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July 17, 2018

6/29/2018 7:29:00 AM
Court strikes a blow for open records

As we report in today's edition, a state court of appeals has bolstered the state's open records law in a major way, ruling in favor of the release of closed investigatory records that a UW-Oshkosh professor, Willis Hagen, had tried to stop.

The most important aspect of this decision is that it should - save for a potential appeal to the Supreme Court - make clear once and for all that closed investigatory records of public employees in the state of Wisconsin must be released except in the most extraordinary circumstances.

The decision, written by Lisa S. Neubauer, the chief judge of the Wisconsin Court of Appeals, District II, virtually shouted from the rafters what should have been clear for a long, long time: No statutory exception exists for records of closed misconduct investigations.

Along the way, the judge and her colleagues on the appeals court panel made some very good points.

For one thing, Neubauer wrote, the argument that releasing various records, including and especially closed investigations of alleged misconduct, will have a chilling effect on a government's ability to recruit and retain good workers is a red herring.

It is a red herring that is raised time and time again, and time and time again judges have dismissed it.

As Neubauer pointed out, "it is as likely that current or prospective employees would view the release as appropriately transparent and favoring accountability." Let us all hope that public employers will discontinue this never-effective and in any event unprovable argument in their attempts to keep significant records sealed.

Another point made by Neubauer stands out.

While Hagen and others try to portray investigatory records as various kinds of protected personnel records, Neubauer wrote, they fail to address the raft of court cases that have specifically discussed and differentiated routine employee personnel matters and the release of records relating to completed investigations of employee misconduct under the public records law.

For example, while Hagen tried to characterize the records as exempt "staff management planning" records, Kroeplin v DNR made clear that once the investigation into possible misconduct by a public employee is completed, that specific exemption does not apply.

And, as Neubauer wrote, Wisconsin courts have recognized the "great importance of disclosing disciplinary records of public employees and officials where the conduct involves violations of the law or significant work rules." That was also the Kroeplin case.

In Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, the court determined that the public has a strong interest in being informed about public officials who have been "derelict in [their] duty," even at the cost of possible reputational harm, Neubauer observed.

In Linzmeyer v. Forcey, Neubauer continued, the court determined that the public "has an interest in knowing how the government handles the disciplinary actions of public employees."

The truth is, case law and statutes make clear that closed disciplinary investigations are public records precisely because the public has not only a right but a responsibility to oversee how state agencies investigate alleged misconduct and how they discipline those found guilty of such misconduct.

Here are two important reasons the public must be vigilant and that the records must be available so they can remain vigilant.

The first is to make sure state agencies do not cover up serious misconduct with little slaps on the wrists, keeping in public employment bad apples who hinder productivity and endanger safety through their actions, and who lower morale among all employees.

But access to these records also helps protect workers. It is not unknown for government agencies to engage in retaliation against whistleblowers, or against those who are not among the favored few who scratch each others backs.

When a public employee is investigated and disciplined, the public needs to make sure the investigation was fair and not conducted by a railroad engineer, and that the discipline fits the misconduct.

As Neubauer pointed out in the court's decision, access may be denied "only in an exceptional case." Those cases are rare indeed.

Left undetermined by this decision are those infractions deemed minor and committed by lower-level employees.

The courts need to presume access in these cases, too, again except for an exceptional case, precisely because what is a serious infraction in the eyes of a bureaucrat may not be so serious in the eyes of the public and vice versa.

Or the agency may be inconsistent in its application of standards of seriousness, doling out different disciplinary levels to different employees for the same misconduct. Only by providing access to virtually all closed investigations and disciplinary matters can the public truly know whether conduct is indeed misconduct and whether the penalties are fair.

Only by providing the strongest possible presumption of access can the public truly hold the state accountable and provide responsible oversight.

The court of appeals decision, while perhaps not the most comprehensive or the final word, takes us in the right direction.

State agencies must now understand that the great weight of case law demands release of employee investigatory and discipline records, including their names. Only then can accountability be sustained.

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