Wisconsin State Journal v. University of Wisconsin-Platteville

• Decision Date: 27 December 1990
• Docket Number: WISCONSIN-PLATTEVILLE,No. 90-0214,90-0214
• Citation: 465 N.W.2d 266,160 Wis.2d 31
• Parties: , 65 Ed. Law Rep. 534, 18 Media L. Rep. 1872 WISCONSIN STATE JOURNAL, and Terry Shelton, Plaintiffs-Respondents, v. UNIVERSITY OF, and William Chmurny, Defendants-Appellants.
• Court: Wisconsin Court of Appeals

Page 266

465 N.W.2d 266

160 Wis.2d 31, 65 Ed. Law Rep. 534,

18 Media L. Rep. 1872

WISCONSIN STATE JOURNAL, and Terry Shelton, Plaintiffs-Respondents, v. UNIVERSITY OF WISCONSIN-PLATTEVILLE, and William Chmurny,

Defendants-Appellants.

No. 90-0214.

Court of Appeals of Wisconsin.

Submitted on Briefs June 6, 1990.

Opinion Released Dec. 27, 1990.

Opinion Filed Dec. 27, 1990.

Donald J. Hanaway, Atty. Gen., and Robert W. Larsen, Asst. Atty. Gen., for defendants-appellants.

Michael P. May and Mark J. Steichen of Boardman, Suhr, Curry & Field, Madison, for plaintiffs-respondents.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

This is a mandamus action commenced under the Wisconsin public records law, secs. 19.31-19.39, Stats. The University of Wisconsin--Platteville and William Chmurny (defendants) appeal a trial court judgment granting a writ of mandamus compelling them to allow the Wisconsin State Journal and Terry Shelton (plaintiffs) access to documents compiled in a faculty investigation. The trial court concluded that the records custodian had not stated with sufficient specificity his reasons for denying the plaintiffs access.

We conclude the custodian stated his reasons for denial of access with the requisite specificity. We conclude, however, that the public interest in openness and full public disclosure outweighs the harm to reputation that may result from disclosure of the documents. Therefore, we affirm the trial court's judgment.

Defendants contend the trial court abused its discretion by refusing to join as parties the subjects of the investigation. Because defendants have not established the subjects of the investigation are necessary parties under sec. 803.03(1), Stats., we affirm the trial court's order denying joinder.

BACKGROUND

In April of 1989, two faculty members sent a letter to the Institutional Ethics Committee of the University of Wisconsin--Platteville, alleging that Dean Kahtan Al Yasiri had used his influence to secure preferential treatment for his wife, Ann Al Yasiri, also a professor, in violation of the state administrative code. In May of 1989, the authors of the letter, along with a third faculty member, wrote to William Chmurny, Chancellor of UW-Platteville, requesting that he pursue their complaint. Chmurny appointed Dr. Dallas Peterson, Associate Vice-President for Academic Affairs in the UW system, to investigate the complaint. Peterson prepared a report, detailing his investigation and concluding that no evidence supported the allegations against Al Yasiri. As a result of the report After the report had been completed, plaintiffs requested copies of the initial complaint, supplementary pleadings and "any other copies of papers concerning the investigation." In June of 1989, Chmurny denied the request, explaining:

Chmurny found that the charges against Al Yasiri were without foundation.

We respectfully decline your request since these documents are an integral part of an investigation of charges against a specific person, which I have found to be without foundation, and if discussed in public would be likely to have a substantial adverse effect upon the reputation of such person. My denial of your request is on advice of counsel and pursuant to s. 19.85(1)(f), Wis.Stats.

Plaintiffs then commenced this action to compel Chmurny to provide access to the requested documents. Defendants sought an order of joinder of the Al Yasiris as parties to the action.

After a hearing, the trial court denied defendants' motion to join the Al Yasiris. The court then allowed plaintiffs' counsel to view the investigatory file, viewed the file in camera, and heard arguments. The trial court concluded that Chmurny's explanation failed to state with sufficient specificity why the documents should be exempt from disclosure and therefore granted mandamus. Defendants appeal.

STANDARD OF REVIEW

This case involves the application of sec. 19.35, Stats., to an undisputed set of facts. The application of a statute to a particular set of facts presents a question of law. Oshkosh Northwestern Co. v. Oshkosh Library Bd., 125 Wis.2d 480, 485, 373 N.W.2d 459, 462 (Ct.App.1985). As such, we are not bound by the trial court's conclusions and review the matter de novo. First Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).

PUBLIC RECORDS LAW

Defendants concede that the documents compiled in the investigation are "public records." Public records are generally open to public inspection. See sec. 19.35, Stats. There is a legislatively presumed interest in exposure of public records to full public scrutiny. Milwaukee Journal v. Call, 153 Wis.2d 313, 322, 450 N.W.2d 515, 518 (Ct.App.1989). Section 19.31, Stats., states in part:

[I]t 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.... To that end, ss. 1932 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. [Emphasis added.]

However, sec. 19.35(1)(a), Stats., provides in part:

The exemptions to the requirements 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. [Emphasis added.] ¹

Section 19.85(1)(f), Stats., authorizes closed meeings for

Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration We begin our analysis by examining whether the meetings held pursuant to the investigation of Al Yasiri were properly closed under sec. 19.85(1)(f), Stats. The meetings were held as a result of allegations that a faculty member had violated that state administrative code. As such, the meetings were an "investigation of charges against [a] specific person[ ]." Sec. 19.85(1)(f).

of specifc 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 [160 Wis.2d 38] adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations.

The specific allegation, nepotism in violation of the state administrative code, if discussed in public, would have a substantial adverse effect on Al Yasiri's reputation. We conclude the trial court properly found that meetings held pursuant to the investigation could be convened in closed session under sec. 19.85(1)(f), Stats.

This 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). Rather, sec. 19.35(1) contemplates:

[M]ore than a mere recognition of the statute under which the meeting was closed and an assertion that the reasons for closure still exist and serve as a basis to deny public inspection. The custodian must state specific public policy reasons for the refusal.

Oshkosh Northwestern Co., 125 Wis.2d at 485, 373 N.W.2d at 462.

A party resisting inspection of public records must state with sufficient specificity a 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). The specificity requirement is not met by a mere citation to the exemption statute nor by a bald assertion that the release is not in the public interest. Id. at 823, 429 N.W.2d at 774. On review, we determine whether the custodian's reasons for denial were stated with the requisite specificity and, if so, whether the public interest in confidentiality outweighs the strong public policy favoring disclosure. See Milwaukee Journal, 153 Wis.2d at 317, 450 N.W.2d at 516.

Citing sec. 19.85(1)(f), Stats., the custodian stated that if the documents were discussed in public, they would "be likely to have a substantial adverse effect upon the reputation of [Al Yasiri]."

To demand that the custodian provide additional justification for his denial would also require that he divulge the reasons that the documents would have a substantial adverse effect on Al Yasiri's reputation. This would require detailing the contents of the documents sought to be protected from disclosure. This requirement would eliminate the protection afforded the documents by virtue of being exempted from the public records law. We conclude the custodian's letter of denial states with sufficient specificity the reasons for denial. ²

Because we conclude that the custodian stated the reasons for nondisclosure Referring to sec. 14.90(3)(e), Stats. (1963), a predecessor of sec. 19.85(1)(f), Stats., the court in Youmans stated:

with sufficient specificity, we must decide whether the harmful effect on the public interest in disclosing the documents outweighs the public interest in inspection. Youmans, 28 Wis.2d at 681, 137 N.W.2d at 474; Rathie v. Northeastern Wisconsin Technical Inst., 142 Wis.2d 685, 690, 419 N.W.2d 296, 299 (Ct.App.1987). This is a question of law, which we independently determine. Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179, 184 (1979).

As applied to inspection [sec. 14.90(3)(e) ] 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...