73 Op. Att'y Gen. 20 (1984)
 
73 OAG 20  21  22  23  24

OPINION NO. OAG 5-84,

Wisconsin Attorney General Opinions

16 January 1984

EMPLOYER AND EMPLOYE; LABOR; PUBLIC RECORDS;

Public records relating to employe grievances
are not generally exempt from disclosure
under the public records law, and
nondisclosure must be justified
on a case-by-case basis.

KEITH R. ZEHMS,
Corporation Counsel Eau Claire County

You have requested my opinion as to whether
records relating to labor grievances of
Eau Claire County employes are accessible
under the state public records law in
subchapter II of chapter 19, Stats.

Apparently the records are kept by the
county's personnel director.

Therefore, they are "records" kept by
an "authority" as those terms are
defined in section 19.32.

As such, there is "a presumption of complete
public access . . ." since "denial of public
access generally is contrary to the public
interest, and only in an exceptional
case may access be denied."

Section 19.31, Stats.

Section 19.35(1)(a) states:

19.35(1)Access to records; fees.

RIGHT TO INSPECTION.

19.35(1)(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 Section 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 Section 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.

This provision recognizes three possible
bases for denying access to public records:

(1)  express statutory exemptions;

(2)  exemptions under the open meetings law
     if the requisite demonstration is made;

     and

(3)  common law principles.

 
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The crux of the common law on public records
is the "balancing test" which provides that
the custodian "must balance the harm to the
public interest from public examination of
the records against the benefit to the
public interest from opening these records
to examination, giving much weight to the
beneficial public interest in open public
records."

State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539, 553,
334 N.W.2d 252 (1983).

Express statutory exemptions to the public
records law are contemplated further in
section 19.36(1), which reads as follows:

Limitations upon access and withholding.

19.36(1) APPLICATION OF OTHER LAWS.

     Any record which is specifically
     exempted from disclosure by state or
     federal law or authorized to be exempted
     from disclosure by state law is exempt
     from disclosure under Section 19.35(1),
     except that any portion of that record
     which contains public information is
     open to public inspection as provided
     in subsection 19.35(6).

An example of an express statutory
exemption is section 146.82 which makes
patient health care records confidential.

Another example is the confidentiality of
pupil records under section 118.125.

In specific areas such as these, the
Legislature has determined as a matter of
public policy that the interests protected
by confidentiality generally outweigh the
interests that favor access to public
records.

Where such a statute exists, the inquiry
usually need go no farther.

I have found no statute that expressly makes
labor grievance records confidential.

As to exemptions under the open meetings law,
you point out correctly that section
19.85(1)(a), (b), (c) and (f) indicates some
legislative sensitivity to personnel matters.

However, their scope is limited to such
serious matters as those involving the
investigation or discipline of a public
employe or those where the information
involved

     "would be likely to have a substantial
      adverse effect upon the reputation of
      . . . . the person referred to . . ."

if made public.

I assume that relatively few grievances
initiated by employes or their union
representatives fall within these categories.

For example, it seems unlikely that
complaints about working conditions would
fall within the purview of any of the cited
exemptions in the open meetings law.

Certainly it cannot be said that the
substance of all grievances would
fall within such exemptions.

 
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Moreover, just because a subject falls
within the purview of an exemption to the
open meetings law does not necessarily mean
that a meeting to discuss that subject must
be closed.

Whether to go into a closed session based on
any one of the exemption provisions is a
discretionary matter for the governmental
body, because section 19.85(1) merely states
that "a closed session may be held for
any of the following purposes."

The fact that the exemption provisions may
justify, but do not compel, a closed meeting
is reflected in that part of section
19.35(1)(a), which reads as follows:

     The exemptions to the requirement of a
     governmental body to meet in open
     session under Section 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 Section 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.

The statute recognizes that in the exemption
provisions the Legislature has identified
categories of sensitive information, but the
Legislature has not mandated that all such
information be withheld all the time. In my
opinion the exemptions under section 19.85
may not be used as the basis for general
blanket exceptions under the
public records law.

When exemptions to the open meetings law are
relied on, section 19.35(1)(a) requires a
case-by-case determination with respect to
each request as of the time of the request.

Any blanket custodial policy would be
contrary to this requirement.

66 Op. Att'y Gen. 302, 306 (1977).

Likewise, it is my opinion that the common
law balancing test must be applied by the
custodian on a case-by-case basis.

63 Op. Att'y Gen. 400, 401 (1974).

As part of your request you advocate the
position that the blanket confidentiality of
grievance records is necessarily implied by
section 19.82(1), which reads as follows:

     "Governmental body" means a state or
     local agency, board, commission,
     committee, council, department or
     public body corporate and politic
     created by constitution, statute,
     ordinance, rule or order; a governmental
     or quasi-governmental corporation; or a
     formally constituted subunit of any of
     the foregoing, but excludes any such
     body or committee or subunit of such
     body which is formed for or meeting
     for the purpose of collective bargaining
     under Subchapter IV or V of Chapter 111.

 
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You note that grievance procedures
are considered to be an aspect of
collective bargaining.

Section 111.70(1)(d), Stats.;
67 Op. Att'y Gen. 276 (1978).

You conclude that "since the treatment of
grievances is exempt from the Open Meeting
Law and the documentation of grievances is an
integral part of the grievance procedure it
follows that such documentation should be
exempt from the Public Records Law."

Your reasoning and reliance on section
19.82(1) has some appeal, but I cannot
embrace the breadth of your conclusion.

First, you would imply a blanket categorical
exception to the public records law when the
law itself states it will accommodate only
specific statutory exemptions.

Section 19.36(1), Stats.

Secondly, the exception of collective
bargaining meetings from the open meetings
law under section 19.82(1) is not as
extensive as the exception to the
public records law you would imply.

Section 19.85(3) requires that the "final
ratification or approval of a collective
bargaining agreement . . ." be
conducted in open session.

Also, the exception in section 19.82(1)
applies only to "governmental bodies."

It would not apply to those steps in the
grievance procedure which involve public
employes and officials who do not
constitute a "governmental body"
as defined in section 19.82(1).

In my opinion the exception of collective
bargaining meetings from the open meetings
law under section 19.82(1) should be treated
as the other exemptions under section 19.85
for the purpose of applying the public
records law.

Therefore, pursuant to section 19.35(1),
the fact that collective bargaining meetings
of governmental bodies are not subject to the
open meetings law may be taken as an
expression of public policy on the subject,
but in order to deny access to the records
involved the custodian must make "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."

BCL:RWL


 
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