by Attorney Nicholas E. Fairweather
Cullen Weston Pines & Bach LLP
As discussed in the Wisconsin Police Journal’s July 2003 issue, the Wisconsin Legislature this past year attempted to “fix” some of the uncertainty surrounding the State’s open records law, Wisconsin Statutes, section 19.31, et seq. This article highlights some important sections of the new law.
You should already know that, as a public employee, you have certain rights regarding records that your employer maintains which contain information about you. The Wisconsin Supreme Court has issued several decisions attempting to clarify your rights when someone requests that your employer release those records. The most famous (or infamous) decision is Woznicki v. Erickson, 202 Wis. 2d 178 (1996), which, among other things, established a procedure for challenging a public employer’s decisions to release records about a public employee. 2003 Wisconsin Act 47, enacted on August 11, 2003, and effective on August 25, 2003, limits the Court’s Woznicki decision. As always, you should start by contacting your WPPA business agent if you have any questions about how this new law impacts your employment rights under your collective bargaining agreement. It may be necessary for your representative to consult with legal counsel in order to obtain a complete answer to your questions.
What records may never be released by a records custodian?
One part of the new law, Wis. Stat. section 19.36(a)-(d), specifies four groups of employee personnel records that a records custodian can never release other than to you, as the employee, or to your authorized representative, including your union. Those four groups are:
1. Information prepared or provided by an employer concerning the home address, home email address, home telephone number, or social security number of an employee, unless the employee authorizes the authority to provide access to the information.
2. Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to the disposition of the investigation.
3. Information pertaining to an employee’s employment examination, except an examination score if access to that score is not otherwise prohibited.
4. Information related 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.
Can I still challenge a decision to release records that contain information affecting my privacy?
Yes. You still have the right to challenge a record custodian’s decision to release records that involve you, but only in limited situations.
What decisions to release records can I challenge?
There are three types of records that give rise to an opportunity for you to challenge their release. Those records, listed in section 19.356(2) of the Wisconsin Statutes, are:
1. A record containing information relating to an employee that is created or kept by the authority and that is the result of an investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employer’s employee.
2. A record obtained by the authority through a subpoena or a search warrant.
3. A record prepared by an employer other than an authority, if that record contains information relating to an employee of that employer, unless the employee authorizes the authority to provide access to that information.
If the requested records are of the type listed above, you should receive notice of a decision to release them. If the records are not of the type listed above, the statute does not require that you receive notice of the custodian’s decision to release them to a records requester.
What are my rights if the custodian decides to release records of the type listed above?
If these types of records are involved, but the custodian nevertheless decides to release them, the custodian must, within three days after making the decision to release the records, serve written notice of the decision to release the records on the “record subject.” This must be done by certified mail or by personally serving the notice on the record subject. A “record subject” is “an individual about whom personally identifiable information is contained in a record.” Wis. Stat. §19.32(2g)
Then, if you wish to challenge the decision to release the records which identify you, you must ask a court to order the authority (i.e., your employer) and its custodian not to release the records. The person requesting the records may be allowed to participate in any such court action. The court must issue a decision within ten days after the filing and proof of service of the summons and complaint. Although this fast time frame may speed up a process that often had the potential to take months, it may limit your ability to convince the court to prohibit the release of records. You should consult your WPPA business agent and legal counsel to help guide you through this new procedure and to assist you in effectively presenting your arguments to the court.
What happens if the court does not stop the release of records?
You have a right to appeal any court decision not to stop the release of records or to release records. The new law makes it clear that no records will be released during the appeal or any court action preceding it. If you decide to appeal the decision of the court, you must do so within 20 days of that court’s “entry of judgment or order.” If you are a public employee whose records are involved in such a situation, you should consult an attorney at this point if you haven’t already done so.
While the Legislature has attempted to clarify your rights under the Open Records Law, you should contact your WPPA business agent immediately if you are notified that a records custodian is planning to release records that concern you. Your business agent probably will find it necessary to consult with WPPA legal counsel. Until public employees, public employers, and the courts have some experience with the new law, it is wise to use the resources that WPPA makes available to you to protect your rights under the law.