Wisconsin State Journal v. Platteville
160 Wis.2d 31 (Ct.App. 1990)
465 N.W.2d 266
33 34 35 36 37 38 39 40 41 42 43 44 45
WISCONSIN STATE JOURNAL,
UNIVERSITY OF WISCONSIN
Court of Appeals No. 90-0214.
Submitted on briefs June 6, 1990.
Decided December 27, 1990.
APPEAL from a judgment and an order of the circuit court
for Grant county: JOHN R. WAGNER, Judge. Affirmed.
For the defendants-appellants the cause was submitted
on the briefs of Donald J. Hanaway, attorney general,
and Robert W. Larsen, assistant attorney general.
For the plaintiffs-respondents the cause was submitted
on the brief of Michael P. May and Mark J. Steichen of
Boardman, Suhr, Curry & Field of Madison.
Before Gartzke, P.J., Dykman and Sundby, JJ.
This is a mandamus action commenced under the Wisconsin public
records law, secs. 19.31-19.39, Stats.
The University of Wisconsin-Platteville and William Chmurny
(defendants) appeal a trial court judgment granting a writ of
mandamus compelling them to allow the Wisconsin State Journal
and Terry Shelton (plaintiffs) access to documents compiled
in a faculty investigation.
The trial court concluded that the records custodian had not
stated with sufficient specificity his reasons
for denying the plaintiffs access.
We conclude the custodian stated his reasons for
denial of access with the requisite specificity.
We conclude, however, that the public interest in openness
and full public disclosure outweighs the harm to reputation
that may result from disclosure of the documents.
Therefore, we affirm the trial court's judgment.
Defendants contend the trial court abused its discretion by
refusing to join as parties the subjects of the investigation.
Because defendants have not established the subjects of the
investigation are necessary parties under sec. 803.03(1), Stats.,
we affirm the trial court's order denying joinder.
In April of 1989, two faculty members sent a letter
to the Institutional Ethics Committee of the University of
Wisconsin-Platteville, alleging that Dean Kahtan Al Yasiri had
used his influence to secure preferential treatment for his wife,
Ann Al Yasiri, also a professor, in violation of the state
In May of 1989, the authors of the letter, along with a third
faculty member, wrote to William Chmurny, Chancellor of
UW-Platteville, requesting that he pursue their complaint.
Chmurny appointed Dr. Dallas Peterson, Associate Vice-President
for Academic Affairs in the UW system,
to investigate the complaint.
Peterson prepared a report, detailing his investigation
and concluding that no evidence supported the
allegations against Al Yasiri.
As a result of the report, Chmurny found that the
charges against Al Yasiri were without foundation.
After the report had been completed, plaintiffs requested copies
of the initial complaint, supplementary pleadings and "any other
copies of papers concerning the investigation."
In June of 1989, Chmurny denied the request, explaining:
We respectfully decline your request since these
documents are an integral part of an investigation of
charges against a specific person, which I have found
to be without foundation, and if discussed in public
would be likely to have a substantial adverse effect
upon the reputation of such person.
My denial of your request is on advice of counsel
and pursuant to Section 19.85(1)(f), Wis. Stats.
Plaintiffs then commenced this action to compel Chmurny
to provide access to the requested documents.
Defendants sought an order of joinder of
the Al Yasiris as parties to the action.
After a hearing, the trial court denied
defendants' motion to join the Al Yasiris.
The court then allowed plaintiffs' counsel to view the
investigatory file, viewed the file in camera,
and heard arguments.
The trial court concluded that Chmurny's explanation failed to
state with sufficient specificity why the documents should be
exempt from disclosure and therefore granted mandamus.
STANDARD OF REVIEW
This case involves the application of Section 19.35, Stats.,
to an undisputed set of facts.
The application of a statute to a particular set
of facts presents a question of law.
Oshkosh Northwestern Co. v. Oshkosh Library Bd.,
125 Wis.2d 480, 485, 373 N.W.2d 459, 462 (Ct. App. 1985).
As such, we are not bound by the trial court's conclusions
and review the matter de novo.
First Nat'l Leasing Corp. v. City of Madison,
81 Wis.2d 205, 208, 260 N.W.2d 251, 253 (1977).
PUBLIC RECORDS LAW
Defendants concede that the documents compiled in the
investigation are "public records."
Public records are generally open to public inspection.
See Section 19.35, Stats. There is a legislatively presumed
interest in exposure of public records to full public scrutiny.
Milwaukee Journal v. Call, 153 Wis.2d 313, 322,
450 N.W.2d 515, 518 (Ct. App. 1989).
Section 19.31, Stats., states in part:
[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 government and
the official acts of those officers and employes who
represent them . . . To that end, ss. 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. [Emphasis added.]
However, Section 19.35(1)(a), Stats., provides in part:
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.
Section 19.85(1)(f), Stats., authorizes closed meetings for:
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 of data,
or involved in such problems or investigations.
We begin our analysis by examining whether the meetings
held pursuant to the investigation of Al Yasiri were
properly closed under Section 19.85(1)(f), Stats.
The meetings were held as a result of allegations that a
faculty member had violated that state administrative code.
As such, the meetings were an "investigation of charges
against [a] specific person." Section 19.85(1)(f).
The specific allegation, nepotism in violation of the
state administrative code, if discussed in public,
would have a substantial adverse effect
on Al Yasiri's reputation.
We conclude the trial court properly found that meetings
held pursuant to the investigation could be convened
in closed session under Section 19.85(1)(f), Stats.
This conclusion, however, does not end our inquiry.
It does not follow that, simply because meetings were
properly closed under Section 19.85(1)(f), Stats.,
documents compiled in conjunction with those
meetings are exempt from disclosure under Section 19.35(1).
Rather, Section 19.35(1) contemplates:
[M]ore than a mere recognition of the statute under
which the meeting was closed and an assertion that
the reasons for closure still exist and serve
as a basis to deny public inspection.
The custodian must state specific public
policy reasons for the refusal.
Oshkosh Northwestern Co., 125 Wis.2d at 485, 373 N.W.2d at 462.
A party resisting inspection of public records must state with
sufficient specificity a public policy reason for the refusal.
Journal/Sentinel, Inc. v. Aagerup, 145 Wis.2d 818, 822,
429 N.W.2d 772, 774 (Ct. App. 1988).
The specificity requirement is not met by a mere citation
to the exemption statute nor by a bald assertion that
the release is not in the public interest.
Id. at 823, 429 N.W.2d at 774.
On review, we determine whether the custodian's reasons for
denial were stated with the requisite specificity and,
if so, whether the public interest in confidentiality
outweighs the strong public policy favoring disclosure.
See Milwaukee Journal, 153 Wis.2d at 317, 450 N.W.2d at 516.
Citing Section 19.85(1)(f), Stats., the custodian stated
that if the documents were discussed in public, they
would "be likely to have a substantial adverse
effect upon the reputation of [Al Yasiri]."
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.
We conclude the custodian's letter of denial states with
sufficient specificity the reasons for denial.[fn2]
Because we conclude that the custodian stated the reasons
for nondisclosure with sufficient specificity, we must
decide whether the harmful effect on the public
interest in disclosing the documents outweighs
the public interest in inspection.
Youmans, 28 Wis.2d at 681, 137 N.W.2d at 474;
Rathie v. Northeastern Wisconsin Technical Inst.,
142 Wis.2d 685, 690,
419 N.W.2d 296, 299 (Ct. App. 1987).
This is a question of law, which we independently determine.
Newspapers, Inc. v. Breier, 89 Wis.2d 417, 427,
279 N.W.2d 179, 184 (1979).
Referring to Section 14.90(3)(e), Stats. (1963), a predecessor
of Section 19.85(1)(f), Stats., the court in Youmans stated:
As applied to inspection [sec. 14.90(3)(e)] does not
bar all inspection of public records and documents
that might damage reputations, but requires a balancing
of the interest of the public to be informed on
public matters against the harm to reputation which
would likely result from permitting inspection.
Id. at 685, 137 N.W.2d at 476.[fn3]
There is a public-policy interest in protecting
the reputations of citizens.
Breier, 89 Wis.2d at 430, 279 N.W.2d at 185;
Youmans, 28 Wis.2d at 684-85, 137 N.W.2d at 476.
We recognize the public interest in conducting closed meetings to
investigate allegations of misconduct against specific persons
which, if discussed in public, would be likely to have a
substantial adverse effect upon their reputation.
Section 19.85(1)(f), Stats.
There may be instances where the public interest in maintaining
the confidentiality of documents compiled in conjunction with
an investigation of a specific person outweighs the public
interest in openness and public scrutiny.
This is not such a case.
Al Yasiri is a university official subject
to close public scrutiny.
By accepting appointment as dean of a department of a state
university, Al Yasiri voluntarily took a position
of public prominence.
He has, for the most part, relinquished his right to keep
confidential activities directly related to his employment.
State ex rel. Bilder v. Township of Delavan,
112 Wis.2d 539, 557,
334 N.W.2d 252, 261-62 (1983).
He has little reasonable expectation of privacy
regarding his professional conduct.
In addition, the dangers of harm to reputation which might
have justified nondisclosure during an investigation are
no longer present once the investigation is complete.
While an investigation is continuing, the subject may suffer
adverse reputational harm, whether warranted or not, simply
because of the stigma that attaches as a result of being the
"subject of investigation. "
Once the investigation is complete, however, the danger
of warrantless harm to reputation is reduced.
The investigation of Al Yasiri is complete.
The chancellor has concluded the charges have no foundation.
We conclude the public interest in disclosure of the documents
outweighs the possibility of harm to the reputation of Al Yasiri.
We therefore affirm the trial court's judgment
JOINDER OF A THIRD PARTY
Defendants contend the trial court abused its discretion by
failing to join the Al Yasiris as parties pursuant
to Section 803.03(1), Stats.
Section 803.03(1) is the necessary parties provision
of the Rules of Civil Procedure and provides:
A person who is subject to service of process
shall be joined as a party in the action if:
803.03(1)(a) In the person's absence complete
relief cannot be accorded among
those already parties; or
803.03(1)(b) The person claims an interest
relating to the subject of the
action and is so situated that
the disposition of the action
in the person's absence may:
1. As a practical matter
impair or impede the
person's ability to
protect that interest; or
2. Leave any of the persons
already parties subject
to a substantial risk of
incurring double, multiple
or otherwise inconsistent
obligations by reason of
his or her claimed interest.
Although defendants suggest that the
"circumstances mandat[e] the joinder of the Al Yasiris
under all the provisions of Section 803.03(1), Stats.,"
they do not specify under which of the above
subsections the Al Yasiris qualify for joinder.
The crux of defendants' arguments is that, because the Al Yasiris
have filed a notice of claim against defendants, failure to join
the Al Yasiris would produce an irreconcilable
conflict of interest.
We believe Section 803.03(1), Stats., does not require joinder
because defendants have not shown the Al Yasiris to be
necessary parties under either 803.03(1)(a) or (b).
Plaintiffs seek only a writ of mandamus to compel disclosure.
As such, complete relief can be afforded without
the addition of the Al Yasiris as parties.
See Section 803.03(1)(a).
In addition, the Al Yasiris have no legal interest
in this action.
See Section 803.03(1)(b).
Only the records custodian, not individuals who are the subjects
of public records, may seek to prevent inspection.
State ex rel. Bilder, 112 Wis.2d at 558, 334 N.W.2d at 262.
In Bilder, the court stated:
The legislature has provided that the governmental
unit, not the individual, has the power to open or close
meetings and it is the legal custodian of the record,
not the citizen, who has the right to have the record
closed if the custodian makes a specific demonstration
that there is a need to restrict public access at the
time the request is made. Id.
We conclude the trial court did not abuse its discretion by
refusing to join the Al Yasiris as necessary parties under
Section 803.03(1), Stats.
By the Court. Ä Judgment and order affirmed.
[fn1] Prior to the enactment of Section 19.35(1)(a),
Stats., of the public records law, the supreme court
in State ex rel. Youmans v. Owens, 28 Wis.2d 672,
137 N.W.2d 470 (1965),
acknowledged that the legislative policy in the open
meetings law of not disclosing "[f]inancial, medical,
social or personal histories and disciplinary data which
may unduly damage reputations" carries over to inspection
of public records and documents.
Id. at 684-85, 137 N.W.2d at 476 (quoting Section
14.90(3)(e), Stats. (1963) [now, as amended
Section 19.85(1)(f), Stats.]);
See Comment, The Wisconsin Public Records Law,
67 Marq. L. Rev. 65, 81 (1983).
[fn2] Our conclusion is consistent with Oshkosh Northwestern Co.
v. Oshkosh Library Bd., 125 Wis.2d 480,
373 N.W.2d 459 (Ct. App. 1985),
relied on by plaintiffs.
In that case, a library board met repeatedly in
closed session pursuant to Section 19.85(1)(c), Stats.,
to consider a "personnel matter."
Id. at 481, 373 N.W.2d at 461.
The custodian denied access to the records of the meetings,
stating that they "were exempted from being public pursuant
to Section 19.85(1)(c), Wis. Stats., and that the reason
for the exemption of the meeting carries over to the
exemption of the records." Id. at 484, 373 N.W.2d at 462.
The court concluded the custodian's explanation was not
sufficiently specific. Id. at 485-86, 373 N.W.2d at 462-63.
Oshkosh Northwestern Co. involved Section 19.85(1)(c),
Stats., rather than Section 19.85(1)(f).
Section 19.85(1)(c) allows a closed session for considering
"employment, promotion, compensation or performance
evaluation data of any public employe . . . ."
A custodian invoking Section 19.85(1)(c) has greater
freedom to describe the character of the closed meetings
without divulging the information sought to be kept secret
than one invoking Section 19.85(1)(f).
[fn3] Section 14.90(3)(e), Stats. (1963), referred to in Youmans,
allowed a closed session for purposes of considering
"[f]inancial, medical, social or personal histories and
disciplinary data which may unduly damage reputations."
As amended, Section 19.85(1)(f), Stats., currently
allows a closed session when considering:
[F]inancial, medical, social or personal histories or
disciplinary data of specific persons . . . or the
investigation of charges against specific persons . . .
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.
The current version requires a greater showing of
likelihood of damage to reputation than its predecessor.