Teachers win right to court review before records release

WISCONSIN–Criminal history records of Milwaukee public school teachers and aides are so personal that these employees are entitled to a have a court determine if the records can be released, a sharply divided Wisconsin Supreme Court in Madison ruled in early July.

The court rejected an appeal by The Milwaukee Journal Sentinel for criminal history records ordered collected by the Milwaukee school board after the newspaper reported on abuses of children by Milwaukee school employees.

Initially the school system provided reporters Steve Schultze and Mary Zahn criminal backgrounds of 548 employees. But when it was asked for background checks on 18 employees who were released, the teachers’ union sued to enjoin the school administration from releasing the records.

The high court said individual employees can ask that a court, rather than a records custodian, balance privacy and public interests in records held in agency personnel files to determine if the records will be disclosed under the state’s open records law.

In a concurring opinion, the four justices who signed the majority opinion said requests for information in personnel files raise privacy concerns of “constitutional dimension” because “facts about an individual’s life” might be revealed without that person’s permission.

The decision did not turn on an exemption within the Wisconsin open records law, but rather upon the court’s stated impression that the legislature, in passing four privacy statutes requiring confidentiality in other, specific situations, had expressed a newfound support for individual privacy.

In a strongly worded dissent, two of three dissenting justices said the decision would cripple the state’s open records law, in which the legislature had already balanced public and private interests.

The Circuit Court in Milwaukee in January 1997 said that the schools, not the court, should make decisions on records disclosure. But in May 1998, the Court of Appeals in Milwaukee reversed. Individuals have an “implicit” privacy right to have a court decide whether files concerning their “reputational” interests can be released. The newspaper intervened .

The Court of Appeals and the state Supreme Court in Madison cited a previous ruling by the Wisconsin Supreme Court that the subject of an investigatory file has a right to have a court, not the district attorney who gathered the file, decide if it will be disclosed.

The newspaper said that personnel records differ from investigatory files particularly where, as here, requested records are not even confidential at their source. (Milwaukee Teachers’ Education Ass’n v. Milwaukee Bd. of School Directors; Media Counsel: David Lucey, Milwaukee)