Seifert v. School Dist. of Sheboygan Falls

• Decision Date: 29 August 2007
• Docket Number: No. 2006AP2071.,2006AP2071.
• Citation: 2007 WI App 207,740 N.W.2d 177
• Parties: David SEIFERT and Sandra Seifert, Petitioners-Appellants, v. SCHOOL DISTRICT OF SHEBOYGAN FALLS, Respondent-Respondent.
• Court: Wisconsin Court of Appeals

740 N.W.2d 177

2007 WI App 207

David SEIFERT and Sandra Seifert, Petitioners-Appellants, v.SCHOOL DISTRICT OF SHEBOYGAN FALLS, Respondent-Respondent.

No. 2006AP2071.

Court of Appeals of Wisconsin.

Oral Argument July 19, 2007.

Opinion Filed August 29, 2007.

On behalf of the petitioners-appellants, the cause was submitted on the briefs and oral argument of Amy Irene Washburn of Darrow, Dietrich & Hawley, S.C. of Sheboygan.

On behalf of the respondent-respondent, the cause was submitted on the brief of Bradley D. Armstrong and Lori M. Lubinsky of Axley Brynelson, LLP, of Madison.There was oral argument by Lori M. Lubinsky.

Before BROWN, C.J., NETTESHEIM and SNYDER, JJ.

¶ 1NETTESHEIM, J

This case involves the Wisconsin Open Records Law, WIS. STAT. §§ 19.31-19.39(2005-06),¹ with particular emphasis on § 19.35.David and Sandra Seifert appeal from a judgment dismissing their petition and supplemental petition for a writ of mandamus.The petitions sought to reverse the decision of the School District of Sheboygan Falls not to release records related to its investigation of the Seiferts' complaints about their son's high school football coach.

¶ 2 The Seiferts had filed a Notice of Injury with the District before submitting their Open Records request.The circuit court denied the initial petition because it concluded, as did the District, that the requested records were compiled in connection with circumstances that may lead to a court proceeding and thus were exempt from disclosure pursuant to WIS. STAT. § 19.35(1)(am)1.The court also denied the petition under § 19.35(1)(a) as a request for employee personnel records pursuant WIS. STAT. § 19.36(10)(d).

¶ 3The circuit court further denied the Seiferts' supplemental petition seeking records of the attorney fee bills incurred by the District as a result of an investigation conducted by the District's general counsel in response to the Seiferts' complaints.The court held that the Seiferts' request was ambiguous as to whether it covered the billing records.The court also held that the issue was moot since the Seiferts had already obtained copies of the attorney fee bills from another source.

¶ 4 In light of these rulings, the circuit court also rejected the Seiferts' request for punitive damages.

¶ 5 On appeal, the Seiferts contend the District and the circuit court used an improper sequence in analyzing their request.They complain that the District and the court erred by first assessing their request under WIS. STAT. § 19.35(1)(am).They argue that the analysis instead should have commenced under § 19.35(1)(a), which they assert would have resulted in the release of the records.We disagree.We conclude that § 19.35(1)(a) and (am) do not always present wholly discrete inquiries.In some cases, considerations supporting nondisclosure under § 19.35(1)(am)1. also may arise under the statutory or common-law exceptions under § 19.35(1)(a) and the balancing of interests contemplated under that subsection.We hold that this is such a case.The Seiferts' Notice of Injury led to the District's investigation and generated the records the Seiferts now seek.The District's collective reasons for not releasing the records-especially the formalized suggestion, if not the threat, of litigation-are justified by common-law and statutory principles protecting attorney work product, public policies underlying the open meeting statute, and the balancing of public interests.

¶ 6 Finally, we agree that the District reasonably concluded that the Seiferts' Open Records request did not embrace the attorney fee bills and therefore the District's failure to produce such records did not violate the Open Records Law.

¶ 7We therefore uphold the circuit court's ruling that the District did not violate the Open Records Law and that the District's conduct was not arbitrary and capricious warranting an award of punitive damages.We affirm the order.

BACKGROUND

¶ 8 The essential facts, taken from the Seiferts' petition and from affidavits filed on the parties' behalf, are not in dispute.The Seiferts' son, Patrick, played varsity football at Sheboygan Falls High School.During the 2004-05 school year, a dispute arose between the Seiferts and Coach Dan Juedes.The Seiferts contended that Juedes had belittled Patrick in front of the team for not playing, per his doctor's orders, while injured.They also contended that Juedes had withheld mail from college recruitment programs addressed to Patrick in care of the school.

¶ 9 In April 2005, the Seiferts filed a Notice of Injury with the District relating to damages they claimed Juedes' actions caused Patrick.On June 20, the Seiferts attended a school board meeting at which they said Juedes had violated Patrick's rights and they would commence litigation unless the District took action.On June 22, the board president wrote a letter to Juedes ("the board letter") advising him that the board deliberated after meeting with the Seiferts and their attorney and determined to employ an attorney/investigator to immediately commence an investigation.The District then hired its general counsel, Davis & Kuelthau, S.C., to investigate the Seiferts' complaints against Juedes and report back with a recommendation to the Board.The District's counsel conducted the requested investigation and retained all notes and documents generated in the course of the inquiry.The investigation resulted in a September 14, 2005 agreement among Juedes, the District and the Sheboygan Falls Faculty Association("the Agreement").The District maintained only the Agreement and the board letter in its possession.Both were placed in Juedes' personnel file.²

¶ 10 In October, the Seiferts filed a request with the District under the Open Records Law for:

all records (including, but not limited to, all materials, documents, reports, statements, interviews, meeting minutes and agenda, correspondence, evaluations, memoranda, agreements, contracts, notes, etc.) which were considered, produced, created, maintained, or kept by the District and/or its agents and attorneys in the course of the investigation, including records which relate to the disposition of the investigation, any disciplinary actions taken or to be taken by the District and/or its agents against Coach Juedes, and/or any recommendations with regard to the future as a result of the investigation.

The Seiferts also specifically requested pursuant to WIS. STAT. § 19.35(1)(am) all records containing personally identifiable information about David, Sandra or Patrick which were "considered, produced, created, maintained, or kept by the District and/or its agents and attorneys in the course of the investigation, including the disposition of the investigation."

¶ 11 The District denied the Seiferts' request.The three-page letter detailed numerous reasons for the denial, including: (1) the records were exempt under WIS. STAT. § 19.35(1)(am)1. as records containing personally identifiable information that was collected or maintained in connection with a complaint, investigation or other circumstances that may lead to a court proceeding; (2) the records were the work product of the District's counsel and contained privileged information; and (3) the records were part of Juedes' personnel file.The letter did not address any attorney fee billing records.

¶ 12 The Seiferts then filed a petition for a writ of mandamus pursuant to the Open Records Law seeking an order directing the District to release the records recited in their request.Shortly thereafter they filed a supplemental petition for the Davis & Kuelthau attorney fee billing records after learning that the District had released those billing records to another Open Records requester who had specifically requested them.The Seiferts had received a copy of the billing records from someone to whom the other requester had given a copy, and they attached that copy to their supplemental petition.The Seiferts contended that the District's failure to release the attorney fee billing records was improper because the records contained personally identifiable information.In support, the Seiferts noted two entries on the billings labeled "Seifert."

¶ 13 The District defended against the Seiferts' petition, relying on the reasons for refusal set out in the District's letter of denial.As to the attorney fee billings, the District responded that the records custodian did not consider the Davis & Kuelthau bills to be within the scope of the Seiferts' request because: (1)the bills were not specifically mentioned or identified in the request, and (2) the District did not construe the bills to be created or kept "in the course of the investigation."³

¶ 14The circuit court denied both petitions.As to the initial petition, the court concluded that the records were exempt under WIS. STAT. § 19.36(10)(d) because they were maintained in Juedes' personnel file to be used in evaluating his job performance.The court also concluded that the records were exempt under § 19.35(1)(am)1. as records collected or maintained in connection with circumstances that may lead to a court proceeding because the investigation flowed from the Notice of Injury, the first step in a court proceeding against a government entity.Finally, the court denied the supplemental petition because the request was ambiguous as to whether it covered the attorney fee billings.The court also held that this issue was moot since the Seiferts already had received the billing records from another source.As a result of these rulings, the court concluded that the District had not acted arbitrarily and capriciously and therefore rejected the Seiferts' claim for punitive damages.Later, the court denied the Seiferts' motion for reconsideration.The Seiferts now appeal from the order denying their petitions for a writ of mandamus.

DISCUSSION

¶ 15 Wisconsin's Open Records Law represents the legislature's policy...