LAW OFFICES OF PANGMAN v. STIGLER,
161 Wis.2d 828 (Ct.App. 1991)
468 N.W.2d 784
830 833 836 839
831 834 837 840
832 835 838 841
OTHER DECISIONS AND OPINIONS
LAW OFFICES OF William A. PANGMAN & ASSOCIATES,
Thomas H. STIGLER, Chief of Police for the
City of Waukesha Police Department in His
Capacity as Records Custodian, Defendant-Respondent.
Court of Appeals No. 90-1590.
Submitted on briefs March 1, 1991. Ä Decided March 27, 1991.
[fn] Petition to review denied.
APPEAL from an order of the circuit court for Waukesha county:
CLAIR VOSS, Judge.
On behalf of the plaintiff-appellant, the cause was submitted on
the briefs of Timothy J. O'Brien of Law Offices of William A.
Pangman & Associates, S.C. of Waukesha.
On behalf of the defendant-respondent, the cause was submitted on
the brief of Curt R. Meitz, city attorney of Waukesha.
Before Nettesheim, P.J., Scott and Anderson, JJ.
The Law Offices of William A. Pangman appeal from a circuit court
decision and order dismissing by summary judgment Attorney
Pangman's writ of mandamus action seeking to obtain the complete
personnel file of City of Waukesha Police Officer Jeffrey Hennen.
The circuit court ruled that the record custodian,
Chief of Police Thomas Stigler, properly withheld
certain portions of the personnel file.
The issue on appeal is whether Chief Stigler stated
sufficient reasons for withholding the disputed material.[fn1]
We conclude that Chief Stigler's reasons were legally sufficient.
Therefore, we affirm the circuit court's order dismissing
Attorney Pangman's action for mandamus and declaratory
The facts are not disputed.
On May 12, 1989, an investigator from Attorney
Pangman's office requested copies of:
[t]he personnel file of Det. Jeffrey Hennen, 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
This request was made pursuant to Wisconsin's Public
Records and Property Law, Sections 19.21-19.39, Stats.
Chief Stigler's initial response came via
Captain Gordon L. Giese on May 16, 1989.
Captain Giese denied Attorney Pangman's request, citing
Section 103.13, Stats., which governs employee
access to his or her personnel records.
On May 22, 1989, Attorney Richard Kaiser of Attorney Pangman's
office responded to Captain Giese's letter.
Attorney Kaiser argued that Section 103.13, Stats., governed
only employee access to the employee's records and did not
govern the public's right to such records under
Wisconsin's public records law.
On June 8, 1989, Chief Stigler personally responded
to Attorney Kaiser, forwarding certain portions
of Officer Hennen's personnel file.[fn4]
However, the chief declined to release the remainder
of the personnel file, stating:
However, I am not releasing the remainder of the
personnel files at this time, as the release of
the documents would be against public policy.
Both sections 103.13 and 19.85 of the Wisconsin
Statutes evince this public policy by recognizing
the legislative sensitivity to personnel matters.
I am specifically denying the remaining documents
regarding an investigative file based upon
Section 19.85(1)(c) and (f) Wis. Stats.
in that any possible benefit to be gained by granting
inspection to the documents would be far outweighed
by the substantial adverse effect the release would
likely have on the officer's reputation, his personal
safety, and would likely hinder his ability to properly
perform his functions as a police officer.
This lawsuit followed.
Attorney Pangman states in his appellate brief that he made
yet another request for Officer Hennen's full personnel file
while this action was pending in the circuit court.
Unfortunately, the appellate record does not
contain this request.
However, the appellate record does contain Chief Stigler's
February 14, 1990 response to this further request.
Moreover, Chief Stigler's appellate brief does not dispute this
case's history as presented in Attorney Pangman's brief.
We therefore accept as fact that Attorney Pangman made a further
demand for the disputed material even though the event is not
documented in the appellate record.
In his February 14, 1990 letter denying this further request,
Chief Stigler again cited to his June 8 letter quoted
above and additionally stated:
Also, there is another public policy reason, in addition
to those delineated in my letter of June 8, 1989,
for not releasing the remainder of Officer Hennen's
personnel file, which includes documents relating to
an incident. . .. The need for the City to protect
itself from a potential lawsuit resulting from the
release of some of the material from Officer Hennen's
personnel file, which are highly sensitive, outweighs
the public interest in disclosure.
Finally, both Chief Stigler and Officer Hennen
supplied affidavits in opposition to Attorney
Pangman's summary judgment motion.
These affidavits established,inter alia, that Officer Hennen
was assigned as an undercover officer in the Narcotics and
Vice Unit of the City of Waukesha Police Department during
the eighteen months preceding the date of the incident at issue.
During this time, Officer Hennen's true identity and duties were
kept confidential and he was involved with drug transactions
with persons who did not know his true identity.
Both of these affidavits refer to an event apparently referenced
in Attorney Pangman's final request which is not
included in the appellate record.
Both Chief Stigler and Officer Hennen state in their respective
affidavits that disclosure of the records concerning this
incident would jeopardize Officer Hennen's personal safety.
In reviewing the trial court's grant of summary judgment,
we must apply the standards of Section 802.08, Stats.,
in the same manner as the trial court.
Post v. Schwall,
157 Wis.2d 652, 656,
460 N.W.2d 794, 795 (Ct. App. 1990).
We will not repeat in detail this often stated methodology.
Preloznik v. City of Madison,
113 Wis.2d 112, 115-16,
334 N.W.2d 580, 582-83 (Ct. App. 1983).
Suffice it to say that summary judgment is granted when there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law.
Kruschke v. City of New Richmond,
157 Wis.2d 167, 169,
458 N.W.2d 832, 833 (Ct. App. 1990).
Our review of summary judgment rulings is de novo.
157 Wis.2d at 656,
460 N.W.2d at 796.
In addition, where, as here, the issue requires interpretation
and application of a statute to a set of undisputed facts,
the question is also one of law which we decide
without deference to the trial court's ruling.
Oshkosh Northwestern Co. v. Oshkosh Library Bd.,
125 Wis.2d 480, 485,
373 N.W.2d 459, 462 (Ct. App. 1985).
Public records are generally open to public inspection.
Wisconsin State Journal v. University of Wisconsin-Platteville,
160 Wis.2d 31, 36,
465 N.W.2d 266, 268 (Ct. App. 1990).
Section 19.31, Stats., recites a legislative presumption
in favor of public access to public records:
[I]t is declared to be the public policy of this state
that all persons are entitled to the greatest possible
information regarding the affairs of the government
and the official acts of those officers and employes
who represent them.
Further, providing persons with such information is
declared to be an essential function of a
representative government and an integral part of the
routine duties of officers and employes whose
responsibility it is to provide such information.
To that end, Sections 19.32 to 19.37 shall be construed
in every instance with a presumption of complete public
access, consistent with the conduct of governmental
The denial of public access generally is contrary to
the public interest, and only in an exceptional case
may access be denied.
Section 19.35(1), Stats., offers guidance as to when
an exceptional case exists allowing for
denial of access to a public record:
19.35(1)(a) . . . The exemptions to the
requirement of a governmental body
to meet in open session under
Section 19.85 are indicative of
public policy, but may be used as
grounds for denying public access
to a record only if the authority
or legal custodian under Section
19.33 makes a specific
demonstration that there is a need
to restrict public access at the
time that the request to inspect or
copy the record is made.
We thus look to whether an open meetings exemption
applies to the kind of public records sought in this case.
Section 19.85(1), Stats., allows a public meeting to be closed if
the governmental body is:
19.85(1)(c) Considering employment, promotion,
compensation or performance
evaluation data of any public
employe over which the governmental
body has jurisdiction or exercises
responsibility. . . . . .
19.85(1)(f) Considering financial, medical,
social or personal histories or
disciplinary data of specific
persons, preliminary consideration
of specific personnel problems or
the investigation of charges
against specific persons except
where paragraph 19.85(1)(b) applies
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
Since the above exemptions to the open meetings law pertain to
personnel-related matters, Chief Stigler properly alluded to
these exemptions in his letters of June 8, 1989 and February 14,
1990 refusing Attorney Pangman's requests.
Attorney Pangman, however, properly observes that the statutory
exemptions to public access are only indicative Ä not controlling
Ä on the question of whether access can be denied.
We so held in Oshkosh Northwestern:
We reject the board's position that a meeting properly
closed under one of the exemptions listed in Section
19.85(1), Stats., in and of itself provides sufficient
reason to deny access to records generated during a closed
125 Wis.2d at 485,
373 N.W.2d at 462 (emphasis added).
Rather, when Section 19.85, Stats., exemptions are invoked,
the custodian must make a specific determination based on public
policy reasons that there is a need to restrict public access.
Attorney Pangman complains that Chief Stigler's reasons
for denying access ran afoul of the Oshkosh Northwestern rule.
In Oshkosh Northwestern, the custodian denied a newspaper's
request for any motions and roll call votes which occurred
during a closed session of a library board meeting.
The custodian refused access, relying exclusively
on an exemption set out in the open meeting law.
Id. at 484, 373 N.W.2d at 462. As noted above, we held this
reason legally insufficient to support denial of public access:
The city attorney failed to state with the requisite
specificity and sufficiency the public policies which
would be implicated under the particular facts of this
case if access to the motions and roll call vote was
Id., 125 Wis.2d at 486, 373 N.W.2d at 463.
Chief Stigler's reasons for denying access do not suffer from the
same deficiencies as were present in Oshkosh Northwestern.
The chief did not mechanistically or, as Attorney Pangman argues,
on a "blanket" basis, invoke the applicable open records
Rather, the chief engaged in a balancing process, weighing the
acknowledged public interest to be served by disclosure against
the potential for harm to be visited upon both Officer Hennen
and the public resulting from disclosure.
As a result of this process, Chief Stigler divulged
certain information and withheld other information.
Assuming proper reasons for refusing access are given,
the law asks no more of a public records custodian.
Attorney Pangman argues that State ex rel. Bilder v. Township of
Delavan, 112 Wis.2d 539, 334 N.W.2d 252 (1983), mandates full
disclosure of Detective Hennen's personnel file.
We disagree. In Bilder, the supreme court upheld a circuit court
order permitting a newspaper to inspect certain pleadings and
documents filed in a circuit court action involving the police
chief of the town of Delavan.
The supreme court stated:
By accepting his public position Bilder has, to a large
extent, relinquished his right to keep confidential
activities directly relating to his employment as
a public law enforcement official.
Id., 112 Wis.2d at 557, 334 N.W.2d at 262.
While Attorney Pangman correctly quotes Bilder, he overlooks that
Bilder was decided under Section 59.14, Stats., governing
records maintained by a clerk of courts rather
than under the public records statute.
Id. at 553, 334 N.W.2d at 260.
Bilder recognized only two exceptions to disclosure under
(1) where there is a statute authorizing the sealing of
otherwise public records; and
(2) disclosure which infringes on a constitutional right.
Id. at 554-55, 334 N.W.2d at 260.
As such, the exceptions to disclosure under Section 59.14
are more limited than under the public records law.
This case does not concern pleadings or documents
filed in a circuit court action.
Bilder does not control.
Rather, this case is more akin to the court of appeals
recent decision in Wisconsin State Journal.
There, the chancellor of the University of Wisconsin-Platteville
denied a request for certain records pertaining to an
investigation of nepotism within the university.
The chancellor denied the request, invoking the exemption
provisions of Section 19.85(1)(f), Stats., and the
reputational interests of the target of the investigation.
The court of appeals, applying the Oshkosh Northwestern test,
held that these reasons were sufficient.
Wisconsin State Journal,
160 Wis.2d at 39,
465 N.W.2d at 269.
The court noted that:
To demand that the custodian provide additional
justification for his denial would also require that he
divulge the reasons that the documents would have a
substantial adverse effect on Al-Yasiri's reputation.
This would require detailing the contents of the documents
sought to be protected from disclosure.
This requirement would eliminate the protection afforded
the documents by virtue of being exempted from the public
The same logic applies here.
If we were to hold that Chief Stigler's reasons are insufficient,
we would eliminate the very protection which the law accords
to the material.
The legislature has chosen to allow for nondisclosure of certain
public records in limited circumstances if the custodian gives
adequate reasons for withholding the information.
This case qualifies as one of those limited circumstances under
the statutory exemptions and the reasons given by Chief Stigler
are sufficient under the statute.[fn5]
This case, however, is not governed by statutory
considerations alone, for Wisconsin's public records law
also represents an embodiment of the common law.
112 Wis.2d at 552,
334 N.W.2d at 259.
While the common law also recognizes the public's right to
inspect public documents and records, this right is not absolute.
State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681,
137 N.W.2d 470, 474 (1966).
There may be situations where the harm done to the public
interest may outweigh the right of a member of the public
to have access to particular public records or documents;
the one must be balanced against the other in determining
whether to permit inspection.
This exercise is performed on a case-by-case basis.
Id. at 682, 137 N.W.2d at 475.
Here again, Chief Stigler's concerns for Officer Hennen's
reputational interests, ability to continue to effectively
perform as a police officer, and the potential for liability
on the part of the city if disclosure were permitted were
Of paramount importance, however, in our judgment, was
the chiefs expressed concern for Officer Hennen's safety.
The withheld materials concern Officer Hennen's eighteen-month
role as an undercover officer in the Narcotics and Vice Unit
of the Waukesha Police Department.
During that time, he was involved in drug transactions
with persons who did not know his true identity.
Disclosure of the withheld materials would "blow" Officer
Hennen's cover and place him at personal risk.
Chief Stigler recognized this risk and recited it among his
reasons for denying Attorney Pangman access to this information.
Although Chief Stigler stated additional reasons for denying
access, we consider his legitimate consideration for
Officer Hennen's safety to be not only proper and
compelling, but also controlling on this question.[fn6]
The public's "right to know" does not extend to
jeopardizing the lives and safety of its police officers.
By the Court. Ä Order affirmed.
[fn1] The circuit court also refused to order Chief Stigler
to turn over the disputed materials after the
court conducted an in camera inspection
of Officer Hennen's personnel file.
Attorney Pangman raises no issue on appeal regarding
this aspect of the circuit court's ruling.
[fn2] Attorney Pangman's original action sounded in mandamus.
Within the context of that action, Attorney Pangman
brought a "motion for declaratory judgment."
The city objected to this procedure, contending that
the mandamus petition did not embrace an action for
Alternatively, the city asked the court to construe
Attorney Pangman's motion as the equivalent
of a motion for summary judgment.
Attorney Pangman joined in this latter suggestion.
Accordingly, the court addressed the issue in
the posture of a summary judgment proceeding.
Although the city did not move for summary judgment,
if it appears that the party against whom summary
judgment is asserted is entitled to such relief,
the court may grant such relief.
See Section 802.08(6), Stats.
[fn3] Attorney Pangman referred to Officer Hennen
as a "detective."
Chief Stigler used the term of "Officer Hennen."
We use the chiefs designation of Officer Hennen's
rank for purposes of this opinion.
[fn4] These included personnel data sheet, clothing
allowance, appointment of officer, termination of
probation, loss of an off day, review of property
damage report involving officer, citizen
complaint/excessive force, commendation
from citizen, and performance evaluations.
[fn5] Because we conclude that Chief Stigler properly and
sufficiently invoked the statutory exemptions set out
in Section 19.85, Stats., we need not address whether
the chiefs additional invocation of Section 103.13,
Stats., governing employee access to his or her own
personnel records was appropriate.
This issue is presently pending on certification
to the Wisconsin Supreme Court.
See Law Offices of William A. Pangman & Assocs.
v. Zellmer, nos. 90-1609 and 90-1630.
[fn6] Therefore, we also conclude that this case is not
governed by the pending matter on certification
to the Wisconsin Supreme Court.
See footnote 5.
DECISIONS AND OPINIONS