KLEIN v. WISCONSIN RESOURCE CENTER, (Ct.App. 1998)
MARCIA A. KLEIN, PLAINTIFF-RESPONDENT,
WISCONSIN RESOURCE CENTER,
PHIL MACHT and
ATTORNEY GENERAL JAMES E. DOYLE,
RONALD A. KEITH, SR., and
STEPHEN J. WEISSENBERGER,
COURT OF APPEALS OF WISCONSIN. Case No.: 97-0679.
Opinion Released: April 1, 1998.
Opinion Filed: April 1, 1998.
Recommended for publication in the official reports.
APPEAL from a judgment of the circuit court for
Winnebago County: WILLIAM H. CARVER, Judge. Affirmed.
Before Snyder, P.J., Brown and Anderson, JJ.
Ronald A. Keith, Sr., and Stephen J. Weissenberger
are individuals committed under Chapter 980, Stats.,
to the Wisconsin Resource Center (WRC).
They appeal from a trial court judgment denying
their requests for the personnel file of
Marcia A. Klein, an employee of WRC.
Keith and Weissenberger bring claims that:
(1) they have the right to "un-privileged,
non-confidential and available information"
in Klein's personnel file regardless of
their status as "requesters";
(2) the record custodian did not conduct
a proper balancing test; and
(3) proper venue for this case was Dane County
and the Winnebago County Circuit Court did
not have jurisdiction over the case.
First, we conclude that Keith and Weissenberger are
proper requesters under the open records law.
However, we extend the reasoning of
Woznicki v. Erickson,
202 Wis.2d 178,
549 N.W.2d 699 (1996),
and conclude that Klein's circuit court action
properly challenged WRC's initial decision to
release a portion of her personnel file.
We agree with the circuit court's finding that the
record custodian properly balanced the competing
interests when it determined that the release of an
employee's personnel records would jeopardize security
at the institution and infringe on the privacy rights
of individuals employed by WRC.
Finally, because Klein's challenge to the release
was brought in Winnebago County, venue was
appropriate and we affirm.
The WRC is a state facility which has two functions:
to provide mental health treatment for inmates from
other state prisons and to provide treatment for
individuals committed under Chapter 980, Stats.,
as sexually violent persons.
Keith and Weissenberger are both patients
committed as sexually violent persons.
Keith filed a request with the registrar of WRC for
"[a]ny and all personnel files (with omission of
addresses, phone numbers, family members and other
confidential material) of . . . [Klein]."
Shortly thereafter, Klein was informed by WRC
that it intended to provide Keith with
at least a portion of her file.
At some point after Klein was told this, Weissenberger
also filed a request for her personnel file.[fn1]
Klein then commenced an action in Winnebago County
Circuit Court naming WRC, its registrar, its warden,
the State and Keith as defendants.
She claimed that her personnel file was not an open
record and therefore not subject to disclosure.
She also asserted that she would be irreparably
harmed if the file were released.
The court granted a temporary restraining order
which prohibited disclosure of the file.
In his answer Keith counterclaimed, sought to join
Weissenberger in the action and also filed a
counterclaim by Weissenberger.
The State responded to Klein's complaint by admitting
that it intended to release a portion of her personnel
file, but that it would remove any portion of the file
that would endanger Klein or her family.
The State also offered to submit the personnel file to
Klein's attorney and to the court for review and a
determination of which records should be released.
At the first hearing on Klein's complaint the parties
agreed to join Weissenberger as a defendant and to
dismiss the counterclaims of Keith and Weissenberger.
The court extended its temporary restraining order
prohibiting disclosure of the file until
a final judgment was rendered.
The State subsequently filed an amended answer which
indicated that although it had initially intended to
comply with the public records request for Klein's
personnel file, it had since received additional
requests for the personnel files of various other
employees and had reconsidered.
In its amended answer, the State claimed that the "need
to maintain institutional security and concern for the
safety and well-being of WRC staff and their families
outweighs the public interest in providing access to
these files and . . . disclosure . . . would constitute
an unwarranted invasion of the employees' personal
After reviewing de novo the record request, the
circuit court agreed with the State's position.
Keith and Weissenberger appeal.
We begin with the issue of whether Keith and
Weissenberger are proper requesters.
A "requester" is defined in Section 19.32(3), Stats.,
as "any person who requests inspection or copies of a
record, except an incarcerated person."
An incarcerated person is "a person who is
incarcerated in a penal facility."
While Keith and Weissenberger are confined at WRC,
their confinement is by virtue of a civil commitment
procedure and is for the purposes of treatment and
the protection of the public.
State v. Carpenter,
197 Wis.2d 252, 271,
541 N.W.2d 105, 112 (1995), cert. denied,
117 S.Ct. 2507 (1997).
They are not "incarcerated"; therefore, the provisions
of Section 19.32(3), which prohibit incarcerated
persons from being proper requesters, are not
We conclude that Keith and Weissenberger
are proper requesters.
When the legislature amended the open records law to
prevent incarcerated persons from obtaining these
types of records, it failed to include those
individuals committed pursuant to Chapter 980, Stats.
The next issue we address is whether Klein's challenge
to the release of this information is proper.
Armada Broadcasting, Inc. v. Stirn,
183 Wis.2d 463, 467-68,
516 N.W.2d 357, 358 (1994),
the supreme court held that an individual has a right
to intervene in an action which seeks to compel
disclosure of an investigative report in
which the intervenor is a subject.
The court concluded that such an individual "meets
the criteria for intervention as of right"
pursuant to Section 803.09(1), Stats.,
183 Wis.2d 467,
516 N.W.2d at 358,
and specified that "the time for [the intervenor] to
protect his interest is [before the information is
released]," see id. at 475, 516 N.W.2d at 361.
202 Wis.2d at 193,
549 N.W.2d at 705,
the court further explained the right of an individual
to protect his or her privacy interests.
There the court determined that a record custodian,
in that case a district attorney, could not release
records without first notifying the individual who
was the subject of the records.
The court held that "an individual whose privacy or
reputational interests are implicated by the . . .
potential release of his or her records has a right to
have the circuit court review the . . . decision to
release the records . . . ."
The court also recognized that in such a case the
official who has determined that release is appropriate
must, after notification, allow a reasonable amount of
time for the affected individual to appeal.
While the Woznicki case was specifically concerned with
the release of records by a district attorney, we read
the supreme court's reasoning in that case as being
applicable in other situations.
Case law preceding the Woznicki decision provided
for review of a record custodian's decision
in a circuit court.
Village of Butler v. Cohen,
163 Wis.2d 819, 827,
472 N.W.2d 579, 582 (Ct. App. 1991).
We read Woznicki as standing for the general
proposition that when access is sought under the
open records law to any records which pertain to an
individual, the "targeted" individual has a right to
notification if the record custodian agrees to release
the information and the right to seek circuit court
review of that decision.
202 Wis.2d at 193,
549 N.W.2d at 705.
In the instant case, the records sought by Keith
and Weissenberger are personnel records
which are kept by an employer.
For employees in the private sector, personnel records
are not accessible under the open records law.
However, because Klein is employed by WRC, a state
facility, her personnel records are covered by
Section 19.32(2), Stats.
(a record is any material which has been created
or is being kept by an authority).[fn2]
As a state employee at a state-operated institution,
Klein and others similarly situated have a legitimate
concern about the release of information contained in
files created by their employer.
Our extension of the reasoning of Armada, Village of
Butler and Woznicki permits a state employee who is the
"target" of a request for personnel records to
challenge a record custodian's decision
to release such information.
This procedure is in keeping with the policy and
purpose underlying the open records law:
"To provide the broadest possible access of
the public to public records.
However, the right to public access is not
absolute. . . . [An individual] has important
interests in privacy and reputation that
warrant protection under our law."
202 Wis.2d at 193-94,
549 N.W.2d at 705-06.
We adopt the procedure outlined in Woznicki
and apply it to public sector employers.
Once a request for a record is made, the employer
as record custodian is required to balance the
public policy of maintaining open records
against the factors outlined in
Section 19.35(1)(am)2, Stats.
After balancing the competing interests, if the
employer determines that the potential damage
incurred by release of the personnel information
outweighs the public's interest in open records,
the information should not be disclosed.[fn3]
See Section 19.35(1)(am).
However, if a decision is made to release any portion
of the requested information, the individual whose
privacy interests are affected must be notified and
given an opportunity to appeal the decision.
Woznicki, 202 Wis.2d at 193, 549 N.W.2d at 705.
Having outlined the applicable procedure, an issue yet
before us is whether the circuit court's determination
that the records should not be released appropriately
balanced the competing interests in this case.
Whether harm from disclosure outweighs the public
interest in permitting broad access to public records
is a question of law to be reviewed de novo.
See id. at 192, 549 N.W.2d at 705.
We consider the competing interests.
In denying access to the requested information,
the record custodian stated:
Records may be withheld from disclosure when
anoverriding public interest in keeping a
public record confidential outweighs the
strong presumption in favor of public access.
. . . Having weighed those competing
interests in connection with your requests
for personnel files of WRC staff, I have
concluded that the concern for the safety and
well-being of WRC staff and their families
and for institutional morale outweigh the
general rule in favor of access to government
records and that disclosure of their
personnel files would constitute an
unwarranted invasion of the employees'
The letter then detailed numerous concerns with the
release of employees' personnel records, but the most
(1) a chilling effect on employees' willingness to
take action relating to patient misconduct;
(2) the possibility that release would subject
employees and their families to a substantial
risk of harassment or other jeopardy;
(3) a loss of morale and potential inhibition
on WRC's ability to hire and retain
competent personnel; and
(4) jeopardizing employee safety and compromising
WRC's interest in maintaining a safe
and secure environment.
Juxtaposed against these concerns was recognition
that the purpose of the open records law
must also be considered.
However, after weighing that purpose, the record
custodian informed Keith that "granting your
request would in no way further the purpose
of the Public Records Law.
The information you seek neither informs the
electorate, promotes better self-governance, nor
concerns official acts of government employees.
There is little, if any, general public interest in
allowing access to personal information about
In its decision, the circuit court
adopted this reasoning.
Based on our de novo review, we agree that the
record custodian correctly laid out the opposing
considerations and determined that a balancing of
those competing interests weighed more heavily on
the side of maintaining confidentiality.
Being employed in the public sector is not
a forfeiture of all rights to privacy.
The denial of Keith's request for Klein's personnel
records was appropriate and is upheld.
The final issue raised is whether venue
was proper in Winnebago County.
Keith and Weissenberger argue that the proper venue
for this action is Dane County pursuant to
Section 801.50(3), Stats.[fn4]
They contend that the record custodian was required
"as soon as practical and without delay"
to satisfy their request for Klein's personnel records
or to deny the request in whole or in part.
Had this occurred, they reason, they would then have
brought a writ of mandamus in Dane County to
compel the production of the records.
("All actions in which the sole defendant is the state
. . . shall be venued in Dane county . . . .");
Fox v. Bock,
149 Wis.2d 403, 416,
438 N.W.2d 589, 595 (1989).
Keith and Weissenberger's analysis ignores the
notification requirement outlined in Woznicki.
When the record custodian received Keith's request for
Klein's personnel records and initially determined that
the requested information would be released, the
custodian notified Klein, the "target" of the request.
Once the record custodian informed her of the decision
to release the information, Klein's recourse was to
challenge the decision and seek circuit court
review of the record custodian's decision.
Because Klein's challenge to the decision of the record
custodian to release her personnel records arose in
Winnebago County, venue there was proper.
See Section 801.50(2)(a), Stats.
(unless otherwise provided by statute, venue
in special proceedings may be in the
county "where the claim arose").[fn5]
By the Court. Ä Judgment affirmed.
[fn1] It is not clear from the record whether
Weissenberger's request was made before the
commencement of this action.
However, his name was not included in the
original complaint filed by Klein.
[fn2] Although the court in
Village of Butler v. Cohen,
163 Wis.2d 819, 831,
472 N.W.2d 579, 584 (Ct. App. 1991),
held that the personnel records of village
police officers were not subject to
disclosure under the public records law,
the supreme court concluded in
Woznicki v. Erickson,
202 Wis.2d 178, 195,
549 N.W.2d 699, 706 (1996),
that the open records law "does not provide a
blanket exemption for either . . . personnel
records or . . . telephone records."
[fn3] In such a case, the requester may seek review
of that decision through a writ of mandamus.
See Section 19.35(4)(b), Stats.;
Section 19.37(1), Stats.
[fn4] The relevant portion of Section 801.50(3),
Stats., provides: "All actions in which the
sole defendant is the state, any state board
or commission or any state officer, employe
or agent in official capacity shall be venued
in Dane county unless another venue is
specifically authorized by law."
[fn5] Keith also raises an issue as to whether the
balancing test was properly carried out by
the record custodian.
As we understand his argument, he questions whether
the record custodian properly denied his request
or whether the denial was actually made by
the attorney general's office.
He argues that "the injunctive issue had to be fully
satisfied before the records custodian's
response could be properly made."
While WRC's decision to release the information was
reconsidered after Klein commenced this action, the
circuit court's review of any authority's decision
to release or withhold information is de novo.
202 Wis.2d at 192,
549 N.W.2d at 705.
Therefore, once circuit court review commences, earlier
determinations by any other authority are immaterial.