Justices find disclosure outweighs right to privacy
From the Summer 2002 issue of The News Media & The Law, page 42.
The Wisconsin Supreme Court on July 2 upheld a decision allowing the release of a police report of an investigation of a high school teacher’s conduct toward some female students.
The court voted unanimously 7-0 in its decision affirming the release of a report concerning Armand Linzmeyer, a math teacher and volleyball coach at Neenah High School in Neenah, Wis. Linzmeyer allegedly made inappropriate statements and engaged in misconduct toward some of his female students, a complaint corroborated by other students.
“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,” wrote Justice Jon P. Wilcox in the court’s decision. “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.”
Parents of the students and The Post-Crescent of Appleton sued Neenah Police Department Chief D.J. Forcey for release of the report.
Post-Crescent staff writer Duke Behnke had asked for it on assignment as the Neenah reporter. In addition, parents of the students were upset that the school would not release details of the investigation.
The whole affair snowballed as the Wisconsin Freedom of Information Council, state newspaper association, Wisconsin Education Association Council, Wisconsin Professional Police Association, and parents got involved.
Neenah city attorney James Gunz reviewed the police report after a request for its release and notified Linzmeyer under rules established under the state high court’s decisions in Woznicki v. Erickson and Milwaukee Teachers’ Education Ass’n v. Milwaukee Bd. of School Directors. (See NM&L, Summer 1999)
In Woznicki, the court established a requirement saying a person must be notified before documents regarding him or her are released and given a reasonable opportunity in court to appeal and prevent their release to protect privacy interests.
Furthermore, the court’s decision in MTEA expanded the notice requirement in Woznicki to apply to all public records.
Open records advocates have generally derided Woznicki and MTEA as poor decisions because of the extra step now required to disclose what could normally be considered as a public record.
Courts still have to make a factual determination before the public records are released, said Sandra K. George, executive director of the Wisconsin Newspaper Association.
“Every case is decided based upon the particular facts of the case,” she added. “It’s an arduous situation where each time you have to end up in the Supreme Court.”
Linzmeyer, who worked for Neenah High School for nearly 30 years, objected and sought an injunction in Winnebago County Circuit Court to prevent its release.
Winnebago County Circuit Court allowed the release of the report under Wisconsin’s Open Records Law, even though the police investigation did not result in an arrest. The court used the rationale of the state’s Open Records Law that public records, such as police reports, are open for inspection unless certain statutory or common law exemptions apply.
Linzmeyer appealed the lower court’s decision, which, through certification by the Court of Appeals, went to the state Supreme Court.
Linzmeyer’s attorney Leonard Kachinsky called the lower court decision an “erroneous exercise of discretion” and wrote in his brief that the state’s Open Records Law reflects a public policy against the disclosure of investigative records since an individual’s privacy or reputational interests outweigh the public disclosure of the information.
“His interest in personal privacy would be decimated by the release of a public report that did not even uncover evidence sufficient to charge an ordinance violation,” argued Kachinsky.
The Wisconsin Freedom of Information Council, the Wisconsin Newspaper Association, the Wisconsin Broadcasters Association and The Post-Crescent also filed an amicus brief in the Supreme Court favoring the report’s release, arguing that this is merely a case of records involving allegations of public employee misconduct suitable for disclosure.
“The issue here is the balance between the public’s interest in the contents of that investigative report versus the public’s interest in protecting Linzmeyer’s privacy and reputational interests,” the amicus parties argued. “That balance is not even a close call.” Furthermore, the public had a right to see the report because it was a final report, and that, if an adverse decision was released, “accountability would be lost.”
Justice Jon Wilcox said that under Woznicki‘s balancing test, which weighs the public policy in an item’s disclosure against the public interest favoring privacy and nondisclosure, Linzmeyer failed to prove an interest in favor of nondisclosure stronger than his concern that the records would cause him embarrassment. Linzmeyer would even have difficulty claiming embarrassment, Justice Wilcox wrote, since the statements he allegedly uttered were in front of large groups of students.
By contrast, the public has an interest in the oversight of police investigations and in the scrutiny of potential misconduct of school officials, the judge wrote.
“As a teacher, Linzmeyer is in the public eye, and is charged with the important societal responsibility of educating children,” wrote Wilcox. “Thus, Linzmeyer’s position is one where the public should be able to expect some increased accountability.”
Wilcox said sensitive information in the document can be blacked out or redacted under the statute, and “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.”
Linzmeyer was not arrested, prosecuted or disciplined by the school system based on information in the report, and he resigned after being reassigned to other duties.
“It’s still the same problem,” added George. “It was a victory since we got the document, but [Linzmeyer] didn’t get us as far as we would have liked.” (Linzmeyer v. Forcey) — MFS