State ex rel. Morke v. Record Custodian, Dept. of Health & Social Services
| Decision Date | 13 December 1990 |
| Docket Number | No. 90-0327-CR,90-0327-CR |
| Citation | 159 Wis.2d 722,465 N.W.2d 235 |
| Parties | STATE ex rel. Thomas R. MORKE, Petitioner-Respondent, v. RECORD CUSTODIAN, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Respondent-Appellant. |
| Court | Wisconsin Court of Appeals |
Donald J. Hanaway, Atty. Gen., and Robert W. Larsen, Asst. Atty. Gen., for respondent-appellant.
Thomas R. Morke, Lexington, Va., pro se.
Before EICH, C.J., and DYKMAN and SUNDBY, JJ.
Jean Gilpin, the record custodian of the Wisconsin Department of Health and Social Services, appeals from an order compelling her to turn over certain prison records to Thomas Morke, a recently-released prison inmate. The issue is whether Gilpin properly weighed the harm that would flow from providing the records to Morke against the strong presumption in favor of public access to state records. We conclude that she did, and we reverse the order.
While still incarcerated, Morke requested from the institution's record custodian the names, home addresses, and published home telephone numbers of all persons employed at the institution. 1 The custodian refused Morke's request, stating that the employees and their families would be subjected "to a substantial risk of harassment or other jeopardy" if he were given the information. Morke appealed the denial to Gilpin who affirmed, stating the reasons underlying her decision:
[Y]our access to the requested details about the FLCI employes would subject them and their families to a substantial risk of harassment or other jeopardy. Moreover, I believe your record access would tend to discourage persons from serving as institution employes, and would thereby adversely affect the state's correctional system. I believe these consequences would cause such harm to the public interest as to outweigh any presumed right of record access.
Morke then filed a petition for mandamus in circuit court. After issuing an alternative writ of mandamus requiring the department to release the records or show cause why it need not, and after considering the department's return to the writ, the court directed Gilpin to turn over the records, stating that Morke's request presented no threat to internal prison security because he was no longer a prisoner. 2 The department appealed. 3
Gilpin argues that the harm in allowing Morke access to the records outweighs the strong public policy in favor of public access. "Whether harm to the public interest from inspection [of public records] outweighs the public interest in inspection is a question of law" which we decide without deference to the trial court's decision. Journal/Sentinel, Inc. v. Aagerup, 145 Wis.2d 818, 825, 429 N.W.2d 772, 775 (Ct.App.1988) (citation omitted).
As a general rule, any person has a right to inspect any public record. Sec. 19.35, Stats. "Our law presumes that public records shall be open to the public." Journal/Sentinal, 145 Wis.2d at 822, 429 N.W.2d at 773-74 (citation omitted). "Nonetheless, the public's right to access is not absolute, and access is barred on those occasions when the public interest in nondisclosure outweighs the right to inspect." Id. (citation omitted).
If the public officer having custody of the record "determines that permitting inspection would result in harm to the public interest ... outweigh[ing] any benefit that would result from granting inspection," the officer must "refuse the demand for inspection and state specifically the reasons for this refusal." State ex rel. Youmans v. Owens, 28 Wis.2d 672, 682, 137 N.W.2d 470, 475 (1965).
"We measure the sufficiency of the department's explanation [for its refusal] as of the time it denied Morke's request." State ex rel. Morke v. Record Custodian, 154 Wis.2d 727, 733, 454 N.W.2d 21, 24 (citation omitted). "That he has since been released from Fox Lake is irrelevant." Id.
We conclude that the reasons stated by Gilpin for denying Morke access--concern for the safety and well-being of the prison staff and their families and for institutional morale--outweigh the general rule in favor of access to government records and would constitute an unwarranted invasion of the employees' personal privacy. Indeed, Fox Lake's superintendent was forced to remove local telephone directories from the library after institution employees complained that they were being harassed by inmates. The institution's "vital interest in ... ensuring the safety of all--both within and without the prison boundaries" would be jeopardized if Morke were given what he seeks. State v. Killebrew, 109 Wis.2d 611, 620, 327 N.W.2d 155, 160 (Ct.App.1982) . Additionally, persons may be discouraged from serving as institution employees if they know the public would be provided with personal information about them on request.
Our ruling is not inconsistent with the public policy behind the open records law: "[Because] a representative government is dependent upon an informed electorate, it is ... the public policy of this state that 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." Sec. 19.31, Stats. Granting Morke's request would in no way further the purpose of the open records law; the information he seeks neither "informs the electorate," promoting better self-governance, nor concerns "official acts" of government employees. There is very little, if any, general public interest in allowing access to personal information about prison employees that bears no apparent relation to their public duties.
Finally, we reject Morke's assertion that the publication elsewhere--in a telephone book, for example--of some of the information he seeks undercuts the reasons given for denying his request. Although the department cannot prevent him from gathering the information he seeks elsewhere, the department is not required "to help him complete a project inimical to institutional security." Morke v. Record Custodian, 154 Wis.2d at 733, 454 N.W.2d at 24.
Order Reversed.
The legislature has determined that the identity of a person seeking information under our open records law is irrelevant. Sec. 19.35(1)(i), Stats. 1 In addition, the legislature has declared that "[t]he denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." Sec. 19.31, Stats.
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