by Attorney Nick Fairweather
Cullen Weston Pines & Bach LLP
On July 13, 2005, the Wisconsin Supreme Court once again changed the contours of the State’s Open Records Law. They did so with their decision in the case of Hempel v. City of Baraboo. The case involved Hal Hempel, a City of Baraboo police officer, who was accused by a co-worker of having sexually harassed her. The co-worker made a verbal and a written complaint to her supervisor outlining her claims. Almost five months after the complaints were made, the City informed Hempel that Police Chief Thomas Lobe declined to impose any discipline on Hempel.
Two months later, Chief Lobe sent Hempel a “resolution memorandum” stating that the matter had been resolved but, if another similar complaint was received in the future, the current matter could be resurrected “and considered at that time.” Chief Lobe stated that the memorandum would be placed in Hempel’s personnel file for three years.
Apparently concerned that the Chief had not performed an adequate investigation into the harassment claims, Hempel made a request under the Open Records Law and the Wisconsin Personnel Records law for all written materials generated by the Department’s investigation. Ultimately, Hempel received a copy of the complainant’s statement, a Sauk County Sheriff’s Office report, Chief Lobe’s August 2000 memorandum and correspondence from Hempel’s attorney. Chief Dennis Kluge, Chief Lobe’s successor, denied Hempel’s request for documents related to the Department’s “internal investigation” of the harassment complaint and documents related to the interview of the complainant. Hempel sued the City of Baraboo, seeking to compel Chief Kluge to release the information that Hempel sought. The Court upheld the City’s refusal to release the records; the Court of Appeals affirmed that decision. Hempel appealed to the Supreme Court of Wisconsin.
In its review of the Court of Appeals’ decision, the Supreme Court of Wisconsin first explained that Hempel’s request for records should be analyzed under two sections of the Wisconsin Open Records Law. Wis. Stat. Section 19.35(1)(a) grants any requester the right to inspect any record, subject to the law as developed by state courts of balancing the policy favoring disclosure of records with policy considerations favoring limited access or nondisclosure of the specific records requested. Wis. Stat. Section (1)(am) allows an individual to inspect any record containing “personally identifiable information pertaining to the individual” with specific exceptions provided by the statute.
The Court recognized that Section (1)(am) provides employees with a “more potent right of access” than that provided by Section (1)(a). Justice David Prosser, writing for the Court’s majority, stated that Section (1)(am) “should be interpreted to reflect its original purpose of giving an individual access to records containing personally identifiable information about the individual, so that he or she may determine what information is being maintained and whether this information is accurate.”
Nonetheless, the Court declined to grant access to “records of a government investigation that may be used in a future proceeding, particularly internal investigative records that will identify informants….” The Court reasoned that even though the Chief had informed Hempel that the complaint had been “resolved,” the Chief’s warning that the complaint could be used against Hempel in the future if similar claims were made against him, led the Court to conclude that the records had the potential to be “a record ‘maintained’ in connection with a pending complaint,” one of the specific exceptions found in Section 19.35(1)(am). The Court also found that the City could legally refuse to disclose the documents because they included statements made by informants who were promised confidentiality for their cooperation in the internal investigation.
The Court also applied Section 19.35(1)(a) noting this section has a much broader application. Under Section 19.35(1)(a) the custodian balances Wisconsin’s strong public policy promoting open government and disclosure of records with any “harm to the public interest” that may result from disclosure of the records. The Court used a series of public policy considerations to uphold the City’s denial of Hempel’s demand to inspect the records. Among the policy considerations were: the “context” within which the record request was made; the confidentiality concerns of complainants and witnesses; the potential loss of morale within the police department; the potential for discouraging qualified candidates from entering police work; and the record custodian’s interest in protecting the complainant and reluctant witnesses.
While the Hempel Court ruled against the police officer requesting records, its ruling appears to afford more protection to police officers in the “typical” open records case where individuals outside of the government body request internal records. In this type of case, the request will be subject to the balancing test under Section (1)(a) and the public policy considerations outlined in the Hempel decision. The Hempel Court has given records custodians several policy considerations to use when denying access to records involving police officers. As Justice Shirley Abrahamson stated in her dissenting opinion, the Hempel Court may have created a rule that “can be applied in a broad array of cases to deny access to records.” The majority disputed that claim, instructing records custodians to “evaluate each request within its own factually specific context.”
While the Court’s ruling that Chief Lobe’s “resolution memorandum” caused other records to fall within one of the exceptions to Section 19.35(1)(am), is strained, it also gives WPPA members and business agents fair warning of the consequences of issuance of such a document. Letters or memorandums similar to Chief Lobe’s may be inherently “disciplinary” and, therefore, subject to contractual grievance procedures. It is always the best practice to consult with your WPPA business agent immediately upon receiving any document that appears to be disciplinary or that has the potential to influence future disciplinary action.