ARMADA BROADCASTING, INC. v. STIRN,
177 Wis.2d 272 (Ct.App. 1993)
501 N.W.2d 889 INDEX
ARMADA BROADCASTING, INC., a Wisconsin corporation,
Robert E. STIRN, District Administrator,
School District of Wisconsin Dells,
a municipal corporation,
Richard SCHAUF, Appellant.[fn]
Court of Appeals. No. 92-3036.
Submitted on briefs March 11, 1993. Ä
Decided May 20, 1993.
[fn] Petition to review granted.
APPEAL from an order of the circuit court for
Sauk county: JAMES EVENSON, Judge.
For the appellant the cause was submitted on the
brief of Carol Grob of Cullen, Weston,
Pines & Bach of Madison.
For the plaintiff-respondent, Armada Broadcasting,
Inc., the cause was submitted on the brief of Richard
W. Cross of Cross Law Offices of Wisconsin Dells.
On behalf of the defendants-respondents,
Richard E. Stirn and School District of Wisconsin
Dells, no brief was filed.
Before Gartzke, P.J., Dykman and Sundby, JJ.
Michael Schauf is a teacher employed by the
school district of Wisconsin Dells.
He appeals from an order denying his petition to
intervene in an action brought by Armada Broadcasting
for a writ of mandamus directed to the district
and Robert Stirn, the district administrator,
under Wisconsin's Open Records Law,
Sections 19.31-19.39, Stats.
The issues are whether the appeal is moot and
Schauf has a legally protected interest
in the mandamus action.
We conclude that the issues are not moot
but Schauf lacks that interest.
We therefore affirm.
Armada sought mandamus to compel the district and Stirn
to permit Armada to inspect and copy a report to the
district and Schauf's grievance against the district.
Armada alleged that the district hired attorney Ann
Weiland to investigate complaints of sexual harassment
at the Wisconsin Dells Senior High School.
In July or August 1992, at a closed meeting of the
school board, Weiland presented a final report
of her investigation.
In late September 1992, Armada made a request under
Section 19.35, Stats., to inspect and copy Weiland's
report.[fn1] Stirn, the custodian of the district's
records, denied access to the report.
In October 1992, Armada requested that the district
provide copies of the grievances Schauf and another
employee had filed in connection with the
Stirn denied that request.
Armada asserts that because the district and Stirn have
violated Section 19.35 in various respects, Armada is
entitled to mandamus of the records it seeks.[fn2]
Schauf moved to intervene as a defendant in Armada's
mandamus action on grounds that he is a proper party
and will be prejudiced if the matter proceeds to
judgment without his participation.
He claims an interest in the action and its outcome
because disclosure of the Weiland report and his
grievance violate his right to privacy in his
personnel files and will prejudice his rights
in his pending grievance against the district.
He asserts that he has standing to intervene as a
matter of right and no party before the court can
fairly represent his interest.
He also asserts that he is a member of the Wisconsin
Education Association Council (WEAC) and relies on
WEAC's reasons in its separate motion to intervene.
WEAC claimed an interest because it represents an
association of teachers employed by the district
and the teachers have an interest in protecting
disclosure of their personnel files.
The trial court denied Schauf's motion, and by
separate order, the court denied WEAC's motion.
Schauf has appealed from the order
denying his petition.
WEAC has not appealed.
After Schauf appealed, the trial court ordered
release of parts of the Weiland report.
We stayed further proceedings in the trial court,
pending disposition of Schauf's appeal.
Our stay saves Schauf's appeal from mootness.
If he prevails on appeal, he must be given an
opportunity to be heard before the court
may release the records to Armada.
We therefore review the merits of his appeal from
the order denying his motion to intervene.
Section 803.09(1), Stats., provides that
anyone shall be permitted to intervene in an
action when the movant claims an interest
relating to the property or transaction which
is the subject of the action and the movant
is so situated that the disposition of the
action may as a practical matter impair or
impede the movant's ability to protect that
interest, unless the movant's interest is
adequately represented by existing parties.
If the elements of Section 803.09, Stats., are
satisfied, and intervention will not unduly prejudice
the adjudication of the original parties' rights,
intervention must be permitted as of right.
C.L. v. Edson,
140 Wis.2d 168, 175,
409 N.W.2d 417, 419 (Ct. App. 1987).
The person seeking to intervene must have a legally
protected interest sufficiently related to the
subject of the action to justify intervention
as a matter of right.
State ex rel. Bilder v. Township of Delavan,
112 Wis.2d 539, 547,
334 N.W.2d 252, 257 (1983).
Whether intervention must be permitted and the
sufficiency of the movant's interest are
questions of law which we decide de novo.
Id. at 549, 334 N.W.2d at 258.
Schauf lacks a legally protected interest
in closing the Weiland report and his
grievance from public access.
Unless the law otherwise provides, the custodian of a
public record decides whether to grant or deny public
access to it, subject, of course, to judicial review.
Section 19.35(1), Stats.
"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."
112 Wis.2d at 558,
334 N.W.2d at 262.
In Wisconsin State Journal v. University of
Wisconsin-Platteville, 160 Wis.2d 31, 465 N.W.2d 266
(Ct. App. 1990), a university dean and his wife desired
to intervene in a mandamus action a newspaper brought
to obtain the report of the university's investigation
regarding alleged wrongdoing by the dean and his wife.
When affirming the trial court's order denying their
intervention, we relied on Bilder for our conclusion
that the dean and his wife had "no legal interest" in
the mandamus action.
Wisconsin State Journal,
160 Wis.2d at 43,
465 N.W.2d at 271.
We also said,
"By accepting appointment as dean of a
department of a state university, [the dean]
voluntarily took a position of public
He has, for the most part, relinquished his
right to keep confidential activities
directly related to his employment."
Id. at 41, 465 N.W.2d at 270.
Schauf claims that his position as a high school
teacher is not one of public prominence and he has
not waived his right to keep his personnel records
confidential. Even if Schauf correctly characterizes
his position, that does not confer on him a legally
protected interest justifying his intervention as of
right in the mandamus action.
Section 19.35(1)(a), Stats., provides that the right to
inspect applies "except as otherwise provided by law"
and "substantive common law principles construing the
right to inspect . . . shall remain in effect."
Schauf asserts that Section 103.13(6), Stats.,
recognizes his right of privacy
in his personnel records.
We disagree. Section 103.13(6) provides:
The right of the employe or the employe's designated
representative . . . to inspect his or her
personnel records does not apply to: . . .
103.13(6)(e) Information of a personal nature about a
person other than the employe if
disclosure of the information would
constitute a clearly unwarranted
invasion of the other person's privacy.
That statute pertains to the right of an employee
or the employee's representative to inspect
he employee's own personnel record.
It has nothing to do with a third party's inspection
of the employee's personnel record.
Schauf finds a right to privacy in another statute,
Section 230.13, Stats., which, he says, provides
that personnel records of state employees
are "closed records."
Section 230.13 does not provide that
personnel records are "closed."
It provides that the secretary and administrator of the
department of employment relations "may keep records of
the following personnel matters closed to the public. .
The decision is left to the discretion of the secretary
and the administrator, not the employee.
Schauf asserts that
Village of Butler v. Cohen,
163 Wis.2d 819,
472 N.W.2d 579 (Ct. App. 1991),
"strongly suggests" that the person who has not
relinquished his privacy right may assert it
to prevent disclosure of personnel records.
We said in Butler that although public policy favors
liberal access to public records, the record custodian
must balance the public's right of inspection against
the public interest in nondisclosure.
Id. at 825, 472 N.W.2d at 581.
We described Section 103.13, Stats., as "indicative of
our state's public policy of protecting an individual's
privacy and reputational interests even to the extent
that certain employee matters may be closed to
inspection to the employee himself or herself."
Id. at 831, 472 N.W.2d at 584.
We cited ch. 230, Stats., governing state employment
relations, as providing another example of legislative
recognition of the need for confidentiality in certain
Id. at 830, 472 N.W.2d at 583.
We concluded "that the statutory provisions cited above
indicate a legislative recognition of a public policy
interest in generally denying access to the personnel
files of police officers."
Id. at 831, 472 N.W.2d at 584.
We declared ourselves satisfied that the record
custodians in Butler had
"specifically established a public interest
against disclosure which is of sufficient
weight to override the presumption that the
records should be released."
Id. at 831-32, 472 N.W.2d at 584.
Nowhere in Butler did we suggest that either
Section 103.13 or Section 230.13, Stats., is
an exception "provided by law" to which the
right of inspection does not apply by virtue
of Section 19.35(1)(a), Stats.
Neither Section 103.13 nor Section 230.13
closes personnel records or gives an
employee the right to demand closure.
Each statute is an indication of a public policy
favoring non-disclosure but that is a policy for
the record custodian to weigh against the
public policy favoring disclosure.[fn3]
If common law prevents or limits disclosure,
the custodian must comply with that law.
That is the import of Section 19.35(1)(a), Stats.,
which provides that substantive common law principles
construing the right to inspect remain in effect.
State ex rel. Richards v. Foust,
165 Wis.2d 429, 433-34,
477 N.W.2d 608, 609-10 (1991).
Schauf cites no common law rule closing personnel files
or limiting their disclosure, and we are aware of none.
Schauf asserts that an individual's fundamental right
to privacy includes "the individual interest in
avoiding disclosure of personal matters."
Whalen v. Roe, 429 U.S. 589, 599 (1977).
However, assuming that Schauf has a right of privacy
in the material Armada proposes to examine,
his right to privacy is not absolute.
In Whalen, the Court said in dicta that while a threat
to privacy is implicit in the vast amounts of
information the government accumulates, disclosure of
which can be potentially embarrassing or harmful to
individuals, the scheme before the court evidenced "a
proper concern with, and protection of, the
individual's interest in privacy."
429 U.S. at 605.
The Wisconsin case law and statutes regarding public
records contain safeguards for individuals, in the
sense that the custodian must balance the policy
favoring disclosure against the policy of
confidentiality in personnel records we
described in Butler.
Whether the custodian undertook the required
balancing is subject to judicial review.
What the Bilder court said of court records applies
here: even if "there is a legal guarantee of present
enjoyment of reputation or a general legislative policy
to protect a citizen's general interest in his or her
reputation," that does not as a matter of law overcome
the public policy regarding open records.
Bilder, 112 Wis.2d at 557, 334 N.W.2d at 261.
Schauf claims that disclosure will affect his right
to due process in the arbitration hearing on
He asserts that potential witnesses at the hearing and
the arbitrator will be prejudiced by disclosed reports.
While he has an interest in a fair arbitration hearing,
that interest is not "sufficiently related to the
transaction which is the subject of [this] action."
Id. at 547, 334 N.W.2d at 257.
Speculating that prejudice may occur in a separate
action does not create a legally protected interest
justifying intervention as of right in the present
Because Schauf has made no showing that he possesses a
statutory or common law privilege to keep confidential
any part of the Weiland report or his grievance, the
trial court properly held that he lacks a protected
interest in the mandamus action and therefore properly
denied his petition to intervene.
By the Court. Ä Order affirmed.
[fn1] Section 19.35(1), Stats., provides in
substance that any requester has a right to
inspect and to make or receive a copy of any
[fn2] Section 19.37(1)(a), Stats., provides that if
the custodian of a public record withholds
it, the requester may bring an action for
mandamus to obtain its release.
[fn3] We held in George v. Record Custodian,
169 Wis.2d 573, 582,
485 N.W.2d 460, 464 (Ct. App. 1992),
another public records case, that the
attorney general could not disclose
to a requester a record consisting
of privileged communications made
to it by its client.
The reason for our holding was that an
attorney may not disclose such communications
without the client's consent.
Id. Section 905.03(2), Stats., provides that
the "client has a privilege to refuse to
disclose and to prevent any other person from
disclosing confidential communications made
for the purpose of facilitating the rendition
of professional legal services to the
The attorney/client privilege described in
Section 905.03(2) is no mere evidentiary
rule. It restricts professional conduct.
It binds all lawyers, including the
Supreme Court Rule 20:1.6(a) (West 1992)
provides, "A lawyer shall not reveal
information relating to representation
of a client unless the client consents
after consultation, [with exceptions]."
Schauf refers us to no common law or
statutory privilege clothing him against
disclosure of personnel records.
SUNDBY, J. (dissenting).
I express no opinion as to the merits of Armada
Broadcasting's suit to compel the school district
administrator to allow Armada to inspect and copy the
report filed by the attorney retained by the school
district (the Weiland report).
However, I conclude that Richard Schauf,
who is admittedly one of the subjects
of the Weiland investigation, has
standing to intervene in this action.
I therefore respectfully dissent.
Schauf does not invoke the trial court's discretion
under Section 803.09(2), Stats., to allow
him to intervene.
He claims that he has a right to intervene under
Section 803.09(1), Stats., which provides in part:
Upon timely motion anyone shall be permitted
to intervene in an action when the movant
claims an interest relating to the property
or transaction which is the subject of the
action and the movant is so situated that the
disposition of the action may as a practical
matter impair or impede the movant's ability
to protect that interest, unless the movant's
interest is adequately represented by
The application of this statute to a given
set of facts is a question of law.
C.L. v. Edson,
140 Wis.2d 168, 175,
409 N.W.2d 417, 419 (Ct. App. 1987).
In C.L., the Eau Claire Leader-Telegram sought access
to sealed documents filed with the clerk of court.
The newspaper began a mandamus action under
Section 19.37(1)(a), Stats., to compel
disclosure of the sealed records.
We affirmed the trial court's order requiring
disclosure of edited versions of the sealed records.
The court concluded that the newspaper's intervention
motion had satisfied the following criteria:
(1) that the movant demonstrate an interest
relating to the property or transaction which
is the subject of the action;
(2) that the ability of the movant to protect its
interest will be impaired by the disposition
of the original action;
(3) that the movant's interest will not be
adequately represented by an original party
to the action;
(4) that the motion to intervene be timely; and
(5) the intervention will not unduly prejudice
adjudication of the original parties' rights.
140 Wis.2d at 175,
409 N.W.2d at 419.
The school district does not object to
Schauf's motion to intervene.
Armada Broadcasting objects on the grounds that Schauf
lacks a legally recognized interest in the subject
matter of the litigation and to allow him to
intervene would undermine the open records law.
Armada Broadcasting relies on State ex rel.
Bilder v. Township of Delavan,
112 Wis.2d 539,
334 N.W.2d 252 (1983),
Wisconsin State Journal v.
University of Wisconsin-Platteville,
160 Wis.2d 31,
465 N.W.2d 266 (Ct. App. 1990).
When Bilder is confined to the question of the
sufficiency of Schauf's interest, the case
strongly supports Schauf's motion.
The court affirmed a circuit court order permitting two
newspapers to intervene in a suit by police' chief
Bilder against the Township of Delavan and
several of its officers and employees.
The newspapers contested Bilder's motion to seal
pleadings and documents he filed in the action.
Because Wisconsin's intervention statute is based on a
federal rule of civil procedure, the court looked
to cases and commentary relating to that rule
for guidance in interpreting Section 803.09(1), Stats.
The court said:
We agree with the broader, pragmatic
approach to intervention as of right.
In deciding whether to allow a party to
intervene as a matter of right, the court
should view the interest sufficient to
allow the intervention practically rather
The court measures the sufficiency of the
interest by focusing on the facts and
circumstances of the particular case before
it as well as the stated interest in
intervention and analyzes these factors
against the policies underlying the
The intervention statute attempts to strike a
balance between two conflicting
The original parties to a lawsuit should be
allowed to conduct and conclude their own
lawsuit; persons should be allowed to join a
lawsuit in the interest of the speedy and
economical resolution of controversies.
Bilder, at 548, 334 N.W.2d at 257 (citations omitted).
Schauf has been disciplined by the school district
based on information contained in the Weiland report,
and has grieved that disciplinary action.
The trial court, which reviewed the Weiland report,
"The report contains certain information that
is dearly speculation. It contains some
hearsay information and it contains some
general statements for which there is
and has been no corroboration."
The court found that the information contained in the
report could be harmful to the alleged victims and that
"to the extent that there is extreme contradiction in
some of the information, it would cause harm to the
persons against whom the complaints were made as to the
specific details of the various incidents alleged."
The trial court therefore ordered disclosed
only a portion of the report.
The court's order may be appealed by
In any event, as a practical matter, the report injures
Schauf's reputational interests, which may not be
protected by the records custodian.
The legislature has recognized that a public employee
has an interest in maintaining the confidentiality of
his or her personnel records.
Section 19.35(1)(a), Stats., provides that the
exemptions to the requirements of the open meeting law
are indicative of public policy which may be used as
grounds for denying public access to a record, if the
custodian demonstrates that there is a need to restrict
public access to that record.
Section 19.85(1)(b), Stats., allows a governing body to
hold a closed session for the purpose of investigating
charges against a public employee.
Other legislative recognition of the right of employees
in personnel records is contained in Sections 103.13(6)
and 230.13, Stats.
I conclude that there is ample evidence the legislature
intended to protect public employees' confidential
Armada Broadcasting argues, however, that Bilder and
Wisconsin State Journal stand for the proposition that
"a custodian of public records is the only one who may
seek to prevent disclosure of public records."
In Bilder the supreme court said that "it is the legal
custodian of the record, not the citizen, who has the
right to have the record closed."
Id. at 558, 334 N.W.2d at 262.
The issue here, however, is not who has the ultimate
right to decide whether to disclose a public record;
the issue is whether a person whose interests are
affected by that disclosure has a right to argue his or
her position in litigation involving the disclosure of
When the Bilder court made the quoted statement, it had
already allowed the newspapers to intervene to argue
their position in favor of disclosure.
Wisconsin State Journal, also relied on by Armada
Broadcasting, is inapposite.
There, the university contended that the trial court
had abused its discretion in failing to join faculty
members who were the subject of an ethics
complaint and investigation.
The issue in Wisconsin State Journal was whether the
faculty members were necessary parties under Section
803.03(1), Stats. All we said in rejecting the
defendant's contention was that
"[c]omplete relief can be afforded
without the addition of the Al
Yasiris as parties."
Id. at 43, 465 N.W.2d at 271.
It is true that we also said in dicta:
"Only the records custodian, not
individuals who are the subjects of
public records, may seek to prevent
Id. However, our authority for that statement was
the previously quoted statement from Bilder.
Bilder does not support the proposition that only
the records custodian may seek to prevent
inspection of public records.
All that Bilder will support is that it is the legal
custodian of the record, not the citizen, who has
the right to have the record closed.
Wisconsin State Journal, therefore, does not stand for
the proposition that a party who has the requisite
interest as the subject of a public record may not
intervene as a matter of right where the conditions
for intervention are satisfied.
Because I conclude that Schauf has demonstrated an
interest sufficient to entitle him to intervene in this
action as a matter of right, I respectfully dissent.