Times v. Lakeland Union High Sch., No. 2014AP95.

CourtCourt of Appeals of Wisconsin
Writing for the CourtCANE, J.
Citation855 N.W.2d 904 (Table),357 Wis.2d 722
PartiesThe LAKELAND TIMES and Gregg Walker, Plaintiffs–Appellants, v. LAKELAND UNION HIGH SCHOOL, Defendant–Respondent.
Decision Date16 September 2014
Docket NumberNo. 2014AP95.

357 Wis.2d 722
855 N.W.2d 904 (Table)

The LAKELAND TIMES and Gregg Walker, Plaintiffs–Appellants

No. 2014AP95.

Court of Appeals of Wisconsin.

Sept. 16, 2014.


¶ 1 CANE, J.

In this open records law dispute, The Lakeland Times and its publisher, Gregg Walker (Lakeland Times), seek a record allegedly used by Lakeland Union High School (LUHS) and members of the board of education while hiring a new basketball coach, Rich Fortier. Lakeland Times suspects the record contains fabricated or selectively edited comments from Fortier's former employers and seeks discovery—confidential or otherwise—so it may prove the record is not truthful and its author engaged in misconduct. Following an in camera review of the document, the circuit court granted summary judgment for LUHS.1

¶ 2 We conclude summary judgment was appropriate because the complaint's allegations, taken as true, establish all elements of LUHS's defense. Specifically, LUHS relies on Wis. Stat. § 19.36(10)(d), which prohibits an authority from releasing information “relating to one or more specific employees that is used ... for staff management planning.”2

¶ 3 We further conclude the circuit court erroneously determined genuine issues of material fact existed as to whether the record was an honest representation of Fortier's former employers' comments. Whether a record accurately captures information from former employers is irrelevant under Wis. Stat. § 19.36(10)(d). Accordingly, Lakeland Times was not entitled to discovery on that matter. We affirm.


¶ 4 Lakeland Times filed the present action on November 7, 2012. The complaint alleged that during the summer of 2012, LUHS officials had narrowed their search for a new boys basketball coach to two finalists, Rich Fortier and Levi Massey. LUHS formed a five-member citizen committee to interview the candidates and make a recommendation to the board of education. The committee recommended Massey after LUHS officials submitted a two-page report containing negative comments about Fortier. Principal James Bouché drafted the report based on his telephone conversations with Fortier's previous employers. The committee was not given a similar document about Massey.

¶ 5 On August 27, 2012, district administrator Todd Kleinhans included the report in an email to at least one board of education member. A contentious board meeting was held later that day. Before convening in closed session to discuss the hire, a board member raised concerns about the fairness of the committee process, asking why the interview committee had been provided with negative comments about Fortier, but no comments about Massey. The board ultimately decided to hire Fortier.

¶ 6 The board member's reference to a negative report about Fortier caught Lakeland Times' attention, and it quickly filed an open records request for the report. Kleinhans responded by producing two email messages and Fortier's application materials. However, he refused to produce the report, asserting it was exempt from disclosure under Wis. Stat. § 19.36(10)(d) as a “staff management planning” document.

¶ 7 Lakeland Times launched its own investigation but was unable to independently identify the sources Bouché interviewed or determine the veracity of the negative comments ascribed to them. It then commenced the present suit, alleging the report did not represent a “fair and true report” of Fortier's former employers' comments, with the comments either “selectively edited to negatively portray” Fortier or fabricated entirely. For these reasons, Lakeland Times argued the report was not exempt from disclosure under Wis. Stat. § 19.36(10)(d). LUHS denied the allegations of misconduct.

¶ 8 During discovery, Lakeland Times requested by interrogatory that LUHS divulge the names of the former employers Bouché spoke to. LUHS refused to provide the names or to permit confidential discovery under Wis. Stat. § 19.37(1)(a).

¶ 9 LUHS then sought summary judgment, asserting the record was exempt from disclosure. Lakeland Times opposed the motion, claiming there was a genuine issue of material fact regarding whether the report contained actual comments from Fortier's former employers. Lakeland Times then filed a motion to compel requesting that LUHS produce the record for in camera review by the circuit court and to Lakeland Times' attorney under a protective order prohibiting disclosure to anyone else. The motion further requested an order requiring LUHS to identify each source quoted in the document or appointing a referee to conduct a confidential investigation and prepare a report.

¶ 10 The circuit court initially denied LUHS's summary judgment motion and granted Lakeland Times' motion to compel. It concluded there was a genuine issue of material fact regarding whether Bouché accurately reported the comments of Fortier's former employers. However, the court stayed further discovery and ordered LUHS to submit the report for in camera review.

¶ 11 After reviewing the record, the court wrote both parties. It noted the report did not identify its author or the quoted sources. Accordingly, the court requested that LUHS submit an affidavit from the author of the report identifying the individuals contacted and averring “that the statements and quotes attributed to these individuals are truly and accurately represented in the ‘notes.’ ” It also requested an affidavit that the report provided was actually used in the hiring process.

¶ 12 LUHS submitted the requested affidavit, after which the court vacated its earlier order and granted LUHS summary judgment. The court determined Bouché's report was exempt from disclosure under Wis. Stat. § 19.36(10)(d). It reaffirmed that its earlier decision denying summary judgment had been correct because LUHS's defense was “not supported by evidentiary facts” at the time. However, the affidavit “supplie[d] the necessary information for the court to determine that the ... claimed exemption is appropriate and summary judgment warranted.” Lakeland Times filed a reconsideration motion, which the court denied. It now appeals.


¶ 13 We are required to determine whether the circuit court properly granted summary judgment for LUHS. We review that issue independently of the circuit court's determination, but applying the same methodology. Tews v. NHI, LLC, 2010 WI 137, ¶ 40, 330 Wis.2d 389, 793 N.W.2d 860 (citing Green Spring Farms v. Kersten, 136 Wis.2d 304, 315–17, 401 N.W.2d 816 (1987) ).

¶ 14 The summary judgment methodology is well established. Id., ¶ 41, 401 N.W.2d 816. We first examine the pleadings to determine whether they state claims and present material factual issues for resolution. Id. If the moving party has made a prima facie case for summary judgment, we then examine the affidavits and other proof of the opposing party to determine whether summary judgment is appropriate. Id. If the defendant is the moving party, it must show that a defense would defeat the plaintiff's claims. Id.

¶ 15 Summary judgment is appropriate where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2). The purpose of summary judgment is “to avoid trials when there is nothing to try.” Tews, 330 Wis.2d 389, ¶ 42, 793 N.W.2d 860 (citing Rollins Burdick Hunter of Wis., Inc. v. Hamilton, 101 Wis.2d 460, 470, 304 N.W.2d 752 (1981) ).

¶ 16 The parties request that we interpret and apply Wisconsin's Open Records Law, Wis. Stat. §§ 19.31 –.37. “Where a circuit court, determining a petition for writ of mandamus, has interpreted Wisconsin's open records law ... and has applied that law to undisputed facts, we review the circuit court's decision de novo.” ECO, Inc. v. City of Elkhorn, 2002 WI App 302, ¶ 15, 259 Wis.2d 276, 655 N.W.2d 510.

¶ 17 If the meaning of a statute is plain, we will not inquire further. See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. Statutory language is generally given its common, ordinary, and accepted meaning. Id. We interpret a statute “in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶ 46.

¶ 18 “The Wisconsin Open Records Law embodies one part of the legislature's policy favoring the broadest practical access to government.” Hempel v. City of Baraboo, 2005 WI 120, ¶ 22, 284 Wis.2d 162, 699 N.W.2d 551. Indeed, the public policy statement within the legislation declares 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.” Wis. Stat. § 19.31. The statement further declares that the open records law “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 denied.” Id.

¶ 19 However, the right of the public to access is not absolute. See Woznicki v. Erickson, 202 Wis.2d 178, 194, 549 N.W.2d 699 (1996). Several statutory and common law exemptions prohibit disclosure. One exemption is Wis. Stat. §...

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1 practice notes
  • State ex rel. Balderas v. ITT Educ. Servs., Inc., NO. A-1-CA-35204
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 24 Abril 2018
    ...is not necessarily protected by a legally recognized privilege. See Lakeland Times v. Lakeland Union High Sch. , 2014 WI App 110, ¶ 52, 357 Wis. 2d 722, 855 N.W.2d 904 (distinguishing confidentiality and privilege by defining privilege as "a legal right to refuse a valid subpoena for certai......
1 cases
  • State ex rel. Balderas v. ITT Educ. Servs., Inc., NO. A-1-CA-35204
    • United States
    • New Mexico Court of Appeals of New Mexico
    • 24 Abril 2018
    ...is not necessarily protected by a legally recognized privilege. See Lakeland Times v. Lakeland Union High Sch. , 2014 WI App 110, ¶ 52, 357 Wis. 2d 722, 855 N.W.2d 904 (distinguishing confidentiality and privilege by defining privilege as "a legal right to refuse a valid subpoena for certai......

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