Fixing Bad Judicial Rulings with Good Laws

From the Fall 2003 issue of The News Media & The Law, page 36.

By Rebecca Daugherty

The “Woznicki-fix” is in at last in Wisconsin. A new law alters the disastrous state Supreme Court rulings that have protected the privacy of public employees to the detriment of the public. Those rulings even prevented reporters from seeing public records showing the criminal histories of public school workers.

Congratulations are due to Wisconsin press groups, who have worked tenaciously since 1996 to change the law. And while they did not get all they wanted, the law is a definite improvement.

In a state that has traditionally enjoyed a strong Freedom of Information law, press advocates began their fight to change Wisconsin legislation immediately after the first court decision. An early effort passed the legislature but was vetoed by then Gov. Tommy Thompson, who objected to its inclusion in a budget bill. Act 47 was passed and signed into law last summer on the recommendations of a task force of media groups, their attorneys, public service union attorneys and state legislators from both parties.

In 1996, in Woznicki v. Erickson, the state’s Supreme Court ruled that a person whose reputation might be harmed by the release of public records could challenge the impending disclosure in court. In 1999, in Milwaukee Teachers Education Association v. Milwaukee Board of Education, the Court said the Woznicki decision had given public employees a right to go to court to protest the release of “reputational” facts from agency records, and required that they be notified of impending disclosures before those facts be made public.

Media attorney Robert Dreps, of La Follette and Simykin in Madison, said the new Wisconsin law limits those Woznicki rights. Requirements for notifying public employees and giving them a right to challenge disclosure through the courts will now apply only to disciplinary investigations of public employees, records obtained by subpoena or search warrant, and records of private employees — such as contract employees — in the hands of government agencies.

Ironically, Dreps said, public employees now only have a right to challenge the release of information on the performance of their duties — the very area where they should be accountable for what they do — but that is how the compromise was struck.

The rights of agency and department heads are also more limited under the new law. They have only a right to be notified and to place their own statement in files that will be disclosed.

Press advocates expect the law to curb delays. Now, except where Woznicki still applies, the custodian — and not the court system — will balance public and privacy interests before deciding if a record will be disclosed, without having to notify the subject of the records. The new act also speeds up the process in other ways. Even if Woznicki applies, there are deadlines for challenging disclosure and a requirement that courts give priority to the cases.

The Woznicki case had nothing to do with reporters. A district attorney held a file on Thomas Woznicki, a school employee alleged to have had sex with a student over the age of 16. He dismissed the charges against Woznicki, but told the student’s father and Woznicki’s employer that they could see the file. Woznicki sued successfully to keep it secret, and the high court established that when a reputation was imperiled, there was a right to challenge disclosure.

The impact of Woznicki on journalism was felt all too soon.

The Milwaukee Journal Sentinel had run stories in 1995 showing sexual and physical abuse of school children by employees of the public school system. The story was immediately effective. The school board ran background checks on its 13,500 school employees to identify anyone who might be morally unfit or potentially dangerous to students. It found 548 employees with criminal records.

Reporters Steve Schultze and Mary Zahn reviewed those records, provided by the school board, and wrote careful, sensitive and useful stories, exploring the dilemmas the board faced in deciding what kinds of criminal histories should disqualify current employees from continuing in their jobs.

Eighteen employees were eventually fired or chose to leave, and Schultze and Zahn sought their records. The school administrator considered the departing employees’ privacy interests, and determined that it was “imperative” for him to disclose the records to the public. But first, because of the Woznicki ruling, he notified the former employees of what he intended to do.

Seven objected and, with the backing of the Milwaukee Teachers Education Association, sued to bar disclosure. They claimed, and the state’s Supreme Court ultimately agreed, 4-3, that Woznicki extended a right of court review when records about government employees were requested. Despite the intervention by the Journal-Sentinel, which urged the Court to consider the public’s strong interests in these records, it ruled for the teachers union in July 1999.

Criminal histories of public school teachers and school employees were found to be so personal that their release could depend on a court’s judgment. Every case for disclosure of an employee’s file could be stalled through courts and appeals.

Last year the Wisconsin Supreme Court unanimously agreed that the police could release a report on a Neenah High School math teacher and volleyball coach who allegedly engaged in misconduct against female students. The police report should have been a public record, but the teacher, who was never charged, was able to delay its release by demanding that the decision be made through the courts.

Like the Milwaukee reporters, journalists in Atlanta learned that sometimes good reporting can trigger bad law. In 1999 The Atlanta Journal-Constitution and WSB-TV reported that nearly 3,000 school employees had criminal history records, and that in many of the cases the school system was not aware of these backgrounds. After the stories ran, the Georgia Association of Educators lobbied successfully for a law to halt public access to home addresses and other information about school employees.

John Laabs, executive director of the Wisconsin Broadcasters Association, worked with Dreps on the task force that made recommendations for the new law. He told the Journal Sentinel that the new legislation “doesn’t go far enough.”

“We’d prefer to go back to the days when there was no notice required and all records were considered to be open records,” he said.

So would we.

Rebecca Daugherty is the director of the Freedom of Information Service Center, a project of the Reporters Committee for Freedom of the Press