Wisconsin Municipal Law Memo – May 16, 2014
Wisconsin Courts Issue Public Records Decision:
The Wisconsin Court of Appeals recently issued a decision in an interesting public records case, Ardell v. Milwaukee Board of School Directors. Ardell made a public records request to MBSD seeking disclosure of records relating to an MBSD employee. Applying the public records balancing test, MBSD initially decided to disclose the records with some redactions. However, MBSD reconsidered its decision and ultimately denied Ardell’s request. In support of its denial, MBSD cited a domestic abuse injunction issued against Ardell precluding him from contacting the MBSD employee, as well as criminal proceedings in which Ardell plead guilty to two counts of violating the domestic abuse injunction. Ardell sought a writ of mandamus in the circuit court. The circuit court held that MBSD properly conducted the balancing test and that, in this case, the public policy reasons against nondisclosure outweighed those in favor. Ardell appealed.
The circuit court affirmed. The court first discussed the purpose of the public records law, as well as the presumption in favor of disclosure. The court then discussed the safety issues present in this particular case, reviewing the injunction proceedings against Ardell, as well Ardell’s convictions for violating the injunction. Relying upon this information, the court found it was clear that Ardell’s purpose in requesting records from the MBSD was not legitimate, but instead, intended to harass and intimidate the employee. Further, the court explained that because of his violent history, Ardell has “no clear, specific legal right to the documents he requests, nor does MBSD have a positive and plain duty to reveal those documents.” The court then specifically addressed each of Ardell’s arguments. First, the court agreed that Levin v. Board of Regents for the University of Wisconsin System stands for the proposition that generally the identity and purpose of the requester are not part of the balancing test. However, the evaluation as to whether there is a safety concern outweighing the presumption of disclosure is fact-intensive, and in this case, Ardell’s prior actions align him more closely with the class of individuals statutorily denied access to public records, such as committed and incarcerated individuals. The court next rejected Ardell’s argument that the court was required to conduct an in camera review of the documents. In camera review is not mandatory, and in this case, Ardell’s violent history demonstrates his intent to harm the employee such that in camera review was unnecessary. Finally, the court explained that, contrary to Ardell’s argument, the language of the public records statute does not require the subject of a request to file for a restraining order in order to prevent disclosure. In this case, for example, the subject communicated privately with MSBD following notification of the request from Ardell, and MSBD ultimately reconsidered its decision to disclose.
While the balancing test always requires a case-by-case analysis, this extreme case does provide some instruction when considering safety in conjunction with public records requests.
