Linzmeyer v. Forcey

• Decision Date: 02 July 2002
• Docket Number: No. 01-0197.,01-0197.
• Citation: 646 N.W.2d 811,2002 WI 84,254 Wis.2d 306
• Parties: Armand LINZMEYER, Plaintiff-Appellant, v. D.J. FORCEY, Defendant-Respondent.
• Court: Wisconsin Supreme Court

254 Wis.2d 306

2002 WI 84

646 N.W.2d 811

Armand LINZMEYER, Plaintiff-Appellant, v. D.J. FORCEY, Defendant-Respondent.

No. 01-0197.

Supreme Court of Wisconsin.

Oral argument May 2, 2002.

Decided July 2, 2002.

For the plaintiff-appellant there was a brief by Leonard D. Kachinsky and Kachinsky & Petit Law Offices, Neenah, and oral argument by Leonard D. Kachinsky.

For the defendant-respondent there was a brief (in the court of appeals) by James B. Gunz, city attorney, Neenah.

An amicus curiae brief was filed by Robert J. Dreps, Kendall W. Harrison and La Follette Godfrey & Kahn, Madison, on behalf of the Wisconsin Newspaper Association, the Wisconsin Broadcasters Association, the Wisconsin Freedom of Information Council, and the Post-Crescent, with oral argument by Kendall W. Harrison.

An amicus curiae brief was filed by Gordon E. McQuillen, Madison, on behalf of the Wisconsin Professional Police Association.

An amicus curiae brief was filed (in the court of appeals) by Bruce Meredith, Melissa A. Cherney, and Chris Galinat, Madison, on behalf of the Wisconsin Education Association Council, with oral argument by Bruce Meredith.

¶ 1. JON P. WILCOX, J.

In this case, we review a circuit court judgment that allowed the release of a Neenah Police Department (NPD) report under the Wisconsin Open Records Law, Wis. Stat. § 19.31-.39 (1999-2000).¹ The police report was made pursuant to an investigation of Armand Linzmeyer, a teacher at Neenah High School (NHS). The investigation on which the report was based did not lead either to Linzmeyer's arrest or his prosecution, and the Neenah Joint School District did not use the report to initiate any administrative disciplinary action against Linzmeyer. The investigation was closed by the time the open records request was made.

¶ 2. The Appleton Post-Crescent newspaper ("the Post-Crescent") and the parents of two NHS students sought release of the investigation report. The Neenah City Attorney planned to release the report in the absence of judicial action. Linzmeyer then sought an injunction from the circuit court to prevent release of the report.

¶ 3. The Winnebago County Circuit Court, Barbara H. Key, Judge, concluded that the public's interest in the disclosure of the report outweighed the public's interest in the protection of Linzmeyer's reputation or privacy, and denied Linzmeyer's request for an injunction. Linzmeyer appealed the decision, and the court of appeals certified the case to this court. We accepted the certification, and we now affirm the circuit court's ruling and remand the case to the circuit court to assess what, if any, redaction is necessary.

I

¶ 4. The essential facts of the case are not in dispute. Linzmeyer was a mathematics teacher and the girls' volleyball coach at NHS. During November and December 2000, the NPD conducted an investigation into allegations that Linzmeyer had made inappropriate statements to, and had engaged in inappropriate conduct with, a number of his female students.² The investigation was triggered by allegations from two of Linzmeyer's students and involved interviews of more than 20 students. As a result of the investigation, NPD created Report No. 00-11938 ("the Report"), which was a compilation of information obtained by the NPD during its investigation of Linzmeyer. Respondent D.J. Forcey, as the chief of police, was the custodian of the Report.

¶ 5. Linzmeyer was neither arrested nor prosecuted based on any information contained in the Report. Additionally, the Neenah Joint School District did not take any administrative disciplinary action against Linzmeyer as a result of the Report or as a result of any information contained therein. The school district reassigned Linzmeyer to other duties and Linzmeyer agreed to resign his position at the end of the school year.

¶ 6. The parents of the two students whose allegations had initiated the investigation, along with the Post-Crescent, requested release of the Report under the open records law. Linzmeyer subsequently filed suit in the Winnebago County Circuit Court, seeking an injunction to block the release of the Report.

¶ 7. At a hearing on January 11, 2001, the Neenah City Attorney, James Gunz, confirmed that no enforcement action was contemplated against Linzmeyer as a result of the Report. Gunz also stated that the City intended to release the report in a redacted form, based on the policy favoring the release of public records. After reviewing the report independently, the circuit court denied Linzmeyer's request for an injunction.

¶ 8. The circuit court held that, as a public record, the Report carried the presumption of complete access, which could only be overcome by an overriding public interest in keeping the records confidential. The court noted that, as a public school teacher, Linzmeyer was in a position of public trust. Thus, the public had an interest in knowing the circumstances surrounding the accusation that Linzmeyer had made inappropriate remarks toward students. The circuit court noted that, although the information was embarrassing and might harm Linzmeyer's reputation, the statements Linzmeyer was accused of having made were spoken in open class in front of large groups of students, and many were corroborated by other students or later admitted by Linzmeyer himself, thus countering Linzmeyer's privacy argument. The circuit court concluded that the public's interest in disclosure outweighed the public's interest in Linzmeyer's reputation or privacy, and denied the injunction.

¶ 9. The circuit court then granted Linzmeyer a temporary injunction so he could seek an appeal. The court of appeals granted Linzmeyer leave to appeal the circuit court's order, and certified the appeal to this court. We accepted the certification and we now affirm the circuit court's order. We hold that the open records law applies to the Report in this case and there is thus a strong presumption in favor of release. Additionally, we hold that the presumption was not overridden in this case by the public interest in protecting Linzmeyer's privacy and reputation.

II

¶ 10. We address the issues presented here in two steps. First, we determine whether the open records law applies to the record in question here—the report of a police investigation where the investigation has been closed, and where no enforcement action has been taken or is contemplated. In determining whether the open records law applies, we look at the statutory language of that law, along with its statutory and common law exceptions. If the basic open records law applies, there are no blanket exceptions from release, other than those provided by the common law or statute. Woznicki v. Erickson, 202 Wis. 2d 178, 183, 549 N.W.2d 699 (1996). Here, we hold that the open records law applies, and that no statutory or common law exceptions exempt the Report from release.

¶ 11. Because we hold that the open records law applies to the Report, our second issue is whether the presumption of openness under the open records law is overcome by any other public policy. We have recognized that the policy toward openness, although strong, is not absolute. Milwaukee Teachers' Educ. Ass'n v. Bd. of Sch. Dirs., 227 Wis. 2d 779, 787, 596 N.W.2d 403 (1999). In the absence of a statutory or common law exception, the presumption favoring release can only be overcome when there is a public policy interest in keeping the records confidential. Wis. Newspress v. Sheboygan Falls Sch. Dist., 199 Wis. 2d 768, 776, 546 N.W.2d 143 (1996) (citing Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984)). Thus, our second step is to determine if there is a public policy that overrides the presumption of openness.

¶ 12. To determine whether the presumption of openness is overcome by another public policy concern, we apply the balancing test articulated by this court in Woznicki v. Erickson, 202 Wis. 2d 178, and Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979). That is, we must weigh the public policies not in favor of release against the strong public policy that public records should be open for review. In weighing the public policies for and against release in this case, we also take the opportunity to provide some guidance on dealing with the open records law as it relates to police records, and we attempt to identify factors that should be taken into consideration by records custodians before law enforcement records are publicly released. In this case, however, we ultimately conclude that the presumption for openness is not overcome by any other public policy, and we thus affirm the order of the circuit court.

A

[1, 2]

¶ 13. Our first issue is whether the open records law applies to the Report in this case. To decide this question, we apply the open records law to an undisputed set of facts. This is a matter of statutory interpretation, which we review independently of the lower courts, but benefiting from their analyses. Milwaukee Teachers, 227 Wis. 2d at 788.

¶ 14. The legislature has clearly articulated the policy regarding the release of government records in Wis. Stat. § 19.31. In that section, the legislature stated:

. . . [I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be

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