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LAW OFFICES OF PANGMAN v. STIGLER,

161 Wis.2d 828 (Ct.App. 1991)

468 N.W.2d 784


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LAW OFFICES OF William A. PANGMAN & ASSOCIATES, Plaintiff-Appellant,[fn] v. 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. Decided March 27, 1991. [fn] Petition to review denied.
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                                       Page 830



APPEAL from an order of the circuit court for Waukesha county: 

CLAIR VOSS, Judge.



Affirmed.



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.



NETTESHEIM, P.J.



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.
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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

relief.[fn2]



FACTS



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

   or otherwise.[fn3]
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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.
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   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.
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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.



ANALYSIS



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.



See



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.



Post,

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.
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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

     business.



     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.
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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

               or investigations.



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  not controlling

 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

     meeting.



125 Wis.2d at 485,

373 N.W.2d at 462 (emphasis added).
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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.



Id.



Attorney Pangman complains that Chief Stigler's reasons

for denying access ran afoul of the Oshkosh Northwestern rule.





We disagree.



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

   granted.



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

exemptions.



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.
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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

Section 59.14:



     (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.
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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

     records law.



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]
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This case, however, is not governed by statutory

considerations alone, for Wisconsin's public records law

also represents an embodiment of the common law.



Bilder,

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.



Id.



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

relevant considerations.



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]
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The public's "right to know" does not extend to

jeopardizing the lives and safety of its police officers.



By the Court.  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

          declaratory relief.



          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.


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