶ 2. The issues presented are: First, does Wis. Stat. § 19.35(1)(am) give a police officer the personal right to inspect records compiled by a police department in its internal investigation of a sexual harassment complaint against the officer? Second, does Wis. Stat. § 19.35(1)(a) give the public, including the police officer, a right to inspect a police department's records of an internal sexual harassment investigation as well as unredacted copies of related documents when the department does not bring disciplinary charges against the officer, the department articulates several specific concerns about the confidentiality and privacy of cooperating witnesses and its ability to conduct future internal investigations, and the department releases redacted records that preserve witness confidentiality but expose the nature of the harassment complaint?

¶ 3. We conclude, first, that when a person makes an open records request for records containing personally identifiable information under Wis. Stat. § 19.35(1)(am), the person is entitled to inspect the records unless the surrounding factual circumstances reasonably fall within one or more of the statutory exceptions to paragraph (am). ¶ 4. Second, if the person makes a more general open records request under § 19.35(1)(a), the records custodian, keeping in mind the strong legislative presumption favoring disclosure, must determine whether the requested records are subject to an exception that may or will prevent disclosure. Two general types of exceptions may apply: statutory exceptions and common law exceptions. Linzmeyer v. Forcey, 2002 WI 84, ¶ 10, 254 Wis. 2d 306, 646 N.W.2d 811. If neither a statute nor common law creates a blanket exception, the custodian must decide whether the strong presumption favoring access and disclosure is overcome by some even stronger public policy favoring limited access or nondisclosure. Id., ¶ 11 (citing Woznicki v. Erickson, 202 Wis. 2d 178, 192-93, 549 N.W.2d 699 (1996)). To determine whether the presumption of openness is overcome by another public policy concern, we apply the balancing test articulated by the court in Woznicki and Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979).

¶ 5. Applying these principles to this case, we conclude, first, that Hempel was the subject of an investigation "in connection with a complaint," an express statutory exception to paragraph (am). As such, Hempel's request falls directly within one of the statutory exceptions to disclosure. Disclosure would also expose the names with statements of informants who were promised confidentiality for their cooperation in the internal investigation. He therefore had no right to more information under paragraph (am) than he received. Second, in this case, the public interest in nondisclosure of police investigative records outweighs the public interest in releasing the records under Wis. Stat. § 19.35(1)(a). As a result, the Department had the authority to deny Hempel's open records request. Accordingly, we affirm the decision of the court of appeals.

I. FACTS AND PROCEDURAL POSTURE

¶ 6. This is a fact-intensive case, but the relevant facts are undisputed. Hal Hempel has been a police officer with the Baraboo Police Department for at least 25 years. On January 20, 2000, Captain Dennis Kluge (Kluge) of the Department received a verbal complaint about Hempel from Officer Kaye Howver (Howver). Howver later filed an eight-page written complaint alleging gender-based harassment. In the meantime, Kluge informed Baraboo Police Chief Thomas J. Lobe of the complaint, and Lobe, in turn, informed Hempel that a complaint had been made. The Chief assigned Kluge the responsibility of conducting an investigation.

¶ 7. On February 10, 2000, Captain Kluge delivered a memorandum to Hempel. The memorandum reiterated that a complaint had been filed alleging that Hempel had made "gender-based" statements "degrading to female officers;" advised him that a related investigation was being conducted by the Sauk County Sheriff's Department; and asked to meet with Hempel to obtain his response to the allegations. Kluge attached Howver's full, unredacted complaint to the memorandum. The complaint listed numerous people who allegedly witnessed or had knowledge of Hempel's conduct. On February 18 Hempel met with Kluge and provided a recorded response to Kluge's questions.

¶ 8. The Department's investigation apparently continued until June 2000. On June 13 Baraboo City Attorney James C. Bohl wrote Hempel's attorney informing him that the Chief had decided not to impose any disciplinary measures on Hempel.³ Three days later, on June 16, Hempel's attorney, Aaron Halstead, responded, expressing concern that Chief Lobe had not contacted all the potential witnesses named by Hempel and intimating that the failure to get "[Hempel's] side of the story" might affect Chief Lobe's perception of Hempel's future performance.

¶ 9. On August 11 Chief Lobe sent a formal memorandum to Hempel describing the Department's resolution of the complaint. Chief Lobe wrote:

[The] complaint ... has been resolved to the mutual satisfaction of the parties and the department.... No further action will be taken on this complaint. If another complaint of a similar nature is received, this complaint may be considered at that time. This memo is intended to be documentary only and is not disciplinary. This memo will be retained in Officer Hempel's personnel file for a period of three years from June 8, 2000.

The record does not reveal whether the Department found merit in the complaint, or whether Hempel agreed to take any action in response to the complaint. In any event, Hempel's attorney objected to the retention of the memorandum in Hempel's personnel file. The Baraboo City Attorney ultimately consented to place Attorney Halstead's June 16 letter listing Hempel's concerns in the personnel file with Chief Lobe's final memorandum. In effect, the parties agreed that Hempel's concerns would not be addressed at that time, but were not waived.

¶ 10. On January 24, 2001, Hempel served a written open records request on the Department seeking "any and all written materials gathered or considered by you in connection with [the] complaint against Hal Hempel, including any correspondence or statements received by you in connection with that complaint." The request cited both "Chapter 19 of the Wisconsin Statutes and Sec. 103.13 of the Wisconsin Statutes." ¶ 11. On January 31, 2001, Chief Lobe responded to that portion of Hempel's request under Wis. Stat. § 103.13, forwarding all documents in Hempel's personnel file related to the complaint. Lobe added:

Since there was no discipline or other qualifying determination made by this Department under Section 103.13(2) of the Wisconsin Statutes, Officer Hempel is not entitled to inspect any additional records under Section 103.13, Wis. Stats. and to the extent that your request is made under Section 103.13(2) to inspect additional documents, it is denied as no such additional documents exist in Officer Hempel's personnel file.

Chief Lobe's letter indicated that he would issue a second response to the public records request under Chapter 19.

¶ 12. Chief Lobe retired on January 31, so that his letter to Hempel was one of his last official acts. He was succeeded on February 1 by Kluge, who addressed the Chapter 19 public records request in a February 9 letter to Hempel. Chief Kluge wrote that he had been advised by the City Attorney "that Attorney Halstead's record request must be treated the same as if such a request had been made by the news media." He added:

After reviewing the documents requested and balancing the competing interests implicated in releasing the requested documents, as Record Custodian, I have determined that certain records, in redacted form, are subject to release under the public records law. I have attached to this letter, copies of documents I am proposing to release for public inspection. In addition to the attached documents, I have provided a similar letter to Officer [] with a redacted copy of [] complaint. If Officer [] does not file a court action objecting to the release of [] redacted complaint, I will then provide a copy of that document to you in order to give you additional time to challenge, in Circuit Court, the public release of that document. It is believed that the attached documents, as well as the redacted complaint filed by Officer [] may implicate your privacy interest and/or reputational concerns.

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