Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls

• Decision Date: 09 April 1996
• Docket Number: No. 95-0184,95-0184
• Citation: 199 Wis.2d 768,546 N.W.2d 143
• Parties: , 108 Ed. Law Rep. 922, 24 Media L. Rep. 2160 WISCONSIN NEWSPRESS, INC., Sandra Kimball, Press Publishing Company and Robert Schumacher, Plaintiffs-Appellants, v. SCHOOL DISTRICT OF SHEBOYGAN FALLS and Robert J. Englander, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 143

546 N.W.2d 143

199 Wis.2d 768, 108 Ed. Law Rep. 922,

24 Media L. Rep. 2160

WISCONSIN NEWSPRESS, INC., Sandra Kimball, Press Publishing Company and Robert Schumacher, Plaintiffs-Appellants, v. SCHOOL DISTRICT OF SHEBOYGAN FALLS and Robert J. Englander Defendants-Respondents.

No. 95-0184.

Supreme Court of Wisconsin.

Argued Jan. 10, 1996.

Decided April 9, 1996.

Appeal from the Circuit Court, Sheboygan County; John B. Murphy, Judge.

For the plaintiffs-appellants there were sealed briefs (in the court of appeals) by Robert J. Dreps, Linda M. Clifford, James A. Friedman and LaFollette & Sinykin, Madison and oral argument by Robert J. Dreps.

For the defendants-respondents there was a sealed brief (in the court of appeals) by Pamela A. Johnson, Philip C. Reid and Cook & Franke, S.C., Milwaukee and oral argument by Pamela A. Johnson.

DAY, Chief Justice.

This case is before the court on a petition to bypass the court of appeals, pursuant to Wis.Stat. § (Rule) 809.60 (1993-94). The plaintiffs-appellants Wisconsin Newspress, Inc., and Press Publishing Co. (collectively, Newspapers) seek review of a summary judgment denying the Newspapers' request under the open records law, Wis.Stat. §§ 19.31-.37 (1993-94), to release two records of the School District of Sheboygan Falls (District) involving a disciplinary action against a school district administrator. The issue in this case is whether all disciplinary or personnel records of public employees are exempted from the open records law. We conclude that they are not, and reverse the circuit court's denial of the open records request on this issue. We also conclude, however, that one of the records at issue in this case falls within the attorney-client privilege and we thus affirm the circuit court's judgment denying the release of that record.

During February and March of 1994, the editors of the Newspapers submitted open records law requests to the District, asking for records relating to any disciplinary actions taken against the District's administrator, Norman Frakes. The District released the minutes of several closed meetings of the Board of Education of the School District of Sheboygan Falls, but refused to release any other documents at that time. The District listed nine reasons for its refusal to release the other documents, and claimed that release "would result in disclosure of privileged, confidential personnel information."

The Newspapers then filed suit in the Circuit Court for Sheboygan County, seeking disclosure of the documents. The circuit court denied their requests, ruling that this court's decision in Armada Broadcasting, Inc. v. Stirn, 183 Wis.2d 463, 516 N.W.2d 357 (1994), created an exception to the open records law for public employee disciplinary records. Since the circuit court's judgment, Mr. Frakes has resigned from his position and taken a new job in another school district.

The first issue we are to resolve is whether our decision in Armada exempted public employee disciplinary or personnel records from disclosure under the open records law. This presents a question of law which we review without deference to the circuit court's determination. Teigen v. Jelco of Wis., Inc., 124 Wis.2d 1, 5, 367 N.W.2d 806 (1985).

This court has long recognized that the open records law "reflects the common law principles favoring access to public records." Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis.2d 142, 155, 469 N.W.2d 638 (1991). The "Declaration of policy" for the open records law states:

In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all 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. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employes whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 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.

Wis.Stat. § 19.31. This court has noted:

[T]he general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, or unless there is an overriding public interest in keeping the public record confidential.

Hathaway v. Green Bay Sch. Dist., 116 Wis.2d 388, 397, 342 N.W.2d 682 (1984); see also State ex rel. Richards v. Foust, 165 Wis.2d 429, 433, 477 N.W.2d 608 (1991).

The question posed in this case is whether public employee disciplinary or personnel records are exempted from the general presumption of disclosure. The circuit court ruled that they were, relying on the following language from this court's decision in Armada:

[S]everal sections of the Wisconsin statutes evince a specific legislative policy of protecting privacy and confidentiality in employee disciplinary actions. For example, secs. 19.35(1) and 19.85(1)(b), (c), and (f) except from the open records and open meetings laws records or meetings dealing with disciplinary actions against employees.

Armada, 183 Wis.2d at 474, 516 N.W.2d 357. Section 19.35(1) of the Wisconsin Statutes provides:

(1) RIGHT TO INSPECTION. (a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.

Wis.Stat. § 19.35(1) (1993-94). The cross-referenced section, § 19.85, provides that governmental bodies may meet in closed session when:

(b) Considering dismissal, demotion, licensing or discipline of any public employe ... or the investigation of charges against such person....

(c) Considering employment, promotion, compensation or performance evaluation data of any public employe over which the governmental body has jurisdiction or exercises responsibility.

....

(f) Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations.

Wis.Stat. § 19.85(1) (1993-94).

Interpreting a version of the open records and open meetings laws enacted prior to the present §§ 19.35(1)(a) and 19.85(1), this court had described the "balancing test" which a record custodian must undertake in deciding whether to release a record:

We determine that this legislative policy of not disclosing data which may unduly damage reputations carries over to the field of inspection of public records and documents. The statutory word "unduly" is significant. As applied to inspection it does not bar all inspection of public records and documents that might damage reputations, but requires a balancing of the interest of the public to be informed on public matters against the harm to reputations which would likely result from permitting inspection.

State ex rel. Youmans v. Owens, 28 Wis.2d 672, 685, 137 N.W.2d 470 (1965); see also Wisconsin State Journal v. University of Wisconsin-Platteville, 160 Wis.2d 31, 40-41 n. 3, 465 N.W.2d 266 (Ct.App.1990) (applying Youmans ) [hereinafter UW-Platteville ]. Cases of both this court and the court of appeals have applied this balancing test, now incorporated in § 19.35(1), in determining when records should be released under the open records law. See, e.g., Newspapers, Inc., v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179 (1979) (balancing test involves determination "whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection."); Mayfair Chrysler-Plymouth, 162 Wis.2d at 164-65, 469 N.W.2d 638; Journal/Sentinel, Inc., v. School Bd. of the School District of Shorewood, 186 Wis.2d 443, 457, 521 N.W.2d 165 (Ct.App.1994) [hereinafter Shorewood ].

Courts have also applied the balancing test to personnel records. In one such case, UW-Platteville, 160 Wis.2d at 36-42, 465 N.W.2d 266, the court of appeals balanced the public policy expressed in § 19.31, which presumes openness and disclosure, against the public policy expressed in § 19.85, which recognizes that the release of certain personnel records, such as disciplinary records, could cause harm to the public or to employees. After concluding that certain meetings at issue in the case had been properly closed under § 19.85(1)(f) because they discussed personnel and disciplinary matters, the court stated, "[t]his conclusion, however, does not end our inquiry. It does not follow that, simply because meetings were properly closed under sec. 19.85(1)(f), Stats., documents compiled in conjunction with those meetings are exempt from disclosure under sec. 19.35(1)." Id. at 38, 465 N.W.2d 266.

The method of analysis applied in UW-Platteville is consistent with a common-sense reading of the open records and open meetings laws. The plain language...