Armand Linzmeyer v. D.J. Forcey
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2002 WI 84 SUPREME COURT CASE NO.: OF WISCONSIN 01-0197 COMPLETE TITLE: Armand Linzmeyer, Plaintiff-Appellant, v. D.J. Forcey, Defendant-Respondent. ON CERTIFICATION FROM THE COURT OF APPEALS OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 2, 2002 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Winnebago Barbara H. Key JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 2, 2002 ABRAHAMSON, C.J., concurs (opinion filed). ATTORNEYS: For the plaintiff-appellant there was a brief by Leonard D. Kachinsky and Kachinsky & Petit Law Offices, Neenah, and oral argument by Leonard D. Kachinsky. For the defendant-respondent there was a brief (in court of appeals) by James B. Gunz, city attorney, Neenah. the An amicus curiae brief was filed by Robert J. Dreps, Kendall W. Harrison and La Follette Godfrey & Kahn, Madison, on behalf of the Wisconsin Newspaper Association, the Wisconsin Broadcasters Association, the Wisconsin Freedom of Information Council, and the Post-Crescent, with oral argument by Kendall W. Harrison. An amicus curiae brief was filed by Gordon E. McQuillen, Madison, on behalf of the Wisconsin Professional Police Association. An amicus curiae brief was filed (in the court of appeals) by Bruce Meredith, Melissa A. Cherney, and Chris Galinat, Madison, on behalf of the Wisconsin Education Association Council, with oral argument by Bruce Meredith. 2 2002 WI 84 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-0197 (L.C. No. 00 CV 1098) STATE OF WISCONSIN : IN SUPREME COURT Armand Linzmeyer, FILED Plaintiff-Appellant, v. JUL 2, 2002 D.J. Forcey, Cornelia G. Clark Clerk of Supreme Court Defendant-Respondent. APPEAL from a judgment of the Circuit Court for Winnebago County, Barbara H. Key, Judge. ¶1 court JON P. WILCOX, J. judgment that allowed Affirmed and cause remanded. In this case, we review a circuit the release of a Neenah Police Department (NPD) report under the Wisconsin Open Records Law, Wis. Stat. § 19.31-.39 (1999-2000).1 The police report was made pursuant to an investigation of Armand Linzmeyer, a teacher at Neenah High School (NHS). was based did not lead The investigation on which the report either to Linzmeyer's arrest or his prosecution, and the Neenah Joint School District did not use 1 All references to the Wisconsin Statutes are to the 19992000 version unless otherwise indicated. No. 01-0197 the report to initiate any administrative disciplinary action against Linzmeyer. The investigation was closed by the time the open records request was made. ¶2 The Appleton Post-Crescent newspaper ("the Post- Crescent") and the parents of two NHS students sought release of the investigation report. The Neenah City Attorney planned to release the report in the absence of judicial action. then sought an injunction from the circuit court Linzmeyer to prevent release of the report. ¶3 The Winnebago County Circuit Court, Barbara H. Key, Judge, concluded that the public's interest in the disclosure of the report outweighed the public's interest in the protection of Linzmeyer's reputation or request for an injunction. privacy, and denied Linzmeyer's Linzmeyer appealed the decision, and the court of appeals certified the case to this court. accepted the court's ruling certification, and remand and the we case now to affirm the the circuit We circuit court to assess what, if any, redaction is necessary. I ¶4 The essential facts of the case are not in dispute. Linzmeyer was a mathematics teacher and the girls' volleyball coach at NHS. During November and December 2000, the NPD conducted an investigation into allegations that Linzmeyer had made inappropriate statements to, and had engaged in inappropriate conduct with, a number of his female students.2 2 However, none of the complaints against Linzmeyer alleged sexual assault or any other type of assaultive behavior. 2 No. The investigation was triggered by allegations from 01-0197 two of Linzmeyer's students and involved interviews of more than 20 students. As a result of the investigation, NPD created Report No. 00-11938 ("the Report"), information obtained Linzmeyer. Respondent D.J. Forcey, as the chief of police, was by the which NPD was during a compilation investigation its of of the custodian of the Report. ¶5 any Linzmeyer was neither arrested nor prosecuted based on information contained in the Report. Additionally, the Neenah Joint School District did not take any administrative disciplinary action against Linzmeyer as a result of the Report or as a result of any information contained therein. district reassigned Linzmeyer to other duties The school and Linzmeyer agreed to resign his position at the end of the school year. ¶6 The parents of the two students whose allegations had initiated the investigation, requested release Linzmeyer subsequently of the along with Report under filed suit in the the Post-Crescent, open the records Winnebago law. County Circuit Court, seeking an injunction to block the release of the Report. ¶7 At a hearing on January 11, 2001, the Neenah City Attorney, James Gunz, confirmed that no enforcement action was contemplated against Linzmeyer as a result of the Report. Gunz also stated that the City intended to release the report in a redacted form, public records. based on the policy favoring the release of After reviewing the report independently, the circuit court denied Linzmeyer's request for an injunction. 3 No. ¶8 01-0197 The circuit court held that, as a public record, the Report carried the presumption of complete access, which could only be overcome by an overriding public interest in keeping the records confidential. The court noted that, as a public school teacher, Linzmeyer was in a position of public trust. Thus, the public had an interest in knowing the circumstances surrounding the accusation that Linzmeyer had made inappropriate remarks toward students. The circuit court noted that, although the information embarrassing was and might harm Linzmeyer's reputation, the statements Linzmeyer was accused of having made were spoken in open class in front of large groups of students, and many were corroborated by other students or later admitted by Linzmeyer argument. interest himself, The in thus circuit disclosure countering court Linzmeyer's concluded outweighed the that the public's privacy public's interest in Linzmeyer's reputation or privacy, and denied the injunction. ¶9 The circuit court then granted Linzmeyer a temporary injunction so he could seek an appeal. The court of appeals granted Linzmeyer leave to appeal the circuit court's order, and certified the appeal to this court. We accepted certification and we now affirm the circuit court's order. the We hold that the open records law applies to the Report in this case and there is thus a strong presumption in favor of release. Additionally, we hold that the presumption was not overridden in this case by the public interest privacy and reputation. 4 in protecting Linzmeyer's No. 01-0197 II ¶10 We address the issues presented here in two steps. First, we determine whether the open records law applies to the record in question here the report of a police investigation where the investigation enforcement action has has been been taken closed, or is and where contemplated. no In determining whether the open records law applies, we look at the statutory language of that law, along with its statutory and common law exceptions. If the basic open records law applies, there are no blanket exceptions from release, other than those provided by the common law or statute. Woznicki v. Erickson, 202 Wis. 2d 178, 183, 549 N.W.2d 699 (1996). Here, we hold that the open records law applies, and that no statutory or common law exceptions exempt the Report from release. ¶11 the Because we hold that the open records law applies to Report, our second issue is whether the presumption of openness under the open records law is overcome by any other public policy. We have recognized that openness, although strong, is not absolute. the policy toward Milwaukee Teachers' Educ. Ass'n v. Bd. of Sch. Dirs., 227 Wis. 2d 779, 787, 596 N.W.2d 403 (1999). In the absence of a statutory or common law exception, the presumption favoring release can only be overcome when there is a public policy interest in keeping the records confidential. Wis. 2d 768, Green Bay Wis. Newspress v. Sheboygan Falls Sch. Dist., 199 776, Sch. 546 Dist., N.W.2d 143 116 (1996) Wis. 2d 388, 5 (citing 397, 342 Hathaway v. N.W.2d 682 No. (1984)). 01-0197 Thus, our second step is to determine if there is a public policy that overrides the presumption of openness. ¶12 To determine whether the presumption of openness is overcome by balancing another test public articulated policy by concern, this court we in apply the Woznicki v. Erickson, 202 Wis. 2d 178, and Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979). public policies not in favor of That is, we must weigh the release against the strong public policy that public records should be open for review. In weighing the public policies for and against release in this case, we also take the opportunity to provide some guidance on dealing with the open records law as it relates to police records, and we attempt to identify factors that should be taken into consideration by records custodians before law enforcement records are publicly released. In this case, however, we ultimately conclude that the presumption for openness is not overcome by any other public policy, and we thus affirm the order of the circuit court. A ¶13 Our first issue is whether applies to the Report in this case. the open records To decide this question, we apply the open records law to an undisputed set of facts. is a matter of statutory law interpretation, which we This review independently of the lower courts, but benefiting from their analyses. Milwaukee Teachers, 227 Wis. 2d at 788. 6 No. ¶14 The regarding legislature the has release Wis. Stat. § 19.31. clearly of the articulated government 01-0197 policy records in In that section, the legislature stated: . . . [I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied. Additionally, Wis. Stat. § 19.35(1)(a) provides that: Except as otherwise provided by law, any requester a right to inspect any record. Substantive common principles construing the right to inspect, copy receive copies of records shall remain effect. . . . ¶15 As we stated, general records shall have Wis. 2d at 776. consistently presumption be open to of the our recognized, law public. is the that Wis. has law or in all clearly public Newspress, 199 This presumption reflects the basic principle that the people must be informed about the workings of their government and that openness in government is maintain the strength of our democratic society. essential to Breier, 89 Wis. 2d at 433-34. Here, the parties do not dispute the fact that is the Report a public 7 record, as defined by No. Wis. Stat. § 19.32(2).3 So begin presumption with the strong as with other public favoring 01-0197 records, we release of the Report. ¶16 Given that the open records law generally applies, we next examine several relevant statutory exceptions that could arguably exempt the Report from release under the open records law. Upon review, however, we hold that none of them prevent the open records law from applying to the present case. ¶17 We first look at Wisconsin Stat. § 19.35(1)(am). That section provides, in relevant part: . . . [A]ny requester who is an individual or person authorized by the individual, has a right to inspect any record containing personally identifiable information pertaining to the individual that is maintained by an authority and to make or receive a copy of any such information. The right to inspect or copy a record under this paragraph does not apply to . . . . . . . 1. Any record containing personally identifiable information that is collected or maintained in connection with a complaint, investigation or other circumstances that may lead to an enforcement action, administrative proceeding, arbitration proceeding or court proceeding, or any such record that is collected or maintained in connection with such an action or proceeding. . . . 3 "Record" is defined as "any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded or preserved, regardless of physical form or characteristics, which has been created or is being kept by an authority . . . ." Wis. Stat. § 19.32(2). 8 No. 01-0197 2. Any record containing personally identifiable information that, if disclosed, would do any of the following: a. Endanger an individual's life or safety. b. Identify a confidential informant. c. Endanger the security, including the security of the population or staff, of any state prison . . . secured correctional facility, . . . secured child caring institution, . . . secured group home, . . . mental health institute, . . . or center for the developmentally disabled. . . . d. Compromise the rehabilitation of a person in the custody of the department of corrections or detained in a jail or facility identified in subd. 2. c. These sections clearly prevent the release of law enforcement records under some circumstances. the Report in this case.4 from release connection when with circumstances administrative that they a However, they do not apply to Section 19.35(1)(am)1 exempts records are collected complaint, may lead proceeding, proceeding" (emphasis added). to or maintained investigation an arbitration or enforcement proceeding "in other action, or court This is not the situation here, where the investigation has been closed and where it has been 4 Because Wis. Stat. § 19.35(1)(am) only applies to "[A]ny requester who is an individual or person authorized by the individual" who requests the release of "any record containing personally identifiable information pertaining to the individual," this section does not apply to the request made by the Post-Crescent in this case. Our analysis of sub. (1)(am) is only as the section applies to the families of the two students who requested release of the report, assuming that they are "authorized" by the students identified in the Report. 9 No. 01-0197 confirmed that there is no chance that the Report will "lead to an enforcement action." ¶18 The exception under subparagraph (am)1 would most likely apply to a police investigation that was still on-going, an investigation where the government was still contemplating prosecution, or an investigation that overlapped with other ongoing cases. Here, however, the Report is a closed police file, where no enforcement action was ever taken against the subject, where it has been confirmed that no enforcement will be taken in the future, and where the investigation was not related to any other on-going investigations. Thus, Wis. Stat. § 19.35(1)(am)1 does not exempt the Report from release under the open records law. ¶19 also The exception in subparagraph 2 of that same section does not confinement apply. facility No was correctional involved, institution there is no or other evidence of anyone's life or safety being at risk, and none of the students interviewed was a confidential informant. ¶20 Likewise, Wis. Stat. § 19.36(8)(b) does not exempt the Report from disclosure. At most, that section might require the redaction of the identities of the persons interviewed by the NPD during the course of the investigation. Section 19.36(8)(b) provides: If an authority that is a law enforcement agency receives a request to inspect or copy a record or portion of a record under s. 19.35(1)(a) that contains specific information including but not limited to a name, address, telephone number, voice recording or handwriting sample which, if disclosed, would identify 10 No. 01-0197 an informant, the authority shall delete the portion of the record in which the information is contained or, if no portion of the record can be inspected or copied without identifying the informant, shall withhold the record unless the legal custodian of the record, designated under s. 19.33, makes a determination, at the time that the request is made, that the public interest in allowing a person to inspect, copy or receive a copy of such identifying information outweighs the harm done to the public interest by providing such access. Wis. Stat. § 19.36(8)(b). An informant, under the statute is: an individual who requests confidentiality from a law enforcement agency in conjunction with providing information to that agency or, pursuant to an express promise of confidentiality by a law enforcement agency or under circumstances in which a promise of confidentiality would reasonably be implied, provides information to a law enforcement agency or, is working with a law enforcement agency to obtain information, related in any case to any of the following: a. Another person who the individual or the law enforcement agency suspects has violated, is violating or will violate a federal law, a law of any state or an ordinance of any local government. b. Past, present or future activities that the individual or law enforcement agency believes may violate a federal law, a law of any state or an ordinance of any local government. Wis. Stat. § 19.36(8)(a)1. number of other students Although the cooperated with complainants the NPD and during a the investigation, none apparently did so in exchange for a promise of confidentiality. students may have Although it is arguable that some of the acted under circumstances that reasonably implied a promise of confidentiality, this court is not in a position redaction to of determine personal whether that information 11 is was the case. necessary, it If is any more No. appropriate that the circuit information must be redacted.5 court assess what 01-0197 specific Even if redaction is necessary, however, this section does not bar the release of the Report as a whole. ¶21 Section 19.36(2) could also potentially apply to exclude a law enforcement report from release under the open records law. That section provides: Except as otherwise provided by law, whenever federal law or regulations require or as a condition to receipt of aids by this state require that any record relating to investigative information obtained for law enforcement purposes be withheld from public access, then that information is exempt from disclosure under s. 19.35(1)(am). Linzmeyer, however, does not show us any federal laws or regulations of the type required that would mandate withholding of the record in this case. Thus, we conclude that this section does not prevent the application of the open records law to the Report. ¶22 Finally, we consider Wis. Stat. § 19.85(1). That section states: Any meeting of a governmental body, . . . may be convened in closed session under one or more of the exemptions provided in this section. . . . A closed session may be held for any of the following purposes: . . . . 5 Although we do not make an explicit ruling on redaction here, we anticipate that redaction will likely be necessary. In a January 2, 2001, letter to Linzmeyer's attorney, Neenah City Attorney James Gunz expressed that the City's original intention was to release the Report in a redacted form. 12 No. 01-0197 (b) Considering dismissal, demotion, licensing or discipline of any public employee or person licensed by a board or commission or the investigation of charges against such person, or considering the grant or denial of tenure for a university faculty member, and the taking of formal action on any such matter; . . . . . . . (f) Considering financial, medical, social or personal histories or disciplinary data of specific persons, preliminary consideration of specific personnel problems or the investigation of charges against specific persons except where par. (b) applies which, if discussed in public, would be likely to have a substantial adverse effect upon the reputation of any person referred to in such histories or data, or involved in such problems or investigations. This statutory section certainly indicates a policy toward protecting information involved in disciplinary actions against public officials. However, to hold that the Report is exempted from the open records law under this section is quite a stretch. First, this section specifically applies to meetings government bodies, of which the Report is not part. of Second, even if we held that the Report did qualify under this section, this statute, like Wis. Stat. § 19.35(1)(am)1, contemplates the potential for disciplinary action. As a closed investigation with no potential for future action, the Report clearly falls outside of the scope of this exemption. ¶23 Finally, Linzmeyer does not show us any common law exception to the open records law that would exempt the Report in this case from release. Thus, because the Report is a public record under the open records law, and there is no statutory or 13 No. common law exception, we conclude that the open 01-0197 records law applies, and that the presumption of openness attaches to the Report. B ¶24 applies Because to we the hold that Report, we the must presumption next of decide openness whether that presumption can be overcome by a public policy favoring nondisclosure of the Report. The fundamental question we must ask is whether there is harm to a public interest that outweighs the public interest in Wis. 2d at 433. novo. inspection of the Report. Breier, 89 This is a question of law, which we review de Id. at 427. ¶25 In determining whether a public policy exists to overcome the presumption of openness, we apply a balancing test on a case-by-case inspection interest of the which basis records outweighs records to inspection. harm to the to determine would the result public whether in harm interest permitting to in a opening Woznicki, 202 Wis. 2d at 183-84. public interest caused by release public the If the overrides the public interest in release, the inspection of the public records may be prevented in spite of the general policy of openness. Id. ¶26 In this case, we are dealing with the record of a police investigation, so we take special care as we balance the public policies. Reports of police investigations, despite being public records, can be particularly sensitive regardless of whether or not the underlying investigations are on-going. 14 No. Custodians of police records thus have the 01-0197 difficult responsibility of weighing the public policies for and against release. Because of the sensitivity of law enforcement records, we take particular note of several important public policies that weigh for and against their release. In doing so, however, we ultimately disagree with Linzmeyer's argument, and hold that the public policy favoring release has not been overcome in this particular case. ¶27 There are a number of matters of public interest that support the release of the Report. First, the process of police investigation is one where public oversight is important. The ability of police to investigate suspected crimes is an official responsibility of an executive government agency, and much like the ability government to arrest, personnel, Wis. 2d at 436. used it time, represents and a significant resources. See use of Breier, 89 The investigative process is one that, when inappropriately, investigating agency's can be harassing decisions regarding or whom worse. to The interview, which leads to follow, and when to recommend further action to prosecuting authorities are also discretionary, and are generally matters of public interest that support public release of the Report. ¶28 a public likewise Additionally, as a public school teacher, Linzmeyer is employee in a supports public position scrutiny of some of visibility. potential This misconduct, particularly if it occurs in the school and classroom settings. As the court of appeals noted in Journal/Sentinel v. Shorewood 15 No. 01-0197 School Board, 186 Wis. 2d 443, 459, 521 N.W.2d 165 (Ct. App. 1994), "[a]ll officers and employees of government are, ultimately, responsible to the citizens, and those citizens have a right to hold their employees accountable for the job they do." 685, See also State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965). Here, the misconduct allegedly occurred in the location where the public has entrusted him to work and during the performance of his public duties, and therefore should be more subject to scrutiny. ¶29 Understandably, the mere fact that Linzmeyer is a public employee does not weigh as strongly for release of the Report as it might if Linzmeyer were an elected official, or if he were a more senior policy-making official within the school district. Still, as a teacher, Linzmeyer is in the public eye, and is charged with the important societal responsibility of educating children. Thus, Linzmeyer's position is one where the public should be able to expect some increased accountability. ¶30 record Still, despite the factors that support opening the to enforcement the public, investigation particularly sensitive. the Report which, as is a record we have of noted, a law can be Law enforcement records are generally more likely than most types of public records to have an adverse effect on other public interests if they are released. First and foremost, there is a strong public interest in investigating and prosecuting criminal activity, and when the release of a police record would interfere with an on-going prosecution or investigation, the general presumption of openness will likely 16 No. be overcome. Similarly, the release of police some 01-0197 records might endanger the safety of persons involved in that report another strong public policy reason which would work against release. ¶31 As we have found in other cases, the public interest in protecting the reputation and privacy of citizens may also be a factor that favors nonrelease. Woznicki, 202 Wis. 2d at 187; Breier, 89 Wis. 2d at 430; Youmans, 28 Wis. 2d at 685. This public interest is not equivalent to an individual's personal interest in protecting his or her own character and reputation. For instance, we have recognized that the disclosure of certain public records might result in fewer qualified applicants for public positions where their privacy would be regularly intruded upon. Vill. of Butler v. Cohen, N.W.2d 579 (Ct. App. 1991). 163 Wis. 2d 819, 831, 472 Similarly, some personnel files might not be releaseable because the persons whose records are released might be less willing to testify in court when faced with the potential that contents of their personnel interest in protecting arises from the public they would be file. Id. individuals' effects of cross-examined Thus, privacy the and failure to the on the public reputation honor the individual's privacy interests, and not the individual's concern about embarrassment. ¶32 We note that the federal Freedom of Information Act (FOIA), 5 U.S.C. 552 (2000), quite concisely lists factors that support these public policies. Under 5 U.S.C. 552(b)(7), the 17 No. FOIA exempts law enforcement records from public 01-0197 disclosure under the following circumstances: [when] the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, . . . , (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual. ¶33 Admittedly, there is some overlap between the FOIA policies, the statutory exemptions in the Wisconsin open records law, and the public policies that we have already identified. However, when coupled with our prior caselaw, these factors provide a framework that records custodians can use to determine whether the presumption of openness in law enforcement records is overcome by another public policy. Applying this framework to the present case, we conclude that the public interests in preventing disclosure do not outweigh the public interest in release of the information. ¶34 of Linzmeyer relies heavily on our stated public policy protection incorrectly interest in of privacy weighed open to argue this public records, and 18 that interest that the the circuit against public the court public interest in No. protecting Linzmeyer's reputation and privacy public interest in release of the Report. ¶35 01-0197 outweigh the We disagree. Having reviewed the Report, we admit that release of the Report could cause some embarrassment to Linzmeyer and that it could possibly cause some damage to his reputation. However, as personal we have mentioned, it is not Linzmeyer's embarrassment that we are concerned about in applying this test. Rather, we must ask whether releasing the Report under the present circumstances would affect any public interest. ¶36 would Linzmeyer give reputation. rise fails to a to show public us how this interest in embarrassment protecting his This is a police report, which details information surrounding allegations of misconduct by Linzmeyer that occurred at school and in the classroom. Its release will not dissuade qualified persons from applying to be teachers, as the release of their personnel Wis. 2d at 831. files might. See Vill. of Butler, 163 Similarly, it will not impede the ability of the vast majority of teachers to perform their jobs. If there is any negative effect from the release of the Report, it will be on Linzmeyer as an individual, and not on the public interest. ¶37 To the contrary, a number of the characteristics of this specific case actually undercut the notion that a public interest would be damaged by the release of the Report. the allegations against Linzmeyer involved inappropriate interactions with his students. First, possible The statements in question were made publicly, and many were corroborated by other 19 No. students, or even admitted by Linzmeyer himself. of appeals has previously recognized, 01-0197 As the court information that is already known to the public is germane to the balancing test. Kailin v. Rainwater, 226 Wis. 2d 134, 148, 593 N.W.2d 865 (Ct. App. 1999). The fact that much of the activity was already public, and could be corroborated, mitigates, to some extent, any embarrassment that might be caused by the release of the Report, and tends to even weigh in favor of release. ¶38 many We caution, however, that this is not an attribute of police reports. Police reports regularly contain raw investigative data, which is gathered from witnesses of varying degrees of reliability. It would not be unusual to find statements in a police report involving rumor, multiple levels of hearsay, or other characteristics that make the veracity of the statements questionable. bias against interviewed. here, where the subject Likewise, witnesses who have a of the investigation may have been The release of this type of information unlike the actions in question were public and well- corroborated would weigh more greatly in favor of the public policy of protecting a person's reputation interests, and would likely support nondisclosure of the record. ¶39 impede Additionally, the public criminal activity. the policy release of of the Report investigating and will not prosecuting First, there is no way that release could reasonably be expected to interfere with on-going enforcement proceedings. investigation This has been is particularly closed and 20 no true further because the enforcement or No. disciplinary proceedings contemplated. based on the 01-0197 investigation are For similar reasons, release of the Report would not deprive anyone of a right to a fair trial or an impartial adjudication. In sum, we see no way that the release of the Report would affect on-going enforcement proceedings. ¶40 release disclose Furthermore, of the the for Report identity reasons we discussed could not of confidential a reasonably be above, the expected to source, because there was no confidential informant. primarily Understandably, the students who were interviewed may have some privacy interest in protecting their own identities, both because they participated with the investigation and because they are minors. However, to the extent that those privacy interests are implicated, they could be protected by a redaction of the Report in accordance with Wis. Stat. § 19.36(6). ¶41 for There is also no threat that techniques and procedures law enforcement investigations or revealed if the Report is disclosed. prosecutions would be The investigation here consisted of a series of interviews a well known and widely practiced police investigation technique. This was not a sting operation or undercover operation that would require secrecy to protect the identity of particular sources and techniques. We also note that there is very little chance that the release of the Report would reasonably be expected to endanger the life or physical safety of any individual. ¶42 In sum, we hold that there is no public policy which, in this case, would overcome the presumption of openness. 21 We No. caution, records however, are that this immediately does open to not mean complete that public simply because there is a decision not to charge. 01-0197 all police disclosure, We emphasize again that the balancing test must be done on a case-by-case basis, to ensure that the public policies for and against release are assessed. III ¶43 We conclude that the open records law does apply to the Report in this case. Linzmeyer is unable to show us any statutory or common-law exceptions that would take the Report out of the purview of the open records law. Additionally, Linzmeyer has not shown a public policy that would override the general public policy, which requires public records to be open to public disclosure. Thus, we affirm the decision of the circuit court and remand the case for appropriate redaction, if necessary. By the Court. The order of the circuit court is affirmed and the cause is remanded. 22 No. ¶44 SHIRLEY S. I join the opinion. the persons have ABRAHAMSON, CHIEF JUSTICE 01-0197.ssa (concurring). I write to express my concern whether all been notified or will be notified of the release of the records as required by Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996) (Abrahamson, J., dissenting) and Milwaukee Teachers' Educ. Ass'n v. Milwaukee Bd. of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999). Unfortunately I must accept Woznicki as binding precedent. 1 No. 1 01-0197.ssa
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