BUTLER
GJS
HOME
MAIL

VILLAGE OF BUTLER v. COHEN,
163 Wis.2d 819 (Ct.App. 1991)
472 N.W.2d 579

823 824 825 826 827 828 829 830 831 832 833

VILLAGE OF BUTLER,
a municipal corporation,
Plaintiff-Appellant,

v.

Barry S. COHEN, Defendant-Respondent.[fn]

VILLAGE OF ELM GROVE,
a municipal corporation,
Plaintiff-Appellant,

v.

Dudley A. WILLIAMS, Defendant-Respondent.[fn]



Court of Appeals  No. 90-1062.

Oral argument January 15, 1991. Ä  Decided June 19, 1991.

[fn] Petition to review denied.
 
TOP
PREVIOUS
NEXT PAGE 823
 
APPEAL from an order of the circuit court
for Waukesha county:

HAROLD J. WOLLENZIEN, Judge. Reversed.

On behalf of the plaintiffs-appellants there were
briefs by Linda de la Mora and Paul E. Alexy
of de la Mora & de la Mora of Elm Grove.

There was oral argument by Linda de la Mora.

On behalf of the defendants-respondents there
was a brief and oral argument by Timothy J. O'Brien of William A. Pangman & Associates, S.C. of Waukesha.

Before Nettesheim, P.J., Brown and Scott, JJ.

SCOTT, J.

This declaratory judgment action involves the Public Records Law, Sections 19.31 through 19.39, Stats.

The villages of Butler and Elm Grove appeal from an order denying their motion for summary judgment and compelling them to disclose certain police officer personnel files.

The villages argue that the trial court failed
to examine the public policy balancing test
conducted by the record custodians.

We agree.

We reverse because public policy weighs
in favor of nondisclosure.[fn1]

Attorneys Barry Cohen and Dudley Williams
("defendants" or "requesters") requested
from the villages of Butler and Elm Grove,
respectively, the personnel files of the
police officers who had arrested two of
their clients for driving while
intoxicated.[fn2]
 
TOP
PREVIOUS
NEXT PAGE 824
 
Specifically, they requested from the files:

   any and all disciplinary actions taken or contemplated,
   including but not limited to, citizen complaints,
   reprimands, suspensions, and investigations;
   any and all performance reviews, whether for
   promotional purposes or otherwise.

The requests were made pursuant to Section 19.35, Stats.

The villages released parts of the files but denied,
in writing, most of the requested information.

In refusing disclosure, both villages claimed that the harm frompermitting access to the records outweighed the strong presumption in favor of public access to them.

Both villages cited numerous justifications
for their position.

Then, pursuant to Section 806.04, Stats., the villages asked the trial court to determine whether disclosure
is mandated under the public records law.

The two cases were consolidated upon stipulation of the
parties and the villages moved for summary judgment.

Without reviewing the public policy balancing test the custodians had undertaken in making their determination
to withhold the files, the trial court denied summary judgment because the villages did not state a clear statutory exception exempting police personnel
files from disclosure.

It also commented that, although this was not the issue before the court, the "better practice [would be] to
have an in camera inspection of the file rather than complete disclosure."

The trial court then ordered the villages to turn over
the records to the defendants, but stayed that
portion of the order pending this appeal.
 
TOP
PREVIOUS
NEXT PAGE 825
 
This case involves the application of the public
records law to a set of undisputed facts.

The application of a statute to a particular set of facts
presents a question of law on which we owe no deference
to the trial court's conclusions.

Oshkosh Northwestern Co. v. Oshkosh Library Bd.,
125 Wis.2d 480, 485,
373 N.W.2d 459, 462 (Ct. App. 1985).

The declared public policy of this state
favors liberal access to public records.

Section 19.31, Stats.  Except as otherwise provided by law, any requester has a right to inspect any record, Section 19.35(1)(a), Stats., or to make or receive
a copy of any written record.

Section 19.35(1)(b).

The general presumption is that public records shall be open to the public unless there exists:

     (1)  a clear statutory exception;

     (2)  a common law limitation; or

     (3)  an overriding public interest in
          keeping the public record confidential.

Hathaway v. Joint School Dist. No. 1,
116 Wis.2d 388, 397,
342 N.W.2d 682, 687 (1984).

When faced with a demand for inspection, the records custodian must balance the public's right of inspection against the public interest in nondisclosure.

Oshkosh Northwestern Co.,
125 Wis.2d at 483,
373 N.W.2d at 461.

The denial to a written request must be in writing,
Section 19.35(4)(b), Stats., and must be accompanied
by a statement of the specific public policy
reason for the refusal.

Journal/Sentinel, Inc. v. Aagerup,
145 Wis.2d 818, 822,
429 N.W.2d 772, 774 (Ct. App. 1988).

A primary reason for requiring the custodian to
state specific policy reasons for refusal is to
provide thecourt with a basis for its review.

Mayfair Chrysler-Plymouth, Inc. v. Baldarotta,
154 Wis.2d 793, 798,
453 N.W.2d 922, 925 (Ct. App. 1990),

rev'd on other grounds,
 

162 Wis.2d 142,
469 N.W.2d 638 (1991).
 
TOP
PREVIOUS
NEXT PAGE 826
 
Although the custodian is not required to provide
a detailed analysis of the record and why public
policy directs that it must be withheld,

Aagerup,
145 Wis.2d at 823,
429 N.W.2d at 774,

mere legal conclusions that a record is "confidential"
or that its release would be "contrary to the public interest" insufficiently justify refusal because
such reasons lack specificity.

See Baldarotta, 154 Wis.2d at 799, 453 N.W.2d at 925.

When reviewing a denial of inspection, the trial court must determine whether the custodian's denial was made with the requisite specificity and, if so, whether the reasons given are sufficient to outweigh the strong
public policy favoring disclosure.

See

Aagerup,
145 Wis.2d at 821-22,
429 N.W.2d at 773.

As we have stated, the public's presumptive right to
inspect public records may have to yield if outweighed
by the public interest in nondisclosure.

Oshkosh Northwestern Co.,
125 Wis.2d at 483,
373 N.W.2d at 461.

Here, the villages each issued detailed written denials
of the defendants' requests for information from
the police officers' personnel files.

Instead of reviewing these reasons and undertaking the
required balancing of interests, however, the trial court
ordered disclosure simply because the villages could not
state a specific statutory exception which exempts police
personnel files from disclosure.

Relying on Hathaway, the villages argue that a
statutory exception is but one of three
reasons disclosure might be denied.

Hathaway,
116 Wis.2d at 397,
342 N.W.2d at 687.

The villages assert that failing to take into account either of the two other reasons a common law
limitation or an overriding public interest
constitutes reversible error.
 
TOP
PREVIOUS
NEXT PAGE 827

As an initial matter, the requesters state that the
villages refused to permit an in camera inspection.

The requesters contend that without an in camera inspection, the court had "no basis for examining
the common law limitations nor for deciding whether
there was an overriding public interest in keeping
the public record confidential."

We disagree.

The issue here is not the contents of these particular officers' personnel files, but the personnel files
of police officers in general.

We thus hold that if the policy reasons the custodian lists for nondisclosure are of sufficient specificity,
and if those reasons override the presumption in favor
of disclosure, an in camera inspection is unnecessary.

We now turn to the propriety of the trial court's ruling.

Our inquiry is twofold.

Aagerup, 145 Wis.2d at 821, 429 N.W.2d at 773.

We first determine whether the custodian's denial
was made with the specificity required by
Section 19.35, Stats., and case law.

Id.

To meet the specificity requirement, the custodian
must give a public policy reason that the
record warrants confidentiality.

Id. at 823, 429 N.W.2d at 774.

If the requisite showing of specificity is made,
we then determine whether the reasons given for withholding are sufficient to outweigh the
strong public policy favoring disclosure.

Id. at 821-22, 429 N.W.2d at 773.

We conclude both that the villages made a sufficient showing of specificity and that those specific reasons
are sufficient to outweigh the countervailing public policy favoring disclosure.
 
TOP
PREVIOUS
NEXT PAGE 828

We first address the specificity requirement.

Here, the villages issued substantially similar
detailed written denials of the defendants'
requests for information from the police
officers' personnel files.[fn3]

The custodians identified numerous public policy considerations supporting the denials, including
the officers' privacy and reputational interests;
fair, efficient and effective law enforcement;
and officer safety.

The custodians did not merely recite statutory
references or offer unsupported legal conclusions.
 
TOP
PREVIOUS
NEXT PAGE 829

We hold that the reasons given for denying
disclosure were sufficiently specific.

Our next inquiry, then, is whether the reasons given,
although adequately specific, are sufficient to outweigh
the strong public policy favoring disclosure.

Id.

Whether the harm to the public interest by disclosure
is outweighed by the public interest in
inspection is a question of law.

Id. at 825, 429 N.W.2d at 775.

We review questions of law ab initio.

Id. at 826, 429 N.W.2d at 775.

We conclude the reasons are sufficient.

The villages argue that, although this case
is not governed by a "clear statutory exception,"

Hathaway,
116 Wis.2d at 397,
342 N.W.2d at 687,

the legislature repeatedly has recognized
a public policy interest in denying access
to personnel files of public employees.

We agree.

For example, the Open Meetings Law, Section 19.85,
Stats., permits closed sessions for consideration
of matters similar to those sought to be disclosed
in this record request.[fn4]

Significantly, the legislature has expressly provided
in the Public Records Law that "[t]he exemptions to
the requirement of a governmental body to meet in
open session under Section 19.85 are indicative
of public policy."

Section 19.35(1)(a), Stats. (emphasis added).
 
TOP
PREVIOUS
NEXT PAGE 830

Furthermore, the supreme court has recognized that protecting the reputations of individuals is a public policy interest and has concluded that

        " the legislative policy expressed in [the
          Open Meetings Law] 'carries over to the
          field of inspection of public records
          and documents.' "

Newspapers, Inc. v. Breier,
 89 Wis.2d 417,
430, 279 N.W.2d 179, 185 (1979)

(quoting State ex rel. Youmans v. Owens,
                       28 Wis.2d 672, 685,
                       137 N.W.2d 470, 476 (1965)).[fn5]

The village of Butler argues that Chapter 230, Stats., governing state employment relations, provides another example in which the legislature has recognized the need for confidentiality in certain personnel matters.

It cited as public policy interests against disclosure
its need to hire and retain competent personnel who
will furnish services to its citizens as fairly, efficiently and effectively as possible and to
ensure its employees opportunities for satisfying
careers and fair treatment based on the
value of each employee's services.

The legislature has declared the same
to be the policy of this state.

Sections 230.01(1) and (2), Stats.

To that end, Section 230.13, Stats., permits records of
certain personnel matters, such as evaluations and
disciplinary actions, to be kept closed.

The requesters counter that Section 230.13,
Stats., is inapplicable because police officers
are municipal, not state, civil servants and that
Section 62.13(5)(d), Stats., mandates open
disciplinary hearings for police officers.
 
TOP
PREVIOUS
NEXT PAGE 831

We deem this argument unavailing because, as the villages
note, it is the public policy behind the statute that the
custodians relied upon in making their determinations.

We conclude that disclosure of the records at issue here
would inhibit the goals sought to be advanced by the
villages and Sections 230.01(1) and (2), Stats.

Likewise, Section 103.13, Stats., is 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.

Section 103.13(6).

Some of these matters include investigations into
criminal activities; letters of reference; portions
of test documents; materials used for staff management planning such as evaluations, bonus plans, promotions
and job assignment; personnel information about another person; and records relating to a claim pending between
an employee and an employer.

Id.

We agree with the villages that disclosure of the requested records likely would inhibit a reviewer
from making candid assessments of their employees
in the future.

We also agree, as Elm Grove asserts, that opening
these records likely would have the effect of
inhibiting an officer's desire or ability to
testify in court because he or she would face cross-examination as to embarrassing personal matters.

A foreseeable result is that fewer qualified people would
accept employment in a position where they could expect
that their right to privacy regularly would be abridged.

We conclude, therefore, 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.

We are satisfied that the villages have specifically
established a public interest against disclosure which
is of sufficient weight to override the presumption
that the records should be released.

By the Court. Order reversed.
 
TOP
PREVIOUS
NEXT PAGE 832
 

[fn1]
The trial court failed to apply the public policy
balancing test to the facts of this case and normally
we would remand to allow it to do so.

However, because the balancing test is a question of
law, Journal/Sentinel, Inc. v. Aagerup, 145 Wis.2d 818,
825, 429 N.W.2d 772, 775 (Ct. App. 1988), it is
unnecessary to remand this case.

[fn2]
The defendants are attorneys for the law firm of
William A. Pangman & Associates, which is a plaintiff
in similar cases currently on appeal in
District I Court of Appeals.

The District I appeals involve several consolidated
cases from the cities of Milwaukee, Wauwatosa and
Glendale dealing with the same issue as in this case.

The District I panel certified these cases
to the Wisconsin Supreme Court.

The certification was denied.

[fn3]
Among the reasons the villages gave
were that disclosure would:

(1)  run counter to the legislature's recognition,
     indicated in Section 19.85, Stats., of the
     need to keep personnel records confidential
     "to maintain the reputational and privacy
     interests of the individual employe;"

(2)  provide the requester with greater
     access than the officer himself enjoys;

(3)  subvert the villages' policy of ensuring
     their employees "opportunities for satisfying
     careers and fair treatment" based on the
     value of each employee's service;

(4)  impinge upon the officers' right to privacy;

(5)  inhibit the villages' ability to hire and
     retain competent personnel and would diminish
     the fair, efficient and effective rendering
     of services;

(6)  prevent a reviewer from freely making candid
     assessments of an individual officer's
     strengths and weaknesses, if that information
     might later be used publicly against the
     officer, perhaps in a life-threatening
     situation;

(7)  discourage officers from testifying in court,
     thus frustrating the public interest in
     prosecution of law violators;

(8)  run counter to the villages' interests in
     maintaining the confidentiality of its
     personnel records, an interest similar to
     that of state employee personnel matters
     which are closed to the public under Section
     230.13, Stats.; and

(9)  aid in the circumvention of rules against
     pretrial discovery in the prosecution of
     traffic offenses.

[fn4]

Section 19.85(1), Stats., provides in relevant part:

19.85(1)  A closed session may be held for
          any of the following purposes:
          . . .

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

19.85(1)(f)  Considering . . .
             personal histories or
             disciplinary data of
             specific persons,
             preliminary consideration
             of specific personnel
             problems or the
             investigation of charges
             against specific persons
             . . . which, if discussed
             in public, would be
             likely to have a
             substantial adverse
             effect upon the
             reputation of any person
             referred to in such
             histories or data, or
             involved in such problems
             or investigations.

[fn5]

State ex rel. Youmans v. Owens,
 28 Wis.2d 672,
137 N.W.2d 470 (1965),

was construing Section 14.90, Stats.,
then the Open Meetings Law.

Since 1965, the Open Meetings Law has been renumbered,
repealed, and finally recreated as Chapter 19,
Subchapter IV, Stats.

Substantively, the current Section 19.85(1)(c) and (f),
Stats., is the same as Section 14.90(3)(b) and (e) of
the old statute.
TOP
PREVIOUS
NEXT PAGE 833
 



DECISIONS AND OPINIONS citing

VILLAGE OF BUTLER v. COHEN,
163 Wis.2d 819 (Ct.App. 1991)
472 N.W.2d 579