Wisconsin Freedom of Information Council

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Home Your Right to Know columns 2004 June: Hotline helps media gain access

June: Hotline helps media gain access

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News reporters, editors and producers rely on Wisconsin's open records and open meetings laws to obtain information. This is not always an easy task, as the laws do not address every public-access question that newsrooms encounter. For this reason, the Wisconsin Newspaper Association and Wisconsin Broadcasters Association have teamed up to provide their members with a valuable resource: a media hotline, staffed by myself and other attorneys.

Our phone rings daily with questions from reporters about public access to the meetings and records. (The hotline is not available to the general public, but the relevant state statutes and other information are posted on the Wisconsin Freedom of Information Council website, www.wisfoic.org.)

Frequently, we answer questions about the ability of a governing body to go into a "closed" session (often called "executive" session) to discuss matters outside the public's presence.

The general presumption in Wisconsin is that a governmental body must meet in open session. But the law provides several exemptions to that rule in Wisconsin Statute §19.85. The governmental body must do three things: provide advance notice that it may go into closed session, entertain a motion to go into closed session, and clearly identify which exemption permits it to do so.

One of the most frequently discussed exemptions is §19.85(1)(c), which allows the body to go into a closed session to consider "employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility."

Significantly, this exemption applies only to discussions of the listed matters about a specific employee. It does not allow a governmental body to go into closed session to discuss general personnel matters -- for example, how it wants to restructure a department or eliminate or change a certain position.

The open records questions we receive on the media hotline vary greatly. This is largely because the open records law, unlike the open meetings law with its narrow list of exemptions, does not specify which records are available to the public and which are not.

Under this law, it is presumed that the public may inspect and copy any public record. That presumption can be overcome, however, by a statutory or common law exemption, or where the records custodian weighs the competing interests involved and determines that permitting public inspection would result in harm to the public interest that outweighs the recognized public interest in releasing the record.

In short, to deny access under this "balancing test," a custodian must determine that there is an "overriding public interest" in keeping the record confidential.

Due to the individualized nature of the "balancing test," each inquiry under the open records law can present unique challenges. The procedures for requesting a public record, however, are well established.

The open records law provides that requests can be made orally or in writing. A written request has its advantages, though, and we frequently advise media hotline callers to put their requests in writing. The custodian of the governmental body must respond in writing to all written requests.

Furthermore, if the custodian denies the request, he or she must state reasons for the denial. This is significant because a court reviewing the custodian's denial may consider only reasons stated in this written response. The governmental body cannot later assert additional justifications for denying a request.

The most frequently asked open records questions, by far, concern access to disciplinary records of public employees. This is because the open records law has no bright-line rule on access to these records, leaving custodians uncertain about how to strike the proper balance of interests.

A recent amendment to the statute provides more guidance, by specifying that information relating to an ongoing investigation of possible employee misconduct may not be released. But once the investigation is concluded, we believe the presumption of public access should prevail under the balancing test.

After all, our courts have long recognized that "the main purpose of the public records law is to enable the citizenry to monitor and evaluate the performance of public officials and employees."

Your Right to Know is a monthly column produced by the Wisconsin Freedom of Information Council, devoted to protecting public access to meetings and records. Jennifer Peterson is an attorney at LaFollette Godfrey & Kahn.