Case Update: The Wisconsin Court Of Appeals Rejects An Attempt To Prevent The Disclosure Of Misconduct Investigatory And Disciplinary Records
By Attorney Nick Fairweather, Cullen Weston Pines & Bach LLP
As discussed in previous issues of the Wisconsin Police Journal, the State Legislature amended the Open Records Law in 2003 to provide more clarity for public employees and those individuals requesting access to records concerning public employees. The Legislature’s attempt at clarification specifically cited the Supreme Court’s decisions in Woznicki v. Erickson and Milwaukee Teachers’ Association v. Milwaukee School District, two decisions that significantly affected the public’s right to access public employee personnel records, including those generated during investigation into alleged misconduct and any discipline that was imposed. The Legislature defined four categories of employee personnel records that are exceptions to the rule requiring disclosure of public records. Those categories are found in Wis. Stat. §19.36(10)(d).
The Wisconsin Court of Appeals recently considered the scope of one of the new sections of the law. The Court’s decision in Kroeplin v. Wisconsin Dept. of Natural Resources, No. 2005AP1093 (Wis. Ct. App. October 12, 2006) involved a media request for records related to an investigation into allegations of Kroeplin’s misconduct. Kroeplin had been accused of requesting a license plate check from a police dispatcher shortly after his nephew had made the same request from the same dispatcher. Kroeplin’s employer, the Wisconsin Department of Natural Resources, investigated the claims and ultimately issued Kroeplin a “disciplinary memorandum.”
One of the “new” sections of the Open Records Law protects four classes of employee personnel records from disclosure. The Kroeplin Court considered the following exempt records in light of the facts of that case:
(d) Information relating to one or more specific employees that
is used by an authority or by the employer of the employees for staff
management planning, including performance evaluations, judgments,
or recommendations concerning future salary adjustments or other
wage treatments, management bonus plans, promotions, job assignments,
letters of reference, or other comments or ratings relating to employees.
Wis. Stat. §19.36(10)(d).
Kroeplin and his employer, the Wisconsin Department of Natural Resources, sought to prevent the misconduct investigation and the disciplinary records from disclosure to the Lakeland Times. The Court noted that “[t]he parties’ dispute centers on the meaning and application of the term ‘staff management planning’ within the meaning of Wis. Stat. §19.36(10)(d).” Kroeplin argued that because the investigatory and disciplinary records “will likely be used for future performance evaluations, these documents therefore are ‘absolutely protected’ from disclosure.” The DNR argued that only certain parts of those records should be excepted from disclosure. The Court rejected these arguments when it held that a common sense reading of subsection (10)(d) does not support excepting investigatory and disciplinary records from disclosure. The Court went on to reaffirm “the public’s interest in disciplinary actions taken against public officials and employees, especially those employed in a law enforcement capacity.” Kroeplin also attempted to persuade the Court that the records should not be disclosed because the public interest favoring nondisclosure outweighed “the strong presumption favoring openness.” While all of Kroeplin’s arguments were rejected by the Court, it did reaffirm that records should be protected from disclosure if such disclosure would threaten the personal privacy and safety of employees.
The Court of Appeals in this case has provided law enforcement employees with a simple lesson: the Legislature’s 2003 changes to the Open Records Law, as it applies to public employees, does not create an exception to disclosure for misconduct investigatory and disciplinary records. Records are still subject to the common law balancing test between the public’s interest in disclosure and any factors favoring nondisclosure. Law enforcement employees should take notice, however, that “they should expect closer public scrutiny, which includes the real possibility that disciplinary records may be released to the public.” If you are given notice that you are the subject of record request, you should immediately contact your WPPA business agent. He or she will then assist you in navigating the procedures necessary to challenge the release of records, if you decide that such action is warranted.
As of the date of this writing, the Wisconsin Court of Appeals has not published the Kroeplin decision in the official reports. However, the Court has recommended publication.
