74 Op. Att'y Gen. 156 (1985)
 
74 OAG 156  157  158  159  160

OPINION NO. OAG 29-85,

Wisconsin Attorney General Opinions

2 August 1985

Employer And Employe;
Physicians And Surgeons;
Public Records;

The final decision of a quasi-judicial body
regarding disciplinary action against a
physician in the unclassified service is
properly deemed available under the public
records law.

JUDITH A. TEMBY, Secretary Board of Regents

On behalf of the Board of Regents, you ask
whether the final decision and order of the
Council of Trustees of the University of
Wisconsin Hospital and Clinics regarding
disciplinary action taken against a physician
on the active medical staff is accessible
under the public records law,
section 19.31, Stats., et seq.

 
74 OAG 156  157  158  159  160

You state that the Council of Trustees was
created by the Board of Regents to govern
the University Hospital and Clinics.

In the instant matter, the Council of
Trustees acted as the decision-maker of last
resort in disciplinary proceedings against a
physician on the active medical staff.

The physician is an unclassified employe.

All proceedings have been conducted in closed
session pursuant to section 19.85(1)(b) and
bylaws of the medical staff.

You ask whether the Council of Trustees'
final decision is accessible to the public
under the public records law.

You have assumed that the requested documents
are "records" within the definition in
section 19.32(2), and the Council of Trustees
falls within the definition of an "authority"
under section 19.32(1).

Therefore, there is a presumption in favor of
public access and only in extraordinary cases
may access be denied.

Sec. 19.31, Stats.

The analysis begins with section 19.35(1)(a).
which reads:

Access to records; fees.

19.35(1) 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.

As stated in
73 Op. Att'y Gen. 20-21 (1984):

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.

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).

 
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As to the first possible basis, I am not
aware of any express statutory exemption
that applies to the situation you pose.

As to the second, pertinent exemptions under
section 19.85 authorize closed sessions for
the following purposes:

19.85(1)(a)
Deliberating concerning a case which was
the subject of any judicial or quasi-judicial
trial or hearing before that
governmental body.

19.85(1)(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;
provided that the faculty member or other
public employe or person licensed is given
actual notice of any evidentiary hearing
which may be held prior to final action
being taken and of any meeting at which
final action may be taken.

The notice shall contain a statement that
the person has the right to demand that
the evidentiary hearing or meeting
be held in open session.

This paragraph and paragraph 19.85(1)(f) do
not apply to any such evidentiary hearing or
meeting where the employe or person licensed
requests that an open session be held.

19.85(1)(c)
Considering employment, promotion,
compensation or performance
evaluation data of any public
employe over which the governmental
body has Jurisdiction or exercises
responsibility. . . .

19.85(1)(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 paragraph 19.85(1)(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.

 
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The relationship between section 19.35(1)(a)
and the exemptions to the open meetings
law is as follows:

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.

73 Op. Att'y Gen. at 22.

In accord,
73 Op. Att'y Gen. 26, 28 (1984) and
66 Op. Att'y Gen. 302, 306 (1977).

With the burden of decision-making comes the
power to exercise discretion.

The legislature has provided that the
governmental unit, not the individual, has
the power to open or close meetings and it is
the legal custodian of the record, not the
citizen, who has the right to have the record
closed if the custodian makes a specific
demonstration that there is a need to
restrict public access at the time
the request to inspect is made.

State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539, 558,
334 N.W.2d 252 (1983).

You state that the attorney for the physician
points to section 230.13 as a basis for
keeping records of disciplinary
actions confidential.

That statute does authorize the state
Department of Employment Relations to keep
closed records pertaining to "disciplinary
actions." Sec. 230.13(5), Stats.

However, as a matter of express authority,
the authority under section 230.13 is given
only to the secretary of the Department of
Employment Relations and the administrator
of the Division of Merit Recruitment
and Selection.

I am advised by their offices that their
custodial jurisdiction over personnel files
extends only to employes in the classified
service and not to any employes in the
unclassified service.

Their jurisdiction would not extend to
faculty who are in the unclassified service.
Sec. 230.08(2)(d), Stats.

Thus, neither would their discretionary
authority under section 230.13 extend to
personnel records of employes in the
unclassified service.

It may be argued that even if section 230.13
does not technically apply to persons in the
unclassified service, the statute does
express a legislative sensitivity to certain
types of state personnel records and that
sensitivity should extend to records of
those in the unclassified service.

 
74 OAG 156  157  158  159  160

But even if that were so, the authority
under section 230.13 is discretionary.

As with the exemptions to the open meetings
law, I would expect the court to find this
to be a matter of custodial discretion,
not a personal right on the side
of the individual involved.

Bilder, 112 Wis.2d at 558.

Finally, it may very well be that the
possible limitation on access to Department
of Employment Relations records under section
230.13 would not affect access to the
proceedings before and decision of
a separate quasi-judicial body.

This is certainly the case with respect to
disciplinary matters that come before
the state Personnel Commission.

Although the commission will honor a request
to keep a hearing closed, under section
230.44(4)(a) the commission's decision
and the transcript of proceedings are
open to the public by virtue of section
230.45(1)(h) and section PL 6.04(4)(b)
and PL 6.04(4)(c) Wis. Adm. Code.

In your letter you state that the Board of
Regents has

    "preliminarily concluded that the Final
     Decision and Order in the case before
     the Council of Trustees should be
     accessible to the public."

Given the statutory presumption in favor of
access to public records, and the
discretionary nature of granting
an exception, it is my opinion
that a court would sustain
your decision.

BCL: RWL
 
74 OAG 156  157  158  159  160