BOCK - DANE COUNTY CASE 164-312




CONTENTS referenced to physical pages:
Stipulation of facts by the Parties: 1, 2, 3, 4, 5, 6
Decision:   1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13
Findings of Fact and Conclusions of Law:   12,   3
Writ of Mandamus: 1 and 2
Chancellor Irving Shain 14 July 1978 Letter 123


                       Stipulation of Facts Page 1 of 6
STATE OF WISCONSIN       CIRCUIT COURT      DANE COUNTY THE CAPITAL TIMES COMPANY, a Wisconsin corporation, Petitioner, vs.                                    Case No. 164-312 ROBERT H. BOCK, Dean of School of Business, et al. Respondents.
STIPULATION OF FACTS Petitioner by its attorneys, LaFollette, Sinykin, Anderson & Munson and Respondents by their attorneys, Lawton & Cates, hereby stipulate and agree as follows: 1.   This action shall be tried to the Court without      a jury on the basis of the agreed facts and      documents set forth in this stipulation.      No oral testimony shall be offered by either party      and, with the execution of this document,      the Petitioner rests its case and      the Respondent rests its case. 2.   The facts stated herein shall be established and      the documents attached hereto shall be admitted      into evidence without authentication or      further testimony. 3.   On July 6, 1978, Petitioner by its employee,      David Pritchard, a reporter for The Capital Times      newspaper, submitted to each of the Respondents a      written request to examine any and all reports      made by faculty members under Section 8.05 of      the University of Wisconsin-Madison Faculty      Rules and Regulations, or under similar      provisions of other University or Board of      Regents rules or regulations, regarding the      nature and scope of any gainful outside      activities of an extensive, recurring, or      continuing nature engaged in during periods      of full time employment at the University of      Wisconsin-Madison, as well as all written      responses made by each of the Respondents to      such reports.      True and correct copies of these letters, marked      Exhibits 1 through 11, are attached hereto.
                       Stipulation of Facts Page 2 of 6 4.   On or about July 14, 1978, the Chancellor of the      University of Wisconsin-Madison, Irving Shain,      responding on behalf of each Respondent, refused      to allow Petitioner access to the requested      records. A true and correct copy of Chancellor      Shain's response, marked Exhibit 12 is      attached hereto. 5.   Each Respondent adopted Exhibit 12 as their      reasons for refusal to allow examination      of the requested records. 6.   The Capital Times filed a Petition for Writ of      Mandamus on July 31, 1978 in the Circuit Court      for Dane County, Wisconsin. An Order and      Alternative Writ of Mandamus were issued      the Court on July 31, 1978. 7.   The Respondents filed a Motion to Quash the      Alternative Writ of Mandamus on August 28, 1978.      The Court entered an Order Denying the Motion      to Quash on January 25, 1979. 8.   The parties to this action stipulated to a      protective order which was entered by the Court      on May 14, 1980, related to excising the      transcripts of depositions and other documents      to prevent public exposure of the alleged      privileged materials prior to trial,      decision on the merits and appeal.
                       Stipulation of Facts Page 3 of 6 9.   The Respondents filed a Return to Alternative Writ      and Answer to Petition on October 26, 1979,      which was amended on July 28, 1981. 10.  The allegations of paragraphs 1, 2, 3, 4, 5, 6, 7,      8, 9, 10, 11, 12, 13 and 14 of the petition are      admitted by Respondents except as stated in      paragraph 1 of Respondents Amended Return. 11.  At all times material to this action, Respondents      or their successors were and are officers of the      State of Wisconsin who were and are legal      custodians of the requested documents within the      meaning of Section 19.21(1), Wis. Stats. 12.  Section 36.23, Wis. Stats., requires the Board of      Regents of the University of Wisconsin System      to define conflicts of interest and adopt      rules related thereto. 13.  The Rules of the Board of Regents of      the University of Wisconsin System,      10 Wis. Adm. Code,      Section UWS 7.01,      require:      The faculty of each institution, with the approval      of the chancellor, shall develop rules and              procedures which will effectively govern the      performance by a faculty member of activities of      an extensive recurring or continuing nature      outside his/her institutional responsibilities      during any period of employment by an institution.      Such rules and procedures shall be designed to      insure devotion to teaching, research activities      and all normal university responsibilities, while        permitting broad participation by faculty in      public service or endeavors related to their      fields of interest.      Institutional rules and procedures shall, at a      minimum, provide for the following:
                       Stipulation of Facts Page 4 of 6      (1)  Reporting of substantial outside activities;      (2)  Notification to faculty members where           activities are deemed excessive or           improper;      (3)  A mechanism for appeal from a           decision of impropriety;      (4)  Rules concerning the use of           university facilities;      (5)  Rules concerning absence from           regular duties;      (6)  Reporting of any intended service           as an expert witness in legal           proceedings, or as staff, advisor,           or consultant to granting agencies. 14.  Section 8.05 of the University of      Wisconsin-Madison Faculty Rules and Regulations      was adopted in order to comply with the Board      of Regents Rules described at paragraph 12.      Section 8.05 provides as follows:      SUBSTANTIAL OUTSIDE ACTIVITIES. (See UWS 7.01.)      A member of the faculty employed on a      full-time basis who engages in or plans to      engage in gainful activities of an extensive,      recurring, or continuing nature outside of      his/her broad institutional responsibilities      during any period of full-time employment by      the University shall report in writing the      nature and scope of such activities to the      chairman of his/her department and to the      appropriate dean.      A.  APPROVAL.          After faculty members have reported          such activities, they may assume          that the activities have been          approved unless advised to the          contrary, in writing, by the dean.          The dean should consult the          chancellor concerning all cases          that involve major sums of money,          extensive time, or work that is          related to matters of public policy          and concern.
                       Stipulation of Facts Page 5 of 6      B.   APPEAL OF DISAPPROVAL.           If the dean disapproves of such           activities, the faculty member           has the right to appeal to           the chancellor. 15.  The records to which access was requested      by Petitioner are required by faculty rule      to be filed with Respondents. 16.  At all times material to this action, the records      to which Petitioner requested access were and      are in the lawful possession and control of      the Respondents or their successors, or      were and are records the possession or      control of which Respondents or their      successors were or are lawfully entitled. 17.  The depositions of      *  Robert H. Bock, Dean         School of Business,      *  E. David Cronon, Dean         College of Letters and Science,      *  Orrin L. Heistad, Dean         Law School,      *  W. Robert Marshall, Dean         College of Engineering,      *  Arnold Brown, Dean         Medical School,            *  John R. Palmer, Dean         School of Education,       *  John Peterson, Dean         School of Allied health,      *  Leo Walsh, Dean         College of Agricultural and Life Sciences,      *  Valencia N. Prock, Dean         School of Nursing,      *  Elizabeth J. Simpson, Dean         School of Family Resources & Consumer Sciences,      *  George Zografi, Dean         School of Pharmacy,         all of the University of Wisconsin - Madison,      *  Irving Shain, Chancellor         University of Wisconsin- Madison         and      *  David Pritchard, reporter         Capital Times,      on file herein shall be admitted as evidence into      the record subject to objections of counsel. 18.  Any objections of counsel to the admissibility of      evidence shall be stated by them in their briefs      and the Court will rule on such matters in its      opinion on the merits.
                       Stipulation of Facts Page 6 of 6 19.  Exhibits 13 through 142 were produced by      Respondents in response to Petitioner's      request for production of documents.      Exhibits 30, 31, 57-64, 91, 131 and 136 are      documents other than reports of outside      activities, and the remainder of said      Exhibits are reports of outside activities. 20.  Exhibits 143-152 are Exhibits 1-9 to      the Deposition of Irving Shain;      Exhibits 153-156 are Exhibits 1-4 to      the Deposition of W. Robert Marshall;      Exhibit 157 is Exhibit 1 to the      Deposition of Dr. Arnold Brown;      Exhibits 158-161 are Exhibits 1-4 to the      Deposition of Robert H. Bock;      and      Exhibit 162 is Exhibit 1 to the      Deposition of George Zografi. 21.  Chapter 8 of the University of Wisconsin-Madison      Faculty Rules and Regulations is attached      hereto as Exhibit 163. 22.  Chapter 10 C of the 1969 faculty rules,      Chapter VIII of the 1974 faculty rules      and pages 17 and 18 of the 1966 faculty handbook      are attached hereto as Exhibits 164, 165 and 166      respectively.                       Dated: December 1, 1982.                       THE CAPITAL TIMES COMPANY                       LaFollette, Sinykin, Anderson &                       Munson and Thomas A. Hoffner                       Attorneys for Petitioner                       ROBERT H. BOCK, et al                  By:  John H. Bowers                       Lawton & Cates and John H. Bowers                       Attorneys for Respondent
                       Memorandum Decision Page 1 of 13 _______________________________________________________ STATE OF WISCONSIN       CIRCUIT COURT      DANE COUNTY _______________________________________________________ THE CAPITAL TIMES COMPANY, A Wisconsin corporation, Petitioner,                                        Case No. 164-312 vs. ROBERT H. BOCK, Dean of School of Business, University of Wisconsin et al., Respondents. _______________________________________________________ Presently before The Court is a Petition for a Writ of Mandamus originally filed in the Dane County Circuit Court on July 31, 1978. The Respondents, the Deans of the University of Wisconsin-Madison, filed a Motion to Quash the Alternative Writ of Mandamus on August 28, 1978. The Court in a Memorandum Decision dated January 15, 1979 denied the Motion to Quash. The Respondents filed a Return to Alternative Writ and Answer to Petition on October 26, 1979 which was amended on July 28, 1981. The Court has examined the entire record herein, including the exhibits, documents, excellent briefs and persuasive oral arguments prior to this decision to grant the Writ of Mandamus. FACTS The factual basis of this action is undisputed. The parties have stipulated to the facts in a December 1, 1982 document. The parties also agree to the statement of facts contained in the Petitioner's brief in support of issuance of the Writ. Briefly, the facts are as follows: On July 6, 1978, David Pritchard, a Capital Times Reporter, made a written request to  each of the Respondents, Deans of the various Colleges of the University of Wisconsin- Madison, to examine any and all reports made to the Deans by faculty or staff members under Section 8.05 of the University of Wisconsin-MadiSOn Faculty Rules and Regulations, or under similar provisions of prior rules and regulations.
                       Memorandum Decision Page 2 of 13   The request was specifically addressed to reports regarding the nature and scope of gainful outside activities of an extensive or recurring or continuing nature engaged in by faculty or staff during periods of full-time employment at the University. Mr. Pritchard also requested the right to examine any and all written responses made by the Deans to the reports. On or about July 14, 1978, the Chancellor of the University of Wisconsin-Madison, Irving Shain, responding by letter on behalf of each Respondent, refused to allow Petitioner access to the requested records. Each Respondent adopted Chancellor Shain's response as his or her reasons for refusing to allow examination of the requested records. The parties agree that the Respondents were and are officers of the State of Wisconsin and are legal custodians of the requested records within the meaning of sec. 19.21(1), Wis. Stats. APPLICABLE LAW The Wis. Open Records Law is sec. 19.21, Wis. Stats. At the time the documents were requested in 1978 the statute read as follows: Section 19.21 Custody and delivery of official property and records. 19.21(1)  Each and every officer of the           state. . ., is the legal custodian           of and shall safely keep and           preserve all property and things           received from his predecessor or           other personas and required by law           to be filed, deposited, or kept in           his office, or which are in the           lawful possession or control of           himself or his deputies, or to the           possession or control of which he           or they may be lawfully entitled,           as such officers. 19.21(2)  Except as expressly provided           otherwise, any person may with           prior care, during office hours and           subject to such orders or           regulations as the custodian           thereof prescribes, examine or copy           any of the property or things           mentioned in subsection 19.21(1).           Any person may, at his own expense           and under such reasonable           regulations as the custodian           prescribes, copy or duplicate any           materials, including but not           limited to blueprints, slides,           photographs and drawings.           Duplication of university expansion           materials may be performed away           from the office of the custodian if           necessary. Wis. Stats. (1977).
                       Memorandum Decision Page 3 of 13 The requirement to monitor outside activities was mandated by Administrative Rule 7.01 of the University of Wisconsin System. It reads:      UWS 7.01 Outside activities.      The faculty of each institution, with the approval      of the chancellor, shall develop rules and      procedures which will effectively govern the      performance by a faculty member of activities of      an extensive, recurring, or continuing nature      outside his/her institutional responsibilities      during any period of employment by an institution.      Such rules and procedures shall be designed to      insure devotion to teaching, research activities      and all normal university responsibilities, while      permitting broad participation by faculty in      public service or endeavors related to their      fields of interest. Institutional rules and procedures shall, at a minimum, provide for the following: (1)  Reporting of substantial outside activities; (2)  Notification to faculty members where activities      are deemed excessive or improper; (3)  A mechanism for appeal from a decision of      impropriety; (4)  Rules concerning the use of university facilities; (5)  Rules concerning absence from regular duties; (6)  Reporting of any intended service as an expert      witness in legal proceedings, or as staff,      advisor, or consultant to granting agencies. Wis. Admin. Code sec. 7.01, UWS 1975. The faculty of the University of Wisconsin-Madison in response to this rule passed an Outside Activity Rule. It is numbered as 8.05 of the Faculty Rules and Regulations. It reads: University of Wisconsin Madison Faculty Rules and Regulations      8.05.  SUBSTANTIAL OUTSIDE ACTIVITIES.             (See UWS 7.01.)      A member of the faculty employed on a full-time      basis who engages in or plans to engage in gainful      activities of an extensive, recurring, or      continuing nature outside of his/her broad      institutional responsibilities during any period      of full-time employment by the University shall      report in writing the nature and scope of such      activities to the chairman of his/her department      and to the appropriate dean.      A.   APPROVAL.      After faculty members have reported such      activities, they may assume that the activities      have been approved unless advised to the contrary,      In writing, by the dean.      The dean should consult the chancellor concerning      all cases that involve major sums of money,      extensive time, or work that is related to matters      of public policy and concern.
                       Memorandum Decision Page 4 of 13      B.   APPEAL OF DISAPPROVAL.      If the dean disapproves of such activities, the      faculty member has the right to appeal to the      chancellor.      The reports filed in compliance with Rule 8.05      are the subject of this lawsuit.      It is important to note that the faculty passed      Rule 8.05 and it is the faculty which has the      ability to define the type and scope of outside      activities that must be reported. This factor will      be discussed later in this decision. The leading case in the application of Section 19.21, Wis. Stats. is Newspapers, Inc. v. Breier,  89 Wis. 2d 417, 279 N.W.2d 179 (1979) (hereinafter Breier). The parties are in agreement that the Wisconsin Supreme Court's analysis in Breier Is applicable here. The relevant portion of that case Follows:      In Beckon v. Emery       36 Wis. 2d 510, 516,      153 N.W.2d 501 (1967),      we stated that the "public policy, policy, and      hence the public interest, favors the right of      inspection of documents and public records."      See, also      State ex rel. Dalton v. Mundy,       80 Wis. 2d 190, 196,      257 N.W.2d 877 (1977).      These cases restate the legislative presumption      that, where a public record is involved, the      denial of inspection is contrary to the      public policy and the public interest.      To implement this presumption, our opinions have      set out procedures and legal standards for      determining whether inspection of records      is mandated by the statute.      In the first instance, when a demand to inspect      public records is made, the custodian of the      records must weigh the competing interests      involved and determine whether permitting      inspection would result in harm to the      public interest which outweighs the      legislative policy recognizing the      public interest in allowing inspection.      Beckon v. Emery, Supra 516;      Youmans, supra at 682.      If the custodian decides not to allow inspection      he must state specific public-policy      reasons for the refusal.      These reasons provide a basis for review in      the event of court action.      Beckon, supra at 518;      Youmans, at 682.      The custodian of the records must satisfy the      court that the public-policy presumptIon in      favor of disclosure is outweighed by even      more important public-policy considerations.      Whether form to the public Interest from      inspection outweighs the public interest      in inspection is a matter of law.      The duty of the custodian is to specify reasons      for nondisclosure and the court's role is to      decide whether the reasons asserted are      sufficient.      It is not the trial court's or this court's role      to hypothesize reasons or to consider reasons      for not allowing inspection which were not      asserted by the custodian.      If the custodian gives no reasons or gives      Insufficient reasons for withholding a public      record, a writ of mandamus compelling the      production of the records must issue.      Beckon, supra at 518,      states,      "There is an absolute right to inspect       a public document in the absence of       specifically stated sufficient       reasons to the contrary."
                       Memorandum Decision Page 5 of 13 Newspapers, Inc. v. Breier,  89 Wis. 2d 417, 426-27, 279 N.W. 2d 179 (1979) As stated above, a balancing test is used to determine if the custodian's reasons for refusal are sufficient to outweigh the presumption in favor of disclosure derived from the statute and common law. The Respondents request that the presumption in favor of disclosure be applied with less weight to the University of Wisconsin. They argue that the University is unlike other state government organizations and deserves special treatment, The Court finds no merit in the proposition that the University is not a government body within the meaning of the statute. See 70 Op. Att'y Gen 140 (August 12, 1981) The language of sec. 19.21, Wis. Stats. contains no exception for records held by the University. It is granted that the University performs a special role as a state research and education institution, but is a matter for the Legislature to create an exception to a statutory provision. The Court is confined to examination of the reasons given by the custodian of the records for nondisclosure. Breier, p. 427. The duty of the Court is to decide whether the reasons cited by the chancellor outweigh the public interest in disclosure of Outside Activity Reports to the Capital Times. There are four reasons given by Chancellor Shain in his letter of July 14, 1978 to reporter David Pritchard for denial. They are: 1)   concern for the privacy rights of the faculty; 2)   use of the reports for personnel evaluation; 3)   Accountability is best served without public      disclosure; and, 4)   the request is too burdensome. The Court will examine each of these reasons separately, and then determine if together they outweigh the interests in favor of disclosure. 1) PRIVACY RIGHTS OF THE FACULTY Chancellor Shain asserted in his letter that a right to privacy protects the records. In his letter he states,      "an employee has a right to an expectation of      confidentiality concerning most of the      information maintained about him or      her by the employer". Exhibit 12, p. 3.
                       Memorandum Decision Page 6 of 13 The Respondents explained in their briefs that this right of privacy derives from constitutional and statutory sources. The constitutional "right to privacy" is found  in the Fourteenth Amendment's concept of personal  liberty. Roe v. Wade, 410 U.S. 113, 35 L. Ed. 147,  93 S. Ct. 705 (1973). There are two branches of the right to privacy,      "one is the individual interest in avoiding      disclosure of personal matters; and another      is the interest in independence in making      certain kinds of important decisions". Whalen v. Roe, 429 U.S. 589, 599-600,  51 L. Ed. ?d 64, 97 S. Ct. 869 (1977). This case invokes mainly the first branch of      "disclosure of personal matters". The Respondents argue that release of Outside Activity Reports would violate this right of privacy. The Respondents rely heavily on the persuasiveness of Slevin et. al v. City of New York, et. al, 551 F. Supp. 917 (S.D.N.Y. 1982) for this contention. Slevin involved overturning a financial disclosure law for city employees earning over $30,000 annually. The income of family members was to be included in the reports. A critical passage of the case follows:      "These privacy interests and other limits on      public disclosure apply to governmental      functions no less essential than the      exposure and deterrence of corruption      and conflicts of interest.      They reflect national values that cannot be      set aside by the mere invocation of ends      so vague and uncircumscribed as the need      to inform the public, or the public's      right to know.      Where tangible privacy interests are at      stake, a need for public disclosure must      be tangibly alleged and established, unless      the public employees involved are engaged      in policymaking and are therefore proper      subjects of public scrutiny."      Slevin, et. al v. City of New York, et. al,      551 F. Supp. 917, 947-948 (1982). The other case relied upon by the Respondent is Carmel-by the Sea v. Young,   2 Cal. 3d 259, 466 P. 2d 225 (1970). In that case a financial disclosure requirement was struck down for overbreadth by the California Supreme Court. The Respondents contend further that disclosure of outside activities would damage individual reputations. Respondents assert that individual reputations are recognized as a legitimate public interest to be protected. Breier p. 430.
                       Memorandum Decision Page 7 of 13 This interest in protection of individual reputations and private affairs is contended to outweigh the public's right to know. In analyzing all of these assertions, the Court finds there are several reasons why the constitutional right in avoiding disclosure of personal matters carries less weight than the Respondents believe. First, the situation before the Court differs from the facts in those oases where a constitutional right to privacy prevailed over disclosure. There is no attack upon the constitutional validity of sec. 19.21, Wis. Stats. or the U.W. Administrative Rules. The Carmel and Slevin cases dealt with the validity of the respective. There is no attack In this case on the collection of the information as was the issue In those cases. Second, the Slevin and Carmel situations involved overlybroad disclosures which included incomes of family members. Here the reports cover a narrow circumstance of           "gainful, recurring activity by           full-time faculty members". There is no overbreadth problem asserted here. The faculty itself was mandated by Wis. Admin. Codes 7.01 U.W.S. (1975) to establish a rule for reporting outside activity. The faculty has already limited the scope of the reports, to some degree, to reduce any invasion of privacy problems. Third, the application of the Slevin test may still allow disclosure in this case. Slevin held that disclosure is necessary where there is a tangible public interest at stake, such as with government employees exercising policy making functions. Slevin, p. 939. Here, disclosure of the outside activities may serve a tangible public interest in determining conflicts with the faculty's primary teaching role. Although the faculty does not make policy, its actions do have a profound impact on the lives of students. These three arguments do not eliminate Justifiable concerns in preventing unwarranted intrusions into the faculty's personal affairs. As in Breier, the concern regarding invasion of privacy is a factor to be weighed by the Court.
                       Memorandum Decision Page 8 of 13 In Breier the Wisconsin Supreme Court held that arrest charges could be released. Here, the release of Information about outside activities appears to be less damaging to individual reputations. There is certainly no stigma attached to helping various businesses by providing expert knowledge. To the contrary, aiding other governmental agencies or private enterprises is prestigious and to be encouraged. Further it dispels the myth of the ivory tower. By itself, the constitutional right to privacy does not outweigh the statutory presumption in favor of disclosure. The Respondents argue that the records are protected by a statutory right of privacy pursuant to sec. 895.50, Wis. Stats. However, the statute allows for an invasion of privacy where a legitimate public interest is concerned. Sec. 895.50(2)(c), Wis. Stats. specifically states,      "It is not an invasion of privacy to      communicate any information available to the      public as a matter of public record". There is no dispute that the activity reports are public records. The Legislature had determined that this is an exception to the statutory right of privacy. The Outside Activity Reports are not protected from disclosure by the language in sec. 895.50, Wis. Stats. The Respondents assert that the right to      "academic freedom" will be harmed by disclosure. This argument is grounded upon U.S. Supreme Court cases Shelton v. Tucker, 364 U.S. 479 (1960) and Wieman v. Updegraff, 344 U.S. 183 (1952), Wisconsin Supreme Court case State ex rel. Ball v. McPhee,  6 Wis. 2d 190 94 N.W.2d 711 (1959). Respondents argue academic freedom would be violated by the "chilling effect" of disclosure on the faculties' ability to perform. This assertion, however, is not contained in Chancellor Shain's letter denying access. As stated earlier, the Court is confined to the reasons stated in the letter. Breier, p. 427. Assuming that the Chancellor's expressed concern for faculty privacy rights implies a desire to guarantee academic freedom, the Court still finds no weight to this argument.
                       Memorandum Decision Page 9 of 13 Since the faculty members filed Outside Activity Reports with their supervisors, reporting gainful, recurring outside activities, the chilling effect on associations alluded to in Shelton is inapplicable here. The Deans could Impinge upon academic freedom by restricting associations, but they have not done so. Rule 8.05 involves neither the sweeping disclosure requirements, nor the inquiry into activities protected by the first amendment that were found in Shelton and Wieman. Neither volunteer work membership in clubs, nor political activities are requested in Outside Activity Reports. The interest in academic freedom asserted in this record is not persuasive a factor to be considered further by the Court. 2) USE FOR PERSONNEL EVALUATION IS LIMITED Chancellor Shain reasons in his letter that the Outside Activity Reports should be undisclosed due to their use in personnel evaluation. The University argues in its brief that the purpose of the Reports is to monitor the time faculty spend on outside activities to ensure that the faculty still has adequate time for University commitments, such as teaching. The Respondents assert further that the requested records are used for promotion, tenure and merit raise decisions. The use of the Outside Activities Reports for personnel evaluation creates no exemption to the open records law. The same interest in protecting an individual reputation that was present in the concern for invasion of privacy is applicable here. It is merely a factor which adds weight to the argument for I nondisclosure in balancing of interests test. The real question is how much weight should be given to the protection of an individual's reputation in balancing the various interests. Only Dean Palmer of the School of Education indicated that the Reports were used in personnel evaluation. Two to five reports are filed each year from a faculty of 180 in that school, and they do not become part of the permanent personnel record.
                      Memorandum Decision Page 10 of 13 Even if they did, the mere use of said records in conjunction with a personnel evacuation should not make such records nonpublic. Thus, the evidence before the Court is that the use of information in the reports both directly and indirectly or personnel evaluation is not significant. The Court therefore will give the interest in the use of reports for personnel evaluation only slight weight. 3)   Accountability is Served      With Disclosure to the Press. The Letter of July 14 from Chancellor Shain states.      "The faculty is still accountable to the      Board of Reports, and the Board is      accountable to the public.      In view of the interests involved, we believe      that accountability through the Regents and      Legislature protects the public interest as      well as the faculty's expectation of      confidentiality in personnel matters". The Respondents elaborate further in their brief. Their contention is that it is the responsibility of the administration and the Board or Regents to monitor the time the faculty spends with outside sources, and the responsibility of the administration to decide when outside activity is jeopardizing the faculty's primary function of teaching. They argue that the press would discourage the faculty from engaging in outside activities and reduce the willingness of the faculty to disclose their activities to the administration. There is no argument with the Chancellor's view that the University administration is the best qualified to determine the scope of allowed outside activity. Disclosure to the public will not depreciate this duty of the administrator. The role of the Board of Regents and the Administration is to scrutinize such outside activities carefully. Indeed disclosure through public review may assist the Administration and the Board of Regents in fulfilling this responsibility. The question really becomes whether public disclosure will be adverse to the public interest because it causes a reduction in outside activities and/or a failure to report them.
                      Memorandum Decision Page 11 of 13 There is no evidence before the Court which shows conclusively that outside activity will be curtailed. Such a conclusion is mere speculation. Fewer than three (3) per cent of the faculty filed reports of outside activities during each of the subject years. The Court questions whether it should be concerned that even fewer reports will be filed giver this record. Compliance already appears to be at an unrealistically low level. This Court is not persuaded, on this record, that disclosure to the press will jeopardize the public interest. 4)   The Production of the Reports      Would Not be Burdensome. The final reason given by the custodians of the Outside Activity Reports is that the production of the records would be so burdensome as to be a factor to be weighed against disclosure. As the Petitioner points out, the request is no longer burdensome since the requester documents have been produced during the discovery proceedings. They are not extensive. The Respondents have suggested that due process requires that the records be disclosed on a case by case basis to protect individual privacy claims as the records are not uniform. Hunter v. City of New York,  58 A.D. 2d 136, 396 N.Y.S. 2d 186 (1977), aff'd. 405 N.Y.S. 2d 455,  44 N.Y. 2d 708, 376 N.E. 2d 923 (1978). The Hunter case may be distinguished in the manner suggested by the Petitioner. In Hunter the financial information to be disclosed was unrelated to any public interest in the employee's performance ability. Here, the reports bear directly on the time the employe can devote to his work. A more important reason denying a case-by-case determination is the burden it would place on the Court system. The Wisconsin Supreme Court ha s stated: Finally, this case-by-case determination would not only place a tremendous burden upon police administrators but would be likely to result in feckless, repetitive, and burdensome litigation in the courts.
                      Memorandum Decision Page 12 of 13 Breier, p. 439. In this situation there are 2,200 faculty members who may at some time in their careers engage in outside activities. The Court does not believe the intrusions on their privacy is so great as to require individual attention, especially since the breadth of the reports is determined by faculty rule, not the Legislature  or the Court. CONCLUSION After examining each reason submitted by the Chancellor for deciding to withhold the reports, the Court must decide if they outweigh the presumption in favor of disclosure of public records. The Court has found that some weight should be given to the protection of privacy interest and, to a much lesser degree, to the use of the records for personnel evaluation. The burden is on the Respondents to overcome the presumption in favor of disclosure. Breier, p. 427 The Legislature has made the policy decision to prevent disclosure only in the exceptional case. The Court believes the interference with faculty privacy interests and limited use of the records for personnel evaluation should not, and does not, create an exception to the law. Even assuming that these interests do somehow overcome the stated presumption in favor of open records, the Court believes they are outweighed by other interests in favor of disclosure to the Petitioner. The University is dependent upon the trust of the public for its well-being. Nondisclosure raises unfounded suspicions of illegitimate activities. The disclosure of the documents would erase any doubts which might taint the faculty's well-deserved reputation for excellence, and dedication to, performance. There is a public interest in assuming that the faculty is free from overly burdensome nonscholastic endeavors. The public has a right to know if enough time is being allocated to the faculty's primary educational function. These interests along with the statutory and common law presumption in favor of disclosure outweigh the interests submitted by the Respondents for denying access to the records.
                      Memorandum Decision Page 13 of 13 The long held public trust in the University will be preserved by free access to the records, as mandated by the Legislature in enacting Section 19.21, Wis. Stats. The Writ of Mandamus is granted. The attorney for the Petitioner has already drafted Findings of Fact, Conclusions of Law and Judgment. The Respondents shall have ten days to respond to the Petition's draft. Dated this 12th day of April, 1983 BY THE COURT: Dane County Circuit Court, Branch 5 cc: Atty. Earl Munson and Atty. Thomas Hoffner     Atty. John Bowers     District Atty. Hal Harlowe


Findings of Fact and Conclusions of Law     Page 1 of 3 _______________________________________________________ STATE OF WISCONSIN       CIRCUIT COURT      DANE COUNTY THE CAPITAL TIMES COMPANY, Petitioner, v.                                     Case No. 164-312 ROBERT H. BOCK, ET AL., Defendants. _______________________________________________________ FINDINGS OF FACT AND CONCLUSIONS OF LAW _______________________________________________________ This action having been tried to the court, without a jury, on the pleadings and stipulated facts, now I, the judge before whom the matter was tried, make the following Findings of Fact and Conclusions of Law: Findings of Fact 1.   On July 6, 1978, the Petitioner requested the      right to examine any and all reports by faculty      members of the University of Wisconsin - Madison      made to the respondents under Section 8.05 of the      Faculty Rules and Regulations larding the nature      and scope of any gainful outside activities of an      extensive, recurring or continuing nature engaged      in during their periods of full-time employment by      the University of Wisconsin-Madison, as well as      all written responses made by each of the      Respondents to such reports.
Findings of Fact and Conclusions of Law     Page 2 of 3 2.   Access to the requested reports was      denied by each  of the respondents. 3.   Each of the Respondents adopted the reasons stated      in a letter dated July 14, 1978 from the      Chancellor of the University of Wisconsin -      Madison, Irving Shain, to the Petitioner      as the basis for his or her denial of      access to the records. 4.   The records to which the Petitioner has requested      access contain information that relates to      activities engaged in for financial gain by      public employees outside of the scope of      their institutional responsibilities. 5.   Use of the subject records, directly or      indirectly, for personnel evaluation      is not a significant issue. 6.   The purpose of the filing of the subject records      is to comply with section 36.23, Wis. Stats.      and 10 Wis. Adm. Code, Sec. UWS 7.01 which      are related to conflicts of interest. 7.   Neither the University of Wisconsin - Madison,      its faculty, nor the public would be harmed by      allowing the petitioner access to the      requested records. 8.   Allowing the Petitioner access to the requested      records would be beneficial to the public interest      and would be consistent with public policy. 9.   the Petitioner's request is not too general or too      burdensome to constitute an unreasonable request      for access to public records.
Findings of Fact and Conclusions of Law     Page 3 of 3 CONCLUSIONS OF LAW 1.   The reports of outside activities of faculty      members of the University of Wisconsin - Madison      to which the Petitioner seeks access are public      records under Sec. 19.21. stats. 2.   The Respondents have not specified reasons for      nondisclosure that are sufficient to deny the      Petitioner access to the requested reports. 3.   The harm to the public interest from not allowing      access to the requested reports outweighs the harm      to the public interest from allowing such access. 4.   A Writ of Mandamus should be issued commanding the      Respondents to provide the Petitioner with an      opportunity to examine and copy the requested      reports.                       Dated: April 29th 1983.                       BY THE COURT:                       Robert R. Pekowsky, Circuit Judge Approved as to form: John J. Bowers
                           Writ of Mandamus Page 1 of 2 _______________________________________________________ STATE OF WISCONSIN       CIRCUIT COURT      DANE COUNTY _______________________________________________________ THE CAPITAL TIMES COMPANY,                Petitioner, v.                                     Case No. 164-312 ROBERT H. BOCK, ET AL.,                Defendants. _______________________________________________________ WRIT OF MANDAMUS _______________________________________________________ THE STATE OF WISCONSIN TO: Robert H. Bock, Dean of the School of Business; Robert M. Bock, Dean of the Graduate School; Isabelle J. Barnes, Interim Dean of the School of Allied Health Professions; John G. Bollinger, Dean of the College of Engineering; Arnold L. Brown, Dean of the Medical School; E. David Cronon, Dean of the College of Letters and Science; Bernard C. Easterday, Dean of the School of Veterinary Medicine; Orrin L. Helstad, Dean of the Law School; August P. Lemberger, Dean of the School of Pharmacy; John R. Palmer, Dean of the School of Education;   Valencia N. Prock, Dean of the School of Nursing; Elizabeth J. Simpson, Dean of the School of Family Resources and Consumer Sciences and Leo M. Walsh, Dean of the College of Agriculture and Life Sciences. GREETING: The Capital Times Company having petitioned for a Writ of Mandamus requiring you and each of you to permit Petitioner to examine and copy certain records and reports filed by faculty members with you or your predecessors, and the Court having made its Findings of Fact and Conclusions of Law and having rendered Judgment for the Petitioner,
                           Writ of Mandamus Page 2 of 2 NOW, THEREFORE, we command and firmly enjoin each of you to permit The Capital Times Company on or before May 13, 1983 to examine and copy any and all reports made by faculty members as required by Section 8.05 of the University of Wisconsin-Madison faculty Rules and Regulations regarding the nature and scope of any gainful activities of an extensive, recurring or continuing nature outside of his or her broad institutional responsibilities during any period of full-time employment by the University of Wisconsin - Madison. WITNESSED,  The Honorable Robert R. Pekowsky,             Judge, Circuit Court, Branch V,             Dane County, Wisconsin, at the             City-County Building, in the             City of Madison , Wisconsin,             April 29, 1983.                               Robert R. Pekowsky, Judge Approved as to form: John H. Bowers
Respondent's Exhibit L Petitioner's Exhibit 2                      page 1 of 3 _______________________________________________________ UNIVERSITY OF WISCONSIN   Madison     Wisconsin   53706 Office of the Chancellor  Bascom Hall 500 Lincoln Drive _______________________________________________________ July 14, 1978 Mr. David Pritchard The Capital Times P.0. Box 1030 Madison, WI 53701 Dear Mr. Pritchard: This is in response to your requests addressed to each of the UW-Madison academic deans, for access to all of the outside activity reports submitted by faculty members to their deans in compliance with section 8.05, Faculty Rules and Regulations (1978). It is the position of the UW-Madison administration that the documents you have requested are personnel records and that those records, therefore, are not available for public inspection. in order to set forth our reasons for declining to permit public inspection of these documents, it is necessary first to describe their origin and function. Section 8.05 of the Faculty Rules [ previously Section VIII.ll, Faculty Rules and Regulations (1974) ] is based on secs. 100.01 and 100.02 of the By-Laws of the Board of Regents (1969) and requires a full time faculty member to report to his or her Department and Dean the scope and nature of any "gainful activities of an extensive, recurring, or continuing nature outside of his/her broad institutional- responsibilities" that are contemplated or being carried on during any period of full time employment. The UW Administrative Code provisions on which the faculty rule is based are explicit in encouraging      "broad participation by faculty in public      service or endeavors related to their fields      of interest"    (UWS 7.01). The faculty's reporting requirement is established in furtherance of general Regent responsibility for administration of a personnel system. (under Section 36.09, Stats.). At the same time, it functions in partial fulfillment of the statutory responsibilities of the Chancellor and faculty to define arid administer institutional standards for faculty peer evaluation, screening candidates for appointment. promotion and tenure, and for recommending individual, merit increases (under sec. 36.09(3) and (4). Stats.). This reporting requirement the faculty is demanding of Itself is more than is required of any other public employee group in Wisconsin. In fulfillment of the statutory responsibilities, reports filed by individual faculty members may be used for two general purposes. First, they are used to permit the Dean to ascertain whether there is any possibility that the nature or extent of a faculty member's outside activities may interfere with his or her ordinary responsibilities for teaching, research, and service.
Respondent's Exhibit L Petitioner's Exhibit 2                      page 2 of 3 _______________________________________________________ Mr. David Pritchard          -2-          July 14, 1978 It is important to note that the faculty rule requires reporting on activities outside normal institutional responsibilities; in other words, faculty members are required to report to the University concerning their activities outside their usual University work, in this sense, this rule is an intrusion into the private lives of state employees and is imposed for the convenience of the employer's administration of an effective personnel system. Second, these reports may be used for performance evaluation and for decisions on promotion and compensation. For example; While a faculty member's reported outside activity may not fall within the scope of his or her institutional responsibilities, it may nevertheless be related to it. A faculty member, particularly one in an applied scientific area, might consult from time to time in government or private industry; while this is not a University "duty," some kinds of consulting could provide the faculty member with valuable experiences and insights about the current "state of the art" which enhances the faculty member's classroom instruction and scholarly efforts. To the extent that the faculty member's contributions to the University are thus improved, information about them is relevant to performance, promotion, and compensation. Indeed, particularly in some applied areas, the extent of the demand for a faculty member's services may be a useful indicator of his or her value to the University. Our Supreme Court has held that the exceptions to the open meeting requirement likewise constitute exceptions to the public record disclosure requirement. Section 19.85(l)(c), Stats., permits closed meetings for the purpose of considering employment, promotion, compensation, or performance evaluation data of any public employee over whom the University has jurisdiction or exercises responsibility. From the foregoing discussion, we consider that the documents you have requested to inspect are components in decisions regarding performance evaluation, promotion and compensation and, as such, they are not required to be made available for public inspection. The University administration and faculty view this issue in the context of enlightened administration of a complex personnel system. Of necessity, private and public employers these days must collect, maintain and use large quantities of personal information on each of their employees. In addition to the detailed and highly personal Information which the University collects in order to administer a comprehensive fringe benefit program, the University must also collect and maintain extensive data and evaluative information on each of its faculty In order to administer properly a peer evaluation program. While the University has taken the position that certain basic information on each of its employees is open to public inspection, such as name, title, annual salary, percent time of appointment, appointment basis, and source of salary support, we strongly believe that the interests of a proper and well functioning personnel system require that other employment information must not be open. I do not think that the university policy of Wisconsin is, or should be, that its employees surrender every detail, of their personal and professional lives to the public merely because they are state employees.
Respondent's Exhibit L Petitioner's Exhibit 2                      page 3 of 3 _______________________________________________________ Mr. David Pritchard          -3-          July 14, 1978 In taking this position, the University merely reflects sound and proved practices adopted elsewhere by both the private and public sector. Indeed, the recommendations of the federal Privacy Protection Study Commission (established by the Privacy Act of 1974, P.L. 93 579) include protections for the privacy of employees and the confidentiality of their employment records (see especially Appendix 3, Employment Records). These recommendations, adopted after extensive hearings by a commission composed of state and federal legislators, and representatives from the private sector, are based in part on the recognition that an employee has a right to an expectation of confidentiality concerning most of the information maintained about him or her by the employer. it is our view that the public policy of Wisconsin does recognize that UW-Madison faculty should be treated no differently, in this regard, from individuals elsewhere in either the private or public sectors. The faculty is still accountable to the Board of Regents, and the Board is accountable to the public. In view of the interests involved, we believe that accountability through the Regents and Legislature protects the public interest as well as the faculty's expectation of confidentiality in personnel matters. I would also like to mention an additional factor. That is, even if these were documents available for public inspection, there would be a second, procedural issue. Your request appears to cover all faculty members (since you have not specified any particular faculty member(s) and seems to be made without regard to a specific time period. In some, if not all cases, the records you have requested to see are not maintained in a single file. Instead, they are normally maintained in the individual personnel folders of the faculty members. Therefore, compliance with your request would require a document by document review of the contents of hundreds or even thousand of faculty personnel folders in order to determine whether such reports have been submitted either recently or in the indefinite past. Since each folder contains information which is confidential (c.g. the Dane County Circuit Court has held that not even faculty social security numbers may be open to public inspection) or which was provided under a legal pledge of confidentiality (such as evaluations of a faculty member's scholarly efforts, which are provided by persons outside the University under a pledge of confidentiality which was necessary to obtain the evaluation), the information requested could not be provided by simpl allowing you to search these files. For these reasons, we also conclude that your request is too general and too burdensome and, therefore, it is not a reasonable request within the meaning of section 19.21(2), Stats. Sincerely, Irving Shain, Chancellor