Kailin v. Rainwater

• Decision Date: 31 March 1999
• Docket Number: No. 98-0870,98-0870
• Citation: 593 N.W.2d 865,226 Wis. 2d 134
• Parties: , 27 Media L. Rep. 1846 Stephen M. KAILIN, and Linda Kailin, Plaintiffs-Appellants, v. Arthur RAINWATER, and Madison Metropolitan School District, Defendants-Respondents, Wisconsin State Journal, Necessary-Party-Respondent.
• Court: Wisconsin Court of Appeals

Page 865

593 N.W.2d 865

226 Wis.2d 134, 27 Media L. Rep. 1846

Stephen M. KAILIN, and Linda Kailin, Plaintiffs-Appellants, v. Arthur RAINWATER, and Madison Metropolitan School District Defendants-Respondents Wisconsin State Journal, Necessary-Party-Respondent.

No. 98-0870.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 1, 1999.

Opinion Released March 31, 1999.

Opinion Filed March 31, 1999.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Jon P. Axelrod, of DeWitt Ross & Stevens, S.C. of Madison.

On behalf of the defendants-respondents, the cause was submitted on the brief of Michael J. Lawton of Lathrop & Clark of Madison. On behalf of the necessary party-respondent, the cause was submitted on the brief of Jeffrey J. Kassel and Robert J. Dreps of La Follette & Sinykin of Madison.

Before BROWN, NETTESHEIM and ANDERSON, JJ.

NETTESHEIM, J.

This is an open records case. The Wisconsin State Journal (WSJ) asked the Madison Metropolitan School District for disclosure of personnel documents, including an investigative report, relating to Stephen M. Kailin pursuant to the Wisconsin Public Records Law, § 19.31-.37, STATS. Kailin, an elementary school principal, was the subject of an investigation conducted by the District. Following the District's decision to release the records, Kailin appealed to the circuit court pursuant to Woznicki v. Erickson, 202 Wis.2d 178, 549 N.W.2d 699 (1996). The circuit court upheld the custodian's decision to release the records and additionally concluded after a trial de novo that the records should be released. Kailin further appeals to us. ¹

Kailin contends that his privacy and reputational interests outweigh the public interest in disclosure of the records. He also contends that the circuit court erred in considering additional evidence beyond that which was before the custodian. We reject Kailin's arguments. We affirm the circuit court's order authorizing release of the records.

BACKGROUND

Kailin was a teacher and education administrator for twenty-eight years. He served as the principal of Franklin Elementary School in Madison from 1993 to 1996. On September 16, 1996, Kailin was verbally advised by the District that allegations had been made against him regarding inappropriate contact with certain students. Kailin was directed not to return to the school until further notice.

The District retained Attorney James Ruhly to investigate the allegations. By October 7, 1996, the District had completed its investigation into the allegations. On October 15, it was agreed that Kailin would be reinstated effective November 11, 1996. On October 30, 1996, a WSJ reporter interviewed District Superintendent Cheryl Wilhoyte, Ruhly, Kailin and Kailin's attorney, Bruce J. Rosen, about the matter. On that same day, another Madison newspaper, the Capital Times, ran an article containing a general description of the allegations. ²

Approximately one week before Kailin was to be reinstated, Rosen received a call from Ruhly requesting a meeting with Kailin and the District. At this meeting, held on November 5, 1996, the District informed Kailin that additional and more serious allegations had been raised which dated back many years. The District denied Rosen's request for information as to the identity of the complainants and for specific factual information about the allegations. The District requested that Kailin respond to the allegations that evening. After meeting with Ruhly, Kailin submitted his written resignation to the District. At that time, his compensation was terminated. He later surrendered his licenses to the Wisconsin Department of Public Instruction.

Ruhly's investigation of the new allegations continued despite Kailin's resignation. Ruhly spoke to the alleged victims and prepared affidavits documenting each victim's account of the alleged incidents. On November 18, 1996, Ruhly submitted a confidential report to the Board of Education. The Board held a closed meeting that day pursuant to § 19.85(1)(a), (c), (f), (g), STATS., to discuss the confidential report.

Also on November 18, the District received a letter from WSJ "requesting access to all records accumulated during the course of the initial inquiry (into allegations at Franklin School) and the subsequent investigation regarding complaints of past conduct." The District then hired an additional independent counsel to aid the custodian in reviewing the relevant law and other factors bearing on the decision whether to release the records. In a letter dated November 27, 1996, the custodian of records informed Rosen of the WSJ's request and its decision to disclose Kailin's personnel records.

The custodian wrote: "I am hereby notifying you of my opinion that production of this redacted material is required by law and that Dr. Kailin does have a right to object and/or preclude such production through the judicial process. If Dr. Kailin objects to my decision I am interested in hearing the basis for his objection. After reviewing the basis for your objection I could determine that production is not required." In support of his decision, the custodian cited to the supreme court's decision in Woznicki.

On December 5, 1996, Rosen sent a letter to the District again requesting that Kailin be informed of the identities of his accusers. The District informed Rosen that it would not release the identities because Kailin had resigned and would not be proceeding to a hearing. On December 13, 1996, Kailin submitted a written objection to the release of the personnel records setting forth arguments in support of nondisclosure. However, on December 20, 1996, the custodian notified Kailin of his decision to disclose the records. He stated: "I have determined that under the Wisconsin public records law, as interpreted to date by the Wisconsin Supreme Court and the Court of Appeals of Wisconsin, as the official custodian of [the district's] records, it is my obligation to deliver to [the WSJ] the records which accompany this letter, as redacted where indicated."

Pursuant to Woznicki, Kailin appealed the District's decision to the circuit court on January 9, 1997. In a written decision dated February 10, 1998, the circuit court upheld the District's decision. Relying on additional evidence in the form of newspaper articles which the custodian had not considered, the court further held on an independent de novo basis that the records should be released. The court determined "that the public interest in protecting plaintiff Stephen Kailin's privacy and reputational interests does not outweigh the strong public interest favoring disclosure of the course and quality of the investigation, the basis for actions by the School Board including the quality and pattern of the allegations of misconduct by plaintiff. Therefore, plaintiff's request that the court restrain [the custodian] from releasing such records is denied." ³ Kailin appeals.

DISCUSSION

1. The Open Records Law Generally

Section 19.31, STATS., sets forth the policy underlying the open records law. It provides that "all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employes who represent them." Id. Therefore, the open records law "shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business." Id. Personnel records are not exempt from disclosure under the public records law. See Woznicki, 202 Wis.2d at 183, 549 N.W.2d at 701. Because the denial of public access is generally contrary to public interest, access may be denied only in exceptional cases. See § 19.31; see also Nichols v. Bennett, 199 Wis.2d 268, 277, 544 N.W.2d 428, 432 (1996) (Abrahamson, J., concurring).

However, in construing the public records law, our supreme court has observed that "[t]he statutes and case law have consistently recognized the legitimacy of the interests of citizens to privacy and the protection of their reputations." Woznicki, 202 Wis.2d at 185, 549 N.W.2d at 702; see also Newspapers, Inc. v. Breier, 89 Wis.2d 417, 430, 279 N.W.2d 179, 185 (1979) ( "[T]here is a public-policy interest in protecting the reputations of citizens."). Therefore, prior to the release of records, the custodian has a duty to consider all the relevant factors in balancing the public interest and the private interests. See Woznicki, 202 Wis.2d at 191, 549 N.W.2d at 705. Then, the custodian "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." See id. at 192, 549 N.W.2d at 705 (quoting Newspapers, Inc., 89 Wis.2d at 427, 279 N.W.2d at 184).

2. Woznicki v. Erickson

Since Kailin's appeal to the circuit court was brought pursuant to Woznicki v. Erickson, we first speak to that case. While Woznicki has been cited in a few cases, see Klein v. Wisconsin Resource Ctr., 218 Wis.2d 487, 490, 582 N.W.2d 44, 45 (Ct.App.), review denied, 219 Wis.2d 923, 584 N.W.2d 123 (1998); Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of School Dirs., 220 Wis.2d 93, 95, 582 N.W.2d 122, 123 (Ct.App.1998), review granted, 220 Wis.2d 363, 585 N.W.2d 156 (1998), this is the first case in which a more thorough analysis of its procedures is necessary.

We analyze Woznicki in three discussions. First, we discuss the trial court procedure that Woznicki mandates. Second, we address the standard of review the circuit court must apply. Third, we address our appellate standard of review.

a. The Trial Court Procedure

In Woznicki, the State dismissed a sexual assault charge against Woznicki. See Woznicki, 202 Wis.2d at 182, 549 N.W.2d at 701. During the course of the investigation, the district attorney obtained certain of Woznicki's personnel records and his personal telephone...