Village of Butler v. Cohen, 90-1062

• Decision Date: 15 January 1991
• Docket Number: No. 90-1062,90-1062
• Citation: 163 Wis.2d 819,472 N.W.2d 579
• Parties: VILLAGE OF BUTLER, a municipal corporation, Plaintiff-Appellant, v. Barry S. COHEN, Defendant-Respondent. d VILLAGE OF ELM GROVE, a municipal corporation, Plaintiff-Appellant, v. Dudley A. WILLIAMS, Defendant-Respondent.d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 579

472 N.W.2d 579

163 Wis.2d 819

VILLAGE OF BUTLER, a municipal corporation, Plaintiff-Appellant, v. Barry S. COHEN, Defendant-Respondent. ^d

VILLAGE OF ELM GROVE, a municipal corporation, Plaintiff-Appellant, v. Dudley A. WILLIAMS,

Defendant-Respondent.d

No. 90-1062.

Court of Appeals of Wisconsin.

Oral Argument Jan. 15, 1991.

Opinion Released June 19, 1991.

Opinion Filed June 19, 1991.

Linda de la Mora (orally), and Paul E. Alexy, de la Mora & de la Mora, Elm Grove, for plaintiffs-appellants.

Timothy J. O'Brien, William A. Pangman & Associates, S.C., Waukesha, for defendants-respondents.

Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.

SCOTT, Judge.

This declaratory judgment action involves the Public Records Law, secs. 19.31 through 19.39, Stats. The villages of Butler and Elm Grove appeal from an order denying their motion for summary judgment and compelling them to disclose certain police officer personnel files. The villages argue that the trial court failed to examine the public policy balancing test conducted by the record custodians. We agree. We reverse because public policy weighs in favor of nondisclosure. ¹

Attorneys Barry Cohen and Dudley Williams ("defendants" or "requesters") requested from the villages of Butler and Elm Grove, respectively, the personnel files of the police officers who had arrested two of their clients for driving while intoxicated. ^{2 2} Specifically, they requested from the files:

any and all disciplinary actions taken or contemplated, including but not limited to, citizen complaints, reprimands, suspensions, and investigations; any and all performance reviews, whether for promotional purposes or otherwise.

The requests were made pursuant to sec. 19.35, Stats.

The villages released parts of the files but denied, in writing, most of the requested information. In refusing disclosure, both villages claimed that the harm from permitting access to the records outweighed the strong presumption in favor of public access to them. Both villages cited numerous justifications for their position. Then, pursuant to sec. 806.04, Stats., the villages asked the trial court to determine whether disclosure is mandated under the public records law. The two cases were consolidated upon stipulation of the parties and the villages moved for summary judgment.

Without reviewing the public policy balancing test the custodians had undertaken in making their determination to withhold the files, the trial court denied summary judgment because the villages did not state a clear statutory exception exempting police personnel files from disclosure. It also commented that, although this was not the issue before the court, the "better practice [would be] to have an in camera inspection of the file rather than complete disclosure." The trial court then ordered the villages to turn over the records to the defendants, but stayed that portion of the order pending this appeal.

This case involves the application of the public records law to a set of undisputed facts. The application of a statute to a particular set of facts presents a question of law on which we owe no deference to the trial court's conclusions. Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis.2d 480, 485, 373 N.W.2d 459, 462 (Ct.App.1985).

The declared public policy of this state favors liberal access to public records. Section 19.31, Stats. Except as otherwise provided by law, any requester has a right to inspect any record, sec. 19.35(1)(a), Stats., or to make or receive a copy of any written record. Section 19.35(1)(b). The general presumption is that public records shall be open to the public unless there exists: (1) a clear statutory exception; (2) a common law limitation; or (3) an overriding public interest in keeping the public record confidential. Hathaway v. Joint School Dist. No. 1, 116 Wis.2d 388, 397, 342 N.W.2d 682, 687 (1984).

When faced with a demand for inspection, the records custodian must balance the public's right of inspection against the public interest in nondisclosure. Oshkosh Northwestern Co., 125 Wis.2d at 483, 373 N.W.2d at 461. The denial to a written request must be in writing, sec. 19.35(4)(b), Stats., and must be accompanied by a statement of the specific public policy reason for the refusal. Journal/Sentinel, Inc. v. Aagerup, 145 Wis.2d 818, 822, 429 N.W.2d 772, 774 (Ct.App.1988). A primary reason for requiring the custodian to state specific policy reasons for refusal is to provide the court with a basis for its review. Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 154 Wis.2d 793, 798, 453 N.W.2d 922, 925 (Ct.App.1990), rev'd on other grounds, 162 Wis.2d 142, 469 N.W.2d 638 (1991). Although the custodian is not required to provide a detailed analysis of the record and why public policy directs that it must be withheld, Aagerup, 145 Wis.2d at 823, 429 N.W.2d at 774, mere legal conclusions that a record is "confidential" or that its release would be "contrary to the public interest" insufficiently justify refusal because such reasons lack specificity. See Baldarotta, 154 Wis.2d at 799, 453 N.W.2d at 925.

When reviewing a denial of inspection, the trial court must determine whether the custodian's denial was made with the requisite specificity and, if so, whether the reasons given are sufficient to outweigh the strong public policy favoring disclosure. See Aagerup, 145 Wis.2d at 821-22, 429 N.W.2d at 773. As we have stated, the public's presumptive right to inspect public records may have to yield if outweighed by the public interest in nondisclosure. Oshkosh Northwestern Co., 125 Wis.2d at 483, 373 N.W.2d at 461.

Here, the villages each issued detailed written denials of the defendants' requests for information from the police officers' personnel files. Instead of reviewing these reasons and undertaking the required balancing of interests, however, the trial court ordered disclosure simply because the villages could not state a specific statutory exception which exempts police personnel files from disclosure. Relying on Hathaway, the villages argue that a statutory exception is but one of three reasons disclosure might be denied. Hathaway, 116 Wis.2d at 397, 342 N.W.2d at 687. The villages assert that failing to take into account either of the two other reasons--a common law limitation or an overriding public interest--constitutes reversible error.

As an initial matter, the requesters state that the villages refused to permit an in camera inspection. The requesters contend that without an in camera inspection, the court had "no basis for examining the common law limitations nor for deciding whether there was an overriding public interest in keeping the public record confidential." We disagree. The issue here is not the contents of these particular officers' personnel files, but the personnel files of police officers in general. We thus hold that if the policy reasons the custodian lists for nondisclosure are of sufficient specificity, and if those reasons override the presumption in favor of disclosure, an in camera inspection is unnecessary.

We now turn to the propriety of the trial court's ruling. Our inquiry is twofold. Aagerup, 145 Wis.2d at 821, 429 N.W.2d at 773. We first determine whether the custodian's denial was made with the specificity required by sec. 19.35, Stats., and case law. Id. To meet the specificity requirement, the custodian must give a public policy reason that the record warrants confidentiality. Id. at 823, 429 N.W.2d at 774.

If the requisite showing of specificity is made, we then determine whether the reasons given for withholding are sufficient to outweigh the strong public policy favoring disclosure. Id. at 821-22, 429 N.W.2d at 773. We conclude both that the villages made a sufficient showing of specificity and that those specific reasons are sufficient to outweigh the countervailing public policy favoring disclosure.

We first address the specificity requirement. Here, the villages issued substantially similar detailed written denials of the defendants' requests for information from the police officers' personnel files. ³ The custodians identified numerous public policy considerations supporting the denials, including the officers' privacy and reputational interests; fair, efficient and effective law enforcement; and officer safety. The custodians did not merely recite statutory references or offer unsupported legal conclusions. We hold that the reasons given for denying disclosure were sufficiently specific.

Our next inquiry, then, is whether the reasons given--although adequately specific--are sufficient to outweigh the strong public policy favoring disclosure. Id. Whether the harm to the public interest by disclosure is outweighed by the public interest in inspection is a question of law. Id. at 825, 429 N.W.2d at 775. We review questions of law ab initio. Id. at 826, 429 N.W.2d at 775. We conclude the reasons are sufficient.

The villages argue that, although this case is not governed by a "clear statutory exception," Hathaway, 116 Wis.2d at 397, 342 N.W.2d at 687, the legislature repeatedly has recognized a public policy interest in denying access to personnel files of public employees. We agree. For example, the Open Meetings Law, sec. 19.85, Stats., permits closed sessions for consideration of matters similar to those sought to be disclosed in this record request. ⁴ Significantly, the legislature has expressly provided in the Public Records Law that "[t]he exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy." Section 19.35(1)(a), Stats. (emphasis added). Furthermore, the supreme court has recognized that protecting the reputations of individuals is a public policy interest and has concluded that "the legislative policy expressed in [the Open Meetings Law] 'carries over to the field of inspection of public records and documents.' " Newspapers, Inc. v. Breier,...