Woznicki v. Erickson
| Decision Date | 25 June 1996 |
| Docket Number | No. 94-2795,94-2795 |
| Parties | , 110 Ed. Law Rep. 815 Thomas J. WOZNICKI, Plaintiff-Appellant, v. Dennis W. ERICKSON, Assistant District Attorney, Defendant-Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner the cause was argued by Alan Lee, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.
For the plaintiff-appellant there was a brief by Melissa A. Cherney, Chris Galinat and Wisconsin Education Association Council, Madison and oral argument by Melissa A. Cherney.
Amicus curiae brief was filed by Jeffrey J. Kassel and LaFollette & Sinykin, Madison for the Wisconsin Newspaper Association and Wisconsin Freedom of Information Council.
Dennis W. Erickson, an Assistant District Attorney for St. Croix County (District Attorney), seeks review of a published decision of the court of appeals holding that public employee personnel records are exempted from the open records law. The court of appeals further held that Thomas J. Woznicki's (Woznicki) private telephone records, which are being held by the District Attorney, are not public records within the meaning of the open records law. We conclude that the open records law does not provide a blanket exemption for public employee personnel records or Woznicki's telephone records. These records are, therefore, open to the public unless there is an overriding public interest in keeping the records confidential. We further recognize the reputational and privacy interests that are inherent in such records, and hold that because of special public policy reasons that are raised when a district attorney chooses to release materials gathered during the course of a criminal investigation, the district attorney's decision to release these records is subject to de novo review by the circuit court. Accordingly, we reverse the court of appeals.
The facts are undisputed. In April 1994, Woznicki was charged with having consensual sex with a minor over the age of sixteen in violation of Wis.Stat. § 948.09 (1993-94). 1 A criminal investigation ensued, during which the St. Croix County District Attorney's office subpoenaed Woznicki's complete personnel file from his employer, the New Richmond School District, and Woznicki's personal telephone records.
In July 1994, the District Attorney dismissed the case against Woznicki. Subsequently, Woznicki moved the circuit court for an order prohibiting the District Attorney from releasing his personnel and telephone records. The circuit court denied this motion based on the premise that as custodian of the records, the District Attorney had sole discretion to decide whether to release them.
The District Attorney notified Woznicki that there had been two requests for his file. One of the requests was from Woznicki's employer and the other request was from the father of the complainant. The District Attorney informed Woznicki that he intended to release the records to the two requesters.
Consequently, Woznicki moved the circuit court for a temporary injunction prohibiting the District Attorney from releasing his personnel and telephone records. The circuit court denied the motion for a temporary injunction, but ordered that if Woznicki filed an appeal, the District Attorney would be enjoined from releasing the records until the issue was resolved. Woznicki appealed the circuit court's decision denying his motion for a temporary injunction.
The court of appeals interpreted the open records law to restrict public access to personnel records of public employees. The court created a categorical exemption from disclosure for all public employee personnel records. The decision of the court of appeals also narrowed the definition of a "record" subject to the open records law by excluding Woznicki's telephone records in the custody of the District Attorney, reasoning that they were private records created by a private entity. The court of appeals therefore reversed the circuit court's order and remanded the matter with directions to grant Woznicki's motion for an injunction prohibiting the District Attorney from disclosing Woznicki's personnel and telephone records. The District Attorney now seeks review.
The case presents the following issues. First, whether personnel records are exempt from disclosure under the open records law. Second, whether Woznicki's telephone records are exempt from disclosure under the open records law. Third, if either or both are not exempt, whether the District Attorney's decision to release them is subject to judicial review. The application of a statute to an undisputed set of facts presents a question of law which we review de novo. Village of Butler v. Cohen, 163 Wis.2d 819, 825, 472 N.W.2d 579 (Ct.App.1991).
The first issue is easily answered. In Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis.2d 769, 546 N.W.2d 143 (1996), this court held that no blanket exception exists under the open records law for public employee disciplinary or personnel records. Id. at 769, 546 N.W.2d 143. Instead, "the balancing test must be applied in every case in order to determine whether a particular record should be released, and there are not blanket exceptions other than those provided by the common law or statute." Id. at 781, 546 N.W.2d 143. For the reasons articulated in Newspress, we conclude that Woznicki's personnel records are not exempt from disclosure under the public records law. They are subject to the balancing test to determine whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection. Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427, 279 N.W.2d 179 (1979).
The second issue is whether Woznicki's telephone records are exempt from the open records law. Despite the private nature of Woznicki's telephone bills, the telephone records in this case fall within the statutory definition of a public record. Wisconsin Stat. § 19.32(2) defines "records" as "any material on which ... information is recorded or preserved ... [or] created or is being kept by an authority." Wisconsin Stat. § 19.32(1) defines "authority" as a "state or local office, elected official, agency [or] board" who has "custody of a record." There is no question that the District Attorney constitutes a proper authority under the clear meaning of the statute. Therefore, Woznicki's telephone records are not exempt from the open records law when they are held by the District Attorney. The records are subject to the balancing test as stated above.
Having decided that Woznicki's personnel and telephone records are not exempt from the open records law, we address the final issue: whether the District Attorney's decision to release them is subject to judicial review.
The District Attorney argues that the law does not provide a cause of action for anyone seeking to deny access to his or her records, only for one seeking to compel disclosure. If an authority refuses to release a record, the requester may seek a writ of mandamus to compel release under Wis.Stat. § 19.37(1). 2 The District Attorney asserts that there is no parallel action through which an individual may seek to compel the custodian to deny access to public records.
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. The statutes and case law have consistently recognized the legitimacy of the interests of citizens to privacy and the protection of their reputations. Woznicki's interests in privacy and reputation would be meaningless unless the District Attorney's decision to release the records is reviewable by a circuit court. The fact that the open records law does not create a separate cause of action does not mean that Woznicki is without redress. For the reasons stated below, we conclude that the District Attorney's decision to release Woznicki's records is subject to de novo review by the circuit court.
Several sections of the Wisconsin statutes evince a specific legislative intent to protect privacy and reputation. There is a general right to privacy under Wis.Stat. § 895.50. 3 The open records law recognizes that the exceptions to the companion open meetings law are indicative of public policy on the issue of the disclosure of public employee personnel files. See Wis.Stat. § 19.35(1)(a). Wisconsin Stat. § 19.85(1) provides that governmental meetings may be closed for certain purposes involving privacy and reputational concerns:
19.85 Exemptions. (1) ... A closed session may be held for any of the following purposes:
. . . . .
(b) Considering dismissal, demotion, licensing or discipline of any public employe or person licensed by a board or commission or the investigation of charges against such person, or considering the grant or denial of tenure for a university faculty member, and the taking of formal action on any such matter; ....
. . . . .
(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.
It is significant to note that Wisconsin Stat. § 103.13(6) 4 gives...
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