ARMADA BROADCASTING, INC. v. STIRN,

177 Wis.2d 272 (Ct.App. 1993)

501 N.W.2d 889                 INDEX




ARMADA BROADCASTING, INC., a Wisconsin corporation, Plaintiff-Respondent, v. Robert E. STIRN, District Administrator, School District of Wisconsin Dells, a municipal corporation, Defendants-Respondents, 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.

TOP
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
APPEAL from an order of the circuit court for

Sauk county: JAMES EVENSON, Judge.



Affirmed.



For the appellant the cause was submitted on the

brief of Carol Grob of Cullen, Weston,

Pines & Bach of Madison.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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.



GARTZKE, P.J.



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.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
In October 1992, Armada requested that the district

provide copies of the grievances Schauf and another

employee had filed in connection with the

investigation.



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.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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."



Bilder,

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

     prominence.



     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.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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 disagree.



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."
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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

personnel matters.



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]
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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

his grievance.



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

action.



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

          public record.



[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

          client."



          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

          attorney general.



          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).
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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

     existing parties.



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;
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
(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.



C.L.,

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),



and



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

     than technically.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
     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

     intervention statute.



     The intervention statute attempts to strike a 

     balance between two conflicting

     publicpolicies.



     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,

stated that:



     "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

Armada Broadcasting.



In any event, as a practical matter, the report injures

Schauf's reputational interests, which may not be

protected by the records custodian.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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

personnel records.



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

public records.



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.
272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS
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

          inspection."



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.




272
273
274
275
276
277
278
279
280
281
282
283
284
285
286
287
MAIL
GJS