Wisconsin Freedom of Information Council

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Home Your Right to Know columns 2004 November: Court ruling a victory for openness

November: Court ruling a victory for openness

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On Oct. 7, the Wisconsin Court of Appeals sided with The Janesville Gazette in the court’s first-ever application of the recent "Woznicki" amendments to the state's Open Records Law.

Those amendments, enacted in August 2003, were intended to define and limit the procedural rights created by the Wisconsin Supreme Court for record subjects in Woznicki v. Erickson.

The appeals court case involved the newspaper’s request for access to investigation reports concerning 13 Rock County Sheriff’s Department employees who were disciplined for “using department computers to view inappropriate Internet images.” The department fired three correctional officers and otherwise disciplined 10 others accused of viewing pornography on department computers, according to court documents.

When the newspaper asked for the disciplinary reports, the sheriff applied the required balancing test, weighing the public's right to know against any harm that could come from disclosure. The sheriff concluded that the reports should be made public after the employee names and identifying information were redacted.

However, the affected employees challenged this decision through their union, because grievances over the discipline imposed remained pending. The employees’ argument was based on the statutory exemption for records of a “current investigation” of possible employee misconduct “prior to disposition of the investigation,” under section 19.36(10(b) of the Open Records Law.

Rock County Judge James Welker denied the employees’ request for an injunction, and the union appealed.

The Court of Appeals agreed with the newspaper's interpretation that the “investigation” referenced in the statute “includes only that conducted by the public authority itself as a prelude to possible employee disciplinary action.”

According to the court, “disposition” occurs when the authority imposes discipline, regardless of any pending grievance arbitration or other review mechanism available to the employee. Accepting the employees’ argument, the court said, “would permit the employee to create prolonged delays in the release of the requested records.”

The newspaper did not challenge the sheriff’s decision to redact identifying information before releasing the investigation records, so that issue was not addressed by the Court of Appeals. But the court did recognize that the Woznicki amendments reflect “a legislative intent that public records be promptly disclosed to a requester, even if their release is challenged by an employee.” And that change in judicial attitude is precisely what the statutory changes were intended to accomplish.

Scott Angus, editor of the Janesville Gazette, is pleased with the appeals court decision.

“It's unfortunate that the legal proceedings have delayed [the records’] release for so long,” said Angus. “We remain committed to getting the records because the public has a right to see them and because of the unacceptable precedent that would be set if the records were kept from public view.”

Bob Dreps is an attorney with LaFollette Godfrey & Kahn. Sid Schwartz of The Janesville Gazette contributed to this report. Your Right to Know is a monthly column from the Wisconsin Freedom of Information Council, devoted to protecting public access to meetings and records.