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  • March 20, 2023

    Assembly Misapplied Balancing Test when Holding Back HR Records

    The State Assembly misapplied the public interest balancing test when declining to disclose records related to a sexual harassment complaint filed against one of its members, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    A Heavily Redacted Document With The Word Confidential Typed Across The Top

    March 20, 2023 – The State Assembly misapplied the public interest balancing test when declining to disclose records related to a sexual harassment complaint filed against one of its members, the Wisconsin Court of Appeals has ruled.

    In Wisconsin State Journal v. Blazel, 2021AP196 (March 9, 2023), a three-judge panel of the District IV Court of Appeals held (2-1) that the eventual release of the record did not render moot a legal action filed by newspapers to compel disclosure of the records.

    Judge JoAnne Kloppenburg wrote the majority opinion, joined by Presiding Judge Brian Blanchard. Judge Michael Fitzpatrick dissented.

    Harassment Complaint

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    In November 2019, an employee of the Wisconsin State Assembly filed a formal complaint against State Rep. Staush Gruszynski, a Democrat. In the complaint, the employee alleged that Gruszynski sexually harassed her after work hours in a tavern.

    The Legislative Human Resources Office substantiated the employee’s allegations and determined that Gruszynski had violated policies include in the Assembly Policy Manual.

    Request for Records Denied

    On Dec. 19, 2019, State Assembly Democratic leaders said they had stripped Gruszynski of his committee assignments after learning of the results of the LRHO investigation.

    On. Dec. 19 and 20, the Wisconsin State Journal and other newspapers submitted public records requests to the Assembly for records related to the complaint and the investigation.

    On Dec. 20, the Assembly gave the newspapers a copy of a summary of the complaint and the LRHO investigation.  

    The summary said that the Assembly had conducted the balancing test required by the state public records law and concluded that that public interest in extending confidential treatment to employee complaints and respecting the privacy and dignity of complainants and witnesses outweighed the public interest in disclosing the records.

    Newspapers Sue Assembly

    In March 2020, the newspapers filed a lawsuit in Dane County Circuit Court.

    The newspapers asked the court  for an order declaring that the Assembly had violated the public records law. They also asked for: 1) an order directing the Assembly to release the requested records and 2) an award of attorney fees under Wis. Stat. section 19.37(2)(a).

    On Aug. 7, 2020, one of the newspapers ran an article that contained details of the harassment, based on interviews with the complainant, Gruszynski, and others.

    On Aug. 12, one of the Assembly’s attorneys told the newspapers by letter that the Assembly would release redacted copies of the requested records. The attorney said the redactions were made to protect the identity of the complainant and witnesses, and to remove three mentions of protected health information or other confidential information.

    Amended Complaint

    The newspaper filed an amended complaint in October 2020.

    In the amended complaint, the newspapers claimed that the Assembly violated the public records law by: 1) withholding the records and delaying their release; and 2) releasing redacted versions of the records.

    The circuit court ruled that the newspaper were entitled to summary judgment and the full amount of their attorney fees.

    The Assembly appealed.

    Interpreting Friends of Frame Park

    Judge Kloppenburg began her opinion by examining a decision handed down by the Wisconsin Supreme Court after the newspapers and the Assembly had submitted their briefs.

    In that decision, Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57, 403 Wis. 2d 1, 976 N.W.2d 263, the supreme court held (4-3) that to recover fees under the state public records law, a records requester “must obtain a judicially sanctioned change” in the relationship between the requester and the custodian of the records.

    Kloppenburg pointed out that in Friends of Frame Park, the majority reached the issue of whether the records requester was entitled to attorney fees only after determining that the record custodian’s initial decision not to release the records did not violate the public records law.

    “In doing so, the majority/lead opinion implicitly indicated that courts may address the merits before determining whether a requester can meet the test for entitlement to fees,” Judge Kloppenburg wrote.

    Mootness Exceptions Apply

    The Assembly argued that the cause of action first filed by the newspapers was rendered moot by the subsequent release of the records.

    But Kloppenburg also noted that the majority in Friends of Frame Park explicitly stated that it was not deciding whether an action to compel the disclosure of public records becomes moot when a records custodian releases the records, such that the requestor cannot be entitled to attorney fees.

    “The majority/lead opinion explained that the court did not need to address the issue of mootness because the City did not violate the public records law,” Kloppenburg wrote.

    Rather, she explained it was the supreme court’s determination that the City’s denial was lawful that rendered the requestors ineligible to receive attorney fees, and not the fact the requester’s lawsuit was rendered moot by the release of the records.

    Judge Kloppenburg noted that under Wisconsin Court of Appeals precedent, a requester’s voluntary release of a record does not render moot an action seeking the release of the record because a ruling on the merits would, practically, determine whether the requester was entitled to attorney fees.

    Furthermore, Judge Kloppenburg concluded, in the Assembly’s case, all but one of the five exceptions to the mootness doctrine recognized by the supreme court applied, including the fact that the issue was one of great public importance and was likely to recur and must be resolved to avoid uncertainty.

    Assembly Misapplied Balancing Test

    On the merits, Kloppenburg concluded that the Assembly had misapplied the public records law’s balancing test.

    She pointed out that the Assembly had failed to apply the test to each individual record, as required by supreme court case law. The text of the summary, Judge Kloppenburg reasoned, showed that the Assembly had operated from a presumption against public disclosure, the opposite of the presumption established in the public records law.

    The Assembly argued that the summary, the press releases issued by the Assembly Democrats, and media reports, taken together, were sufficient to satisfy the public interest in the disclosure of the requested documents.

    But that argument was too broad, Judge Kloppenburg explained, and ignored the presumption in favor of disclosure.

    “An authority’s statement about its own evaluation of the requested records and its own judgment about the public relevance of those records is no substitute for a proper response to a public records request,” Kloppenburg wrote.

    The court’s decision that the Assembly had violated the public records law, Judge Kloppenburg reasoned, constituted “‘favorable relief from a court’” that changed the relationship between the parties, as required by Friends of Frame Park.

    As a result, the newspapers were entitled to attorney fees for both legal actions.

    Dissent: Majority Misreads Friends of Frame Park

    Judge Fitzpatrick dissented from the award of attorney fees for the first legal action, he wrote, because in his opinion the majority had misconstrued the majority holding in Friends of Frame Park.

    Fitzpatrick noted that the U.S. Supreme Court opinion on which the Wisconsin Supreme Court relied when fashioning an analysis to govern awards of attorney fees under section 19.37(2)(a) is clear that only prevailing parties are entitled to attorney fees, and to be a prevailing party, a party must have a judgment rendered in its favor.

    “The newspapers have nothing in the form of judicial remedy or relief in their favor regarding production of [the Assembly] records,” Judge Fitzpatrick wrote. “All the newspapers have concerning Count 1 is a favorable judicial statement from the majority of this panel that the records should have been produced earlier.”

    Fitzpatrick wrote that the majority opinion “turns the Friends of Frame Park test inside out … The most that can be said about the lead opinion considering the question is that, for the sake of efficiency, Justice Hagedorn took a look at the facts and found no violation of public records law. In that way, he did not have to consider whether a mootness exception could ever apply to the Friends of Frame Park test.”

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