EMPLOYEE PERSONNEL FILES AND PUBLIC RECORDS REQUESTS
July 17, 2018
Public employers often receive public records requests for the personnel files of their employees. A recent Wisconsin Court of Appeals decision highlights the application of Wisconsin’s Public Records Law to requests for employee personnel records, specifically records involving the investigation of a complaint against a public employee.
Wisconsin’s Public Records Law “shall be construed in every instance with a presumption of complete access.” Wis. Stat. § 19.31. However, there are three (3) instances when this presumption can be overridden: 1) when there is a clear statutory exception to disclosure; 2) when a limitation under common law exists; or 3) an exceptional case, where the public interest favors keeping a public record confidential.
Wisconsin’s legislature has carved out specific statutory exemptions for personnel records of the following kinds:
(a) Information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an employee, unless the employee authorizes the authority to provide access to such information.
(b) Information relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.
(c) Information pertaining to an employee’s employment examination, except an examination score if access to that score is not otherwise prohibited.
(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).
In Hagen v. Board of Regents of the University of Wisconsin System, 2017AP2058-AC (June 20, 2018), the Wisconsin Court of Appeals applied Wisconsin’s Public Records Law to a case involving a reporter’s request for records related to a completed investigation into complaints against Hagen, a professor at the University of Wisconsin-Oshkosh.
After receiving the request, the University of Wisconsin-Oshkosh located and partially redacted the records relevant to the request, prepared them for disclosure, and notified Hagen in compliance with Wis. Stat. § 19.356(2). After receiving notice that the University of Wisconsin-Oshkosh intended to disclose the records, Hagen commenced an action seeking to prevent disclosure.
Hagen’s argument against disclosure focused on two (2) main points. First, he argued the records involving the completed investigations into complaints about him were related to “staff management planning” and were thus exempt from disclosure under Wis. Stat. § 19.36(10)(d). Both the Circuit Court for Winnebago County and the Wisconsin Court of Appeals disagreed with Hagen. The Court of Appeals stressed that Wisconsin courts have made it clear that once an investigation into misconduct by a public employee is complete, Wis. Stat. § 19.36(10)(d) does not exempt records of that investigation from disclosure. In contrast, Wis. Stat. § 19.36(10)(b) exempts ongoing investigations from public disclosure.
Second, Hagen argued that it was in the public interest to exempt his records from disclosure. He contended that disclosure would have a “chilling effect” and make it more difficult for the University of Wisconsin-Oshkosh to attract qualified candidates in the future. Once again, the circuit court and the Court of Appeals disagreed with Hagen.
When a court analyses the public interest element of a public records case, the court conducts a balancing test. The court weighs the public’s interest in the disclosure of the records, against any public interest that might warrant their confidentiality. The Court of Appeals began by recognizing the importance both the Wisconsin courts and the Wisconsin legislature have placed on the disclosure of public records, particularly those related to disciplinary processes within public institutions. With this importance in mind, the court placed a high burden on Hagen to override the presumption of disclosure. The Court of Appeals ultimately concluded that Hagen’s stated “chilling effect” rationale was unpersuasive.
The Hagen decision should serve as a well-articulated refresher to public employers when addressing public records requests involving personnel records. Public employers should bear in mind Wisconsin’s strong presumption in favor of public access and the limited nature of the exceptions to disclosure.
For questions regarding this article, please contact the author, Attorney Colin M. Lane (email: firstname.lastname@example.org; telephone: 844.626.0909), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.
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