WOZNICKI v. ERICKSON,

192 Wis.2d 710 (Ct.App. 1995)

531 N.W.2d 465






712
713
714
715
716
717
718
719
MAIL
GJS


Thomas J. WOZNICKI, Plaintiff-Appellant, v. Dennis W. ERICKSON, Assistant District Attorney, Defendant-Respondent.[fn]
Court of Appeals No. 94-2795. Submitted on briefs February 28, 1995. Decided March 21, 1995. [fn] Petition to review granted.
TOP
712
713
714
715
716
717
718
719
MAIL
GJS
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.
TOP
712
713
714
715
716
717
718
719
MAIL
GJS
Before Cane, P.J., LaRocque and Myse, JJ.



CANE, P.J.



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.
TOP
712
713
714
715
716
717
718
719
MAIL
GJS
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.



See



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

    record confidential.
TOP
712
713
714
715
716
717
718
719
MAIL
GJS


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. We agree. 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.
TOP
712
713
714
715
716
717
718
719
MAIL
GJS
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.



Id.
TOP
712
713
714
715
716
717
718
719
MAIL
GJS
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.
TOP
712
713
714
715
716
717
718
719
MAIL
GJS
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

          disclosure.



          See, e.g.,



          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

                    authority.



                    "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

                    disks.



[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

                    quasi-governmental corporation...."






TOP
712
713
714
715
716
717
718
719
MAIL
GJS


719 END OF DECISION