July 5, 2018 – A newspaper reporter requested records on “closed complaints” against a professor at U.W.-Oshkosh. The professor challenged the request, but a state appeals court recently ruled that nothing bars the records from being released.
The reporter made the open records request in 2017 and the University’s records custodian was prepared to release partially redacted copies, which pertained to an investigation of a complaint against Professor Willis Hagen II.
Hagen commenced an action to enjoin, but a circuit court found no basis for doing so, concluding the public interest in disclosure outweighed Hagen’s concern that release would damage his reputation. The circuit court also struck some of the redactions.
In Hagen v. Board of Regents of the University of Wisconsin System, 2017AP2058-AC (June 20, 2018), the District II Wisconsin Court of Appeals affirmed, concluding no statutory exception or common law limitation outweighed the public interest.
Professor Hagen argued that a statutory exception to release did exist, under Wis. Stat. section 19.36(10)(d), which applies to employee personnel records, specifically, information related to “staff management planning,” including performance evaluations.
“This court has made clear, however, that once the investigation into possible misconduct by a public employee is completed, para. (10)(d) does not exempt records of the investigation from disclosure,” wrote Chief Appeals Court Judge Lisa Neubauer
“The circuit court correctly determined that no statutory exception exists for records of closed misconduct investigations.”
The three-judge panel also conducted a balancing test, under common law, to determine whether inspection would result in harm to the public interest that outweighed the strong public interest in allowing inspection of public records.
Hagen argued that allowing release of such records would have a chilling effect on the state’s ability to attract and hire qualified public employees.
“Releasing records relating to misconduct investigations is unlikely to discourage recruitment of good teachers,” Chief Judge Neubauer wrote.
“Indeed, it is as likely that current or prospective employees would view the release as appropriately transparent and favoring accountability.”
The appeals court noted that the records would remain under seal for 30 days to allow Hagen to file an appeal to the Wisconsin Supreme Court, if he wished to do so.
