School can release pornographic images

Freedom of Information | Feature | May 15, 2007

NEWS MEDIA UPDATE   ·   WISCONSIN   ·   Freedom of Information   ·   May 15, 2007


School can release pornographic images

  • Copyrighted pornography culled from a public school teacher's computer is not exempt from release under state public records law.

May 15, 2007  ·   Wisconsin's public records statute does not prevent a school district from releasing copies of pornographic images a teacher viewed on his classroom computer.

In February 2006, the Milwaukee Journal-Sentinel requested the material from adult websites contained on the computer of Robert Zellner, a public school teacher who was fired by the Cedarburg School District for viewing the pornography while in his classroom.

On Tuesday, the Supreme Court ruled that school district could release copies of a compact disc of the images it created during the course of its investigation into Zellner's conduct, even though the pornography was copyrighted and despite the fact that Zellner was in the process of appealing his punishment.

The court said the copyright exception to the Wisconsin public records statute was not so broad as to block the release of these adult images because the marketability or value of the pornography will not be negatively impacted if they are distributed.

"I think overall this court is a good victory for public access in Wisconsin," said Jennifer Peterson, attorney for the Journal-Sentinel. "It provides good clarity on the Wisconsin open records law."

The Reporters Committee for Freedom of the Press, joined by a coalition of other media groups, filed a friend-of-the-court brief in the case, arguing that Zellner did not have the ability to challenge the release of the records in court because he did not own the copyright interest that he alleged would be violated by the pornography's release.

The Supreme Court disagreed, ruling that Zellner could sue based on an alleged copyright violation simply because he would be "adversely affected" by the release of the images, and it did not matter that Zellner held no direct copyright ownership.

In ordering the records released, the Justices also rejected Zellner's argument that because he was simultaneously appealing the punishment doled out by the school district, the images should not be released. Wisconsin law prevents the release of certain documents related to ongoing investigations, and Zellner said that public access to the compact disc sought by the Journal-Sentinel should be limited because the school district created it after he had been fired.

The court rejected that argument, saying "investigation" includes only what the public agency does leading up to the possible disciplining of an employee.

"We hold that … the investigation of Zellner was 'disposed of' when he was terminated and that, therefore, the CD and the memo were not exempt from disclosure," Justice N. Patrick Crooks wrote for the court.

In a separate court proceeding, Zellner is challenging the district's ability to fire him.

(Zellner v. Cedarburg School District, Jennifer L. Peterson, LaFollette Godfrey & Kahn, Madison, Wis.) -- NW


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