WSJPLATT
GJS
HOME
MAIL
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, and Terry Shelton, Plaintiffs-Respondents, v. UNIVERSITY OF WISCONSIN PLATTEVILLE, and William Chmurny, Defendants-Appellants.

Court of Appeals No. 90-0214.



Submitted on briefs June 6, 1990.                       

Decided December 27, 1990.
TOP
PREVIOUS
NEXT PAGE 33
APPEAL from a judgment and an order of the circuit court

for Grant county:  JOHN R. WAGNER, Judge.  Affirmed.
TOP
PREVIOUS
NEXT PAGE 34
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.



DYKMAN, J.



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.
TOP
PREVIOUS
NEXT PAGE 35
BACKGROUND



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

administrative code.



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.
TOP
PREVIOUS
NEXT PAGE 36
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.



Defendants appeal.



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.]
TOP
PREVIOUS
NEXT PAGE 37
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.



     [Emphasis added.][fn1]



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.
TOP
PREVIOUS
NEXT PAGE 38
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).
TOP
PREVIOUS
NEXT PAGE 39
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]
TOP
PREVIOUS
NEXT PAGE 40
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]
TOP
PREVIOUS
NEXT PAGE 41
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.
TOP
PREVIOUS
NEXT PAGE 42
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

compelling disclosure.



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.
TOP
PREVIOUS
NEXT PAGE 43
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.  Judgment and order affirmed.
TOP
PREVIOUS
NEXT PAGE 44
[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."

      (Emphasis added.)



      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.

      [Emphasis added.]



      The current version requires a greater showing of

      likelihood of damage to reputation than its predecessor.
TOP
PREVIOUS
NEXT PAGE 45