LOCAL 2489, AFSCME, AFL-CIO v. Rock County

• Decision Date: 07 October 2004
• Docket Number: No. 03-3101.,03-3101.
• Citation: 277 Wis.2d 208,2004 WI App 210,689 N.W.2d 644
• Parties: LOCAL 2489, AFSCME, AFL-CIO, and John Does 1-13, Plaintiffs-Appellants, v. ROCK COUNTY and Eric A. Runaas, Defendants-Respondents, BLISS COMMUNICATIONS, INC. d/b/a The Janesville Gazette, Intervenor-Respondent.
• Court: Wisconsin Court of Appeals

277 Wis.2d 208

2004 WI App 210

689 N.W.2d 644

LOCAL 2489, AFSCME, AFL-CIO, and John Does 1-13, Plaintiffs-Appellants, v. ROCK COUNTY and Eric A. Runaas, Defendants-Respondents, BLISS COMMUNICATIONS, INC. d/b/a The Janesville Gazette, Intervenor-Respondent.

No. 03-3101.

Court of Appeals of Wisconsin.

Submitted on briefs April 22, 2004.

Decided October 7, 2004.

On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Bruce F. Ehlke and Danielle L. Carne of Shneidman, Hawks & Ehlke, S.C., Madison.

On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas A. Schroeder, corporation counsel, Janesville.

On behalf of the intervenor-respondent, the cause was submitted on the brief of Thomas J. Basting, Sr. and Margery Mebane Tibbetts of Brennan, Steil, Basting, S.C., Janesville.

Before Deininger, P.J., Dykman and Vergeront, JJ.

¶ 1. DEININGER, P.J.

Local 2489 of AFSCME, AFL-CIO, and thirteen of its members appeal an order that dismissed their complaint seeking to enjoin the Rock County Sheriff from releasing certain records pursuant to an open records request from The Janesville Gazette. The union¹ claims that the trial court should have enjoined the release of the records because they relate "to the current investigation of . . . possible misconduct connected with employment by an employee," WIS. STAT. § 19.36(10)(b),² and thus the sheriff may not provide the public access to them. The union also claims that, even if the records do not fall within the statutory exception from disclosure, the trial court erred in concluding that the public interest in their disclosure outweighed the public interest in protecting the reputational and privacy interests of the employees in this case. We reject both arguments and affirm the appealed order.

BACKGROUND

¶ 2. In response to the supreme court's holdings in Milwaukee Teachers' Education Association v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999), and Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), the legislature last year enacted 2003 Wis. Act 47. See Joint Legislative Council Prefatory Note to 2003 Wis. Act 47. The act provides, among other things, that if a public authority decides to release certain employee-related records to someone who has requested access to them under WIS. STAT. § 19.35, before doing so, the authority must give notice to the "record subject," who may then commence an action in circuit court to prevent their release. See WIS. STAT. § 19.32(2g) (defining "record subject" as "an individual about whom personally identifiable information is contained in a record"); WIS. STAT. § 19.356 (prescribing procedures for a record subject to bring an action to enjoin release of the records). ¶ 3. The types of records which trigger the notice and right-of-action provisions of WIS. STAT. § 19.356 include the following:

A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer.

WIS. STAT. § 19.356(2)(a)1. If a record subject commences an action under § 19.356(4) to restrain the intended release of records, the requester of the records may intervene in the action, as The Janesville Gazette has done here. When deciding whether to enjoin the release of records to a requester, the circuit court "shall apply substantive common law principles construing the right to inspect, copy, or receive copies of records in making its decision." Section 19.356(6). The statute prohibits release of the requested records during the pendency of the action, including any appeals of an adverse decision by the record subject. Section 19.356(5).

¶ 4. In addition to establishing notice and right-of-action provisions relating to certain employee-related records, 2003 Wis. Act 47 also created several new statutory exceptions to the general requirement for public access to public records. Pertinent here is a new exception for "[i]nformation relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation." WIS. STAT. § 19.36(10)(b). If a record falls within this exception from disclosure, "an authority shall not provide access" to the record, regardless of the public interests weighing in favor of disclosure. Section 19.36(10); see also Joint Legislative Council Prefatory Note to 2003 Wis. Act 47 (explaining that the act creates a category of "[e]mployee-related records that are absolutely closed to public access under the open records law").

¶ 5. The Rock County Sheriff notified thirteen employees of his department that, based on an investigation of their conduct, they would be disciplined for "using Department computers to view inappropriate internet images." Three were discharged and ten received written reprimands. At about this same time, The Janesville Gazette sent an open records request to the sheriff seeking "copies of reports generated by internal or criminal investigations resulting in disciplinary action" against department employees during the relevant time frame. The sheriff notified each of the employees of his intended action in response to the Gazette's request:

As the investigation is complete and disposed of with [the termination of employment/written reprimand], I believe the reports may be accessed by the media pursuant to § 19.36(10)(b), Wis. Stats. However, in performing the required balancing tests I have determined that the public interest in your privacy and reputational interests outweighs the public interest in the release of your identity. Therefore, I have decided that prior to the release of the reports your name and any other identifying information will be redacted.

¶ 6. The sheriff's notices to the affected employees also informed them of their right under WIS. STAT. § 19.356 to commence an action to prevent the release of the records in question. They did so, joined by their union, Local 2489, AFSCME, AFL-CIO, naming Rock County and the Rock County Sheriff as defendants. The Janesville Gazette intervened. The employees and the union argued that, because they had filed grievances pursuant to their collective bargaining agreement with the county regarding the discipline imposed by the sheriff, the "investigation" into their alleged misconduct had not been completed. They also argued that, even if the exception for records of "current investigation[s]" under WIS. STAT. § 19.36(10)(b) did not apply, public interest considerations weighed against releasing these records. The circuit court concluded that the relevant investigation was completed and that the public interest in disclosure outweighed any public interest in protecting the privacy of the affected employees. Accordingly, the court entered an order denying the requested injunction and dismissing the complaint.

ANALYSIS

¶ 7. The union's first argument requires us to interpret WIS. STAT. § 19.36(10)(b) and thus presents a question of law that we decide de novo. Hempel v. City of Baraboo, 2003 WI App 254, ¶ 10, 268 Wis. 2d 534, 674 N.W.2d 38, review granted, 2004 WI 20, 269 Wis. 2d 197, 675 N.W.2d 804 (WI Feb. 24, 2004) (No. 03-0500). Whether the public interest in disclosure of public records is outweighed by a competing public interest in keeping certain records confidential is also an issue we decide independently, owing no deference to the circuit court's conclusion. Kraemer Bros., Inc. v. Dane County, 229 Wis. 2d 86, 95, 599 N.W.2d 75 (Ct. App. 1999).

¶ 8. The union argues that the investigation into the employees' alleged misconduct had not been concluded when the sheriff decided that redacted copies of the records could be released to The Janesville Gazette. Thus, according to the union, the records are covered by the statutory exception for records of a "current investigation" of possible employee misconduct "prior to disposition of the investigation," as set forth in WIS. STAT. § 19.36(10)(b). Accordingly, the union contends that the sheriff had no authority to grant access to these records, rendering any balancing of public interests irrelevant.

¶ 9. The union acknowledges that the sheriff's own investigation of the employee's conduct had concluded, resulting in the employees receiving discipline. It argues, however, that the filing of grievances had the effect of prolonging the investigation of the employee's conduct, which it asserts is "an ongoing process that continues until there has been a final disposition at the conclusion of the grievance-arbitration process," pursuant to its collective bargaining agreement with the county. Specifically, the union argues:

A full and fair investigation, involving both the employer and the Union that represents the employees, is essential to the grievance-arbitration process. The resolution of a grievance entails conferring with individuals, gathering and reviewing documents and other information, performing research and weighing and evaluating evidence. All of this investigatory activity is important and necessary, if there is going to be an informed and fair disposition of the pending grievances. In order to maintain the integrity of this process, and as provided for at Sec. 19.36(10)(b), Wis. Stat., the confidentiality of the investigation should be protected until there has been a final disposition of the grievances.

¶ 10. The union's argument thus requires us to determine whether the terms "investigation" and "disposition of the investigation" as employed in WIS. STAT. § 19.36(10)(b) can be interpreted so broadly as to encompass the entire grievance resolution process through its completion. The trial court concluded that the terms could not be read so...