WOZNICKI v. ERICKSON,
192 Wis.2d 710 (Ct.App. 1995)
531 N.W.2d 465
Thomas J. WOZNICKI,
Dennis W. ERICKSON,
Assistant District Attorney,
Court of Appeals No. 94-2795.
Submitted on briefs February 28, 1995.
Decided March 21, 1995.
[fn] Petition to review granted.
APPEAL from an order of the circuit court for St. Croix County:
C. A. RICHARDS, Judge. Reversed and cause remanded.
For the defendant-appellant, the cause was submitted
on the briefs of Catherine R. Quiggle of
Rodli, Beskar, Boles, Krueger, S.C. of River Falls.
For the defendant-respondent, the cause was submitted on the
brief of Dennis Erickson, assistant district attorney.
Before Cane, P.J., LaRocque and Myse, JJ.
Thomas Woznicki appeals the trial court's denial of his request
for a temporary injunction prohibiting the St. Croix County
District Attorney from releasing his personnel and telephone
records, which are in the district attorney's custody.
Woznicki contends that the district attorney does not
have the discretion to release these records.
Because we conclude that personnel records are an exception
to the public records law and that Woznicki's telephone records
are private records, we reverse the trial court's order.
In April 1994, Woznicki was charged with having
consensual sex with a minor over the age of sixteen
in violation of Section 948.09, STATS.
A criminal investigation ensued, by which the St. Croix County
District Attorney's office subpoenaed Woznicki's complete
personnel file from his employer, the New Richmond School
District, and his personal telephone records.
In July 1994, the district attorney
dismissed the case against Woznicki.
Subsequently, Woznicki moved the trial court for an order
prohibiting the district attorney from releasing
his personnel and telephone records.
The trial court denied this motion based on the premise
that as custodian of the records, the district attorney
had sole discretion to decide whether to release them.
After the trial court's order denying Woznicki's motion,
the district attorney notified him that there had been
two requests for his criminal investigation file,
which included the records in question.
The district attorney informed Woznicki that
he intended to release this file.
Consequently, Woznicki moved the trial court for a
temporary injunction prohibiting the district attorney
from releasing his personnel and telephone records.
The trial court denied the motion for a temporary injunction,
but ordered that if Woznicki filed an appeal, the district
attorney would be enjoined from releasing the records
until the issue is resolved.
Woznicki appeals the trial court's decision denying
his motion for a temporary injunction.
Our analysis of the district attorney's custodial discretion as
to the release of Woznicki's records involves an analysis of the
public records statute, Section 19.35, STATS. Thus, the issue in
this case involves application of a statute to undisputed facts,
a question of law that this court renews independently of the
trial court's determinations.
State v. Williams,
104 Wis.2d 15, 21-22,
310 N.W.2d 601, 604-05 (1981).
Furthermore, a claim that an otherwise authorized procedure
violates public policy raises issues of law that
we determine independently from the trial court.
Enright v. Board of Sch. Directors,
114 Wis.2d 124, 127,
338 N.W.2d 114, 116 (Ct.App. 1983), aff'd,
118 Wis.2d 236,
346 N.W.2d 771 (1984).
There is a presumption that the public has the right
to inspect public records unless there is an exception.
State ex rel. Richards v. Foust,
165 Wis.2d 429, 433,
477 N.W.2d 608, 609 (1991).
Our supreme court articulated the rule as:
[T]he general presumption of our law is that public
records shall be open to the public unless there is a
clear statutory exception, unless there exists a limitation
under the common law, or unless there is an
overriding public interest in keeping the public
Hathaway v. Joint Sch. Dist. No. 1,
116 Wis.2d 388, 397,
342 N.W.2d 682, 687 (1984).
This assessment is consistent with the pertinent
statute, Section 19.35(1), STATS.[fn1]
Woznicki contends that the trial court's decision allowing the
district attorney to release his public employee records is
contrary to law because it violates public policy against
disclosure of public employee personnel records.
Although not subject to a distinct statutory exception,
the nondisclosure of personnel records of public
employees has been recognized as an exception to
the open records laws via a public policy analysis.
Village of Butler v. Cohen,
163 Wis.2d 819, 829-30,
472 N.W.2d 579, 583 (Ct.App. 1991).
In Cohen, we illustrated the legislature's repeated recognition
of public employee's personnel files as protected by analyzing
the open meeting law statute, Section 19.85, STATS., which
restricts access to information regarding public employee
personnel issues. Id.
Furthermore, our analysis turns on the subject of
the nature of the records, not the custodian.
Although there is a well-established principle that a legal
custodian has wide discretion whether to release files,
State ex rel. Bilder v. Delavan,
112 Wis.2d 539, 558,
334 N.W.2d 252, 262 (1983),[fn2]
we conclude that this principle does not override
the public policy exception of the nondisclosure
of public employee personnel files.
Had Woznicki's file been in the custody of the school district,
the requestors could not have obtained them.
It stands to reason that the requestors cannot obtain these
personnel files from another custodian, in this case the
district attorney, who obtained these records solely
because of his extraordinary police power.
Next, Woznicki contends that his telephone records, which were
part of the district attorney's files, are also protected
from disclosure because he has an expectation of privacy
in telephone conversations conducted in his home.
The trial court concluded that whether Woznicki's telephone
records should be disclosed is best left to the
discretion of the district attorney.
We conclude that Woznicki's telephone records are not
subject to the open records laws, due to the
private nature of these records.
Once again our analysis turns on the nature
of the records, not the custodian.
First, telephone records are not public "records"
under the public access laws.
Section 19.32(2), STATS.,[fn3] defines "record"
as any material in which information is recorded,
preserved or created and kept by an "authority."
Journal/Sentinel, Inc. v. School Bd. of Shorewood,
186 Wis.2d 443,
451, 521 N.W.2d 165, 169 (Ct.App. 1994).
Section 19.32(1)[fn4] generally defines "authority"
as a public agency, board or governmental corporation.
Clearly, a private telephone company does not fall under
the definition of authority for purposes of the statute
because telephone companies are not public entities.
Furthermore, the district attorney does not dispute that the
telephone company is a private entity and that an individual
cannot go to the telephone company and procure a person's record.
The only reason the district attorney had Woznicki's
telephone records is because of the district attorney's
extraordinary police power.
Thus, our examination of Woznicki's telephone records is
analogous to the nondisclosure of Woznicki's personnel
files, in that, although the district attorney has
custody of Woznicki's telephone records pursuant
to a subpoena, the district attorney does not
have the discretion to release these records.
However, a determination whether Woznicki's telephone
records fall under an exception to public records
disclosure is unnecessary, as the telephone records
are private records in the first instance.
We therefore reverse the trial court's order as to
Woznicki's personnel and telephone records and
remand to the trial court to grant Woznicki's
motion for an injunction.
By the Court. Ä Order reversed and cause remanded.
[fn1] Section 19.35(1), STATS., states:
19.35(1)(a) Except as otherwise
provided by law, any
requester has a right to
inspect any record.
Substantive common law principles
construing the right to inspect,
copy or receive copies of records
shall remain in effect.
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.
[fn2] The majority of appellate decisions on issues relating
to access and disclosure of public records are in the
context of a custodian refusing access to records and
the requestor seeking judicial relief to compel
Newspapers, Inc. v. Breier,
89 Wis.2d 417,
279 N.W.2d 179 (1979);
Beckon v. Emery,
36 Wis.2d 510,
153 N.W.2d 501 (1967).
[fn3] Section 19.32(2), STATS., states in relevant part:
19.32(2) "Record" means any material on
which written, drawn, printed,
spoken, visual or electromagnetic
information is recorded or
preserved, regardless of physical
form or characteristics, which has
been created or is being kept by an
"Record" includes, but is not limited
to, handwritten, typed or printed pages,
maps, charts, photographs, films,
recordings, tapes (including computer
tapes), computer printouts and optical
[fn4] Section 19.32(1), STATS., states in pertinent part:
19.32(1) "Authority" means any of the
following having custody of a
record: a state or local office,
elected official, agency, board,
commission, committee, council,
department or public body corporate
and politic created by
constitution, law, ordinance, rule
or order; a governmental or
719 END OF DECISION