TEACHERS'ED. ASS'N v. BD. OF SCH. DIRECTORS
| Decision Date | 08 July 1999 |
| Docket Number | No. 97-0308.,97-0308. |
| Parties | MILWAUKEE TEACHERS' EDUCATION ASSOCIATION, James Roe 1-5 and Jane Roe 1-2, Plaintiffs-Appellants, v. MILWAUKEE BOARD OF SCHOOL DIRECTORS, Joseph Fisher and Robert C. Jasna, Defendants-Respondents, JOURNAL SENTINEL, INC., Defendant-Intervenor-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-intervenor-respondent-petitioner there were briefs by David Lucey, Paul Bargren and Foley & Lardner, Milwaukee and oral argument by David Lucey.
For the plaintiffs-appellants there was a brief by Richard Perry, Robert J. Lerner, B. Michele Sumara and Perry Lerner, Quindel & Saks, S.C., Milwaukee and oral argument by Robert J. Lerner.
Amicus curiae brief was filed by James A. Friedman, Robert J. Dreps and LaFollette & Sinykin, Madison for the WI Newspaper Association, the WI Broadcasters Association and the Freedom of Information Council.
Amicus curiae brief was filed by Melissa A. Cherney and Chris Galinat, as counsel, Madison, for the Wisconsin Education Association Council.
Amicus curiae brief was filed by Bruce F. Ehlke, Aaron N. Halstead and Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, Madison, for District Council 40, AFSCME, AFL-CIO.
Amicus curiae brief was filed by Gordon E. McQuillen and Cullen, Weston, Pines & Bach, Madison, for the Wisconsin Professional Police Association.
Amicus curiae brief was filed by Jon P. Axelrod and DeWitt, Ross & Stevens, S.C., Madison, for Stephen M. Kailin & Linda Kailin.
¶ 1.
The issue in this case is whether public employees are entitled to de novo judicial review under Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), when a records custodian who is not a district attorney decides to release information from the employees' personnel records in response to a request made under Wisconsin's open records law, Wis. Stat. §§ 19.31-.39 (1995-96).1 We hold that the de novo judicial review we recognized in Woznicki applies in all cases in which a record custodian decides to disclose information implicating the privacy and/or reputational interests of an individual public employee, regardless of the identity of the record custodian. Therefore, we affirm the decision of the court of appeals and remand the case to the circuit court for purposes of conducting a de novo review.
¶ 2. The facts of this case are undisputed. As a result of a 1995 district-wide criminal background check, Milwaukee Public Schools (MPS) discovered that 548 of its employees had criminal records. MPS released the names and criminal records of these employees to the Journal Sentinel, Inc. (Journal-Sentinel).
¶ 3. Among the names released were those of plaintiffs James Roe 1-5 and Jane Roe 1-2, all of whom had been convicted of misdemeanors. Six of the plaintiffs were educational assistants and one was a physical education teacher. As a result of the background check, approximately 18 MPS employees, including the seven plaintiffs, were discharged by MPS or resigned under threat of discharge.
¶ 4. In a December 3, 1996, letter, a Journal-Sentinel reporter invoked Wisconsin's open records law and requested the names, positions, building assignments, and hiring dates of any MPS employees who were fired, quit, or were disciplined as a result of the criminal background check. The reporter also wanted to know the specific action taken against each employee and whether any formal grievances had been filed.
¶ 5. Raymond Nemoir, Executive Director of MPS' Department of Human Resources and MPS' personnel records custodian, handled the Journal-Sentinel's request. By letter dated January 3, 1997, Nemoir notified each of the plaintiffs of his decision to release their names, positions, building assignments and hiring dates to the Journal-Sentinel unless they sought the de novo review provided by Woznicki within 10 days. Nemoir indicated that he had performed the required balancing test and had concluded that the public interest in releasing the records outweighed any potential harm to the employees' privacy and reputational interests.
¶ 6. On January 13, 1997, the Milwaukee Teachers' Education Association (the "MTEA") and the seven individual plaintiffs filed this action in Milwaukee County Circuit Court seeking to prevent MPS from releasing the requested information pending de novo review of Nemoir's decision. The circuit court granted the Journal-Sentinel's motion to intervene and issued an order temporarily restraining the Milwaukee Board of School Directors (MBSD) from releasing information pertaining to the seven plaintiffs.2 ¶ 7. The circuit court, Judge Victor Manian presiding,3 held an evidentiary hearing beginning on January 21, 1997, and continuing to January 27, 1997. After hearing the evidence presented and the testimony of Nemoir, Judge Manian determined that Woznicki was limited to situations involving records custodians who are district attorneys. Consequently, Judge Manian did not perform the de novo review contemplated by Woznicki.4 Instead, he dismissed the action for lack of subject matter jurisdiction, a ruling he confirmed in a written order filed January 29, 1997.5
¶ 8. The court of appeals reversed in a decision filed May 12, 1998. Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of Sch. Dirs., 220 Wis. 2d 93, 582 N.W.2d 182 (Ct. App. 1998). The court of appeals concluded that the circuit court had subject matter jurisdiction in the case because Woznicki was not limited to cases in which a district attorney was the records custodian. Id. at 97-99. The court remanded the case to the circuit court with directions to conduct the de novo review by applying the balancing test discussed in Woznicki. Id. at 101. This court granted the Journal-Sentinel's petition for review.
¶ 9. We begin by examining the relevant portions of Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996), the decision at the heart of this appeal. Woznicki involved open records law requests for the personnel file and telephone records of Thomas Woznicki, a school district employee. Woznicki, 202 Wis. 2d at 182 & n.1. Because Woznicki had been the subject of a criminal investigation, the requested records were in the custody of the district attorney. Id. at 182. The district attorney decided to release the records and notified Woznicki. Id. Woznicki sought an injunction in the circuit court to prevent release of the records. Id. The circuit court declined to issue an injunction, but ordered that the district attorney would be enjoined from disclosing the records pending resolution of the issue if Woznicki were to appeal. Id.
¶ 10. Woznicki appealed, and the court of appeals held that the personnel records of public employees were exempt categorically from disclosure. Id. Accordingly, the court of appeals reversed the circuit court's order and remanded the case, directing the circuit court to issue the injunction preventing disclosure of the records. Id. at 183. ¶ 11. This court accepted the district attorney's petition for review, reversed the court of appeals and remanded the case to the circuit court. Id. at 183, 195. In doing so, this court first held that the personnel records of public employees are subject to the open records law. Id. at 183. We also rejected the district attorney's argument that the open records law provided no right to bring a claim for an individual seeking to prevent disclosure of public records pertaining to himself or herself. Id. at 184-85. We stated:
We agree with the District Attorney that the open records law does not explicitly provide a remedy for an individual in Woznicki's position. Yet a review of our statutes and case law persuades us that a remedy, i.e., de novo review by the circuit court, is implicit in our law.
Id. at 185. We analyzed several statutes and cases establishing that there is an important public policy interest in the protection of an individual public employee's privacy and reputation. See id. at 185-90. Without a right to review of records custodians' decisions, we reasoned, individuals affected by the release of requested public records would be left without a means of safeguarding their privacy and reputations. Id. at 190-91.
¶ 12. We then went on to explain the procedure to be followed by custodians and courts in considering requests under the open records law. We stated that prior to releasing records, custodians must apply the following balancing test:
In the first instance, when a demand to inspect public records is made, the custodian of the records 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.
Id. at 191-92 (quoting Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979)). We continued:
The duty of the District Attorney is to balance all relevant interests. Should the District Attorney choose to release records after the balancing has been done, that decision may be appealed to the circuit court, who in turn must decide whether permitting inspection would result in harm to the public interest which outweighs the public interest in allowing inspection.
Woznicki, 202 Wis. 2d at 192. As a corollary to our holding that an individual whose interests in privacy and reputation would be impacted by "the district attorney's potential release of his or her records," we determined that "the District Attorney cannot release the records without first notifying that individual and allowing a reasonable amount of time for the individual to appeal the decision." Id. at 193. We concluded:
We agree with the policy and purpose underlying the open records law: to provide the broadest possible access of the public to public records. However, the right to public access is not absolute. In this case, Woznicki has...
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