Sept. 4, 2019 – Many Wisconsinites want to know what state and local governments and elected officials are up to. But many people also are concerned about the seemingly limitless availability of their personal information. Often in the intersection are public employees who, because of their employment status, have less expectation of privacy in their work records.

Figuring out whether governmental employees’ personnel records are completely “public” is not always clear cut.

Explore All the Angles When Handling a Public Record or Open Meeting Issue

The Wisconsin Public Records and Open Meetings Handbook from State Bar of Wisconsin PINNACLE® is a comprehensive guide, whether you’re seeking or attempting to shelter information concerning law enforcement officers or other public employees, elected officials, or governmental entities and their activities or trying to find out whether a meeting must be open.

Use it to learn more about:

• making and responding to public records requests;

• the effect of attorney-client confidentiality and other privileges;

• electronic records; and

• providing notice of and recording meetings of public bodies.

The book includes recent statutory, case-law, and attorney-general-opinion developments.

Consider This Scenario

Your client, Mr. S, tells you that he’s unhappy with his neighbor, Mr. T. According to Mr. S, Mr. T spends a lot of time doing yard work and might be trespassing on Mr. S’s lawn. As far as Mr. S knows, Mr. T is employed on the city’s police force. He asks you whether it’s possible to see police department records and find out if Mr. T is home so much because of getting into trouble at work. You’re not entirely comfortable with Mr. S’s desire to dig up dirt, but you agree to find out more about the process.

Public Employees’ Personnel Records are Public Records

It is clear that personnel records of public employees, such as municipal police officers, are public records. Peter Block, a Milwaukee assistant city attorney and author of The Wisconsin Public Records and Open Meetings Handbook, explains that any question about disclosure of information under the public records law begins with this basic issue: Is the record covered by the law?

Under Wis. Stat. section 19.32(2), a “record means any material on which written, drawn, printed, spoken, visual or electromagnetic information or electronically generated or stored data is recorded or preserved, regardless of physical form or characteristics, that has been created or is being kept by an authority.”

An authority, under Wis. Stat. section 19.32(1), is “a state or local office, elective official, (or) agency,” which clearly includes entities such as town and city police departments.

Access to Public Records: Absolute or Restricted?

Although there is a general presumption of openness of public records, the public’s right of access is not absolute.

You suspect that a police officer’s records might fall into an exception to the right of access. However, according to the Handbook,“[t]here is no blanket exception to disclosure of records from a closed investigation of alleged law enforcement employee misconduct. Records of the investigation may be disclosed under the public records law, subject to the required balancing test.”

Wisconsin courts’ repeated mention of the strong public interest in disciplinary actions taken against public officials and employees, especially those employed in a law enforcement capacity, suggests to you, in our scenario, that perhaps Mr. S’s quest to see his neighbor’s work records will be easier than you first guessed.

But cases discussed in the Handbook show that records custodians and Wisconsin courts have found many reasons to preserve the privacy of law enforcement employees’ records. The balancing test requires comparing the harm to the public arising from disclosure of the records to the benefit to the public of opening the records to examination.

As Block points out in chapter 5 of the Handbook, balancing-test decisions are fact-specific but also subject to somewhat unsettled case law.

Even Without a Blanket Exception, Access to Personnel Records Is Not Assured or Automatic

The balancing test is not the final hurdle for Mr. S. Sometimes, the subjects of records must be notified about record requests. According to Block, “after conducting the balancing test, the custodian must notify any record subject if any of the responsive records are records relating to a closed investigation into a disciplinary matter involving the employee, or to a possible employment-related violation of a statute, ordinance, rule, regulation, or policy by the employee.”

When you tell Mr. S that Mr. T might be notified if Mr. S requests his records, he says he has learned that Mr. T is now retired. Does ex-employee status eliminate the notification requirement?

It does not. As discussed in the Handbook, the Wisconsin attorney general recently opined that Wis. Stat. section 19.356(2)(a)1 requires that notice be provided to both current and former employees, if the record requested was generated as a result of an investigation into a disciplinary matter involving the employee or possible employment-related violation of a statute, ordinance, rule, regulation, or policy by the employee. If the record subject was an employee when the record was created, he or she is entitled to notice, even if he or she is no longer employed by the authority when the request for records is made.

The appeal of seeing his neighbor’s work records is rapidly diminishing for Mr. S. You advise him that although it certainly is possible his record request would be fulfilled, he might want to take a different approach (such as face-to-face conversation) to learning more about Mr. T. Mr. S agrees.

You write down two accomplishments for the day: heading off a possible dispute, and realizing again the value of The Wisconsin Public Records and Open Meetings Handbook.

How to Order

The Wisconsin Public Records and Open Meetings Handbook is available to members in print for $140 and to nonmembers for $175, and online via Books UnBound®, the State Bar’s interactive online library.

Annual subscriptions to Books UnBound®, the State Bar’s interactive online library, start at $175 per title and $799 for the full library (single-user prices; call for law-firm pricing).

For more information or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.