Argument: December 5, 2017
from an order of the Circuit Court for Dane County L.C. No.
the defendant-appellant, there were briefs (in the court of
appeals) filed by Steven C. Kilpatrick, assistant attorney
general, and Brad D. Schimel, attorney general. There was an
oral argument by Steven C. Kilpatrick.
the plaintiff-respondent, there was a brief (in the court of
appeals) filed by Susan M. Crawford and Pines Bach LLP,
Madison. There was an oral argument by Susan M. Crawford.
amicus curiae brief was filed on behalf of the Wisconsin
Freedom of Information Council, the Wisconsin Newspaper
Association, and the Wisconsin Broadcasters Association by
Dustin B. Brown, James A. Friedman, and Godfrey & Kahn,
PATIENCE DRAKE ROGGENSACK, C.J.
This case comes before us on a bypass petition filed by the
records custodian and chairman of the Wisconsin Employment
Relations Commission ("WERC"), James R. Scott.
Scott appeals a decision of the circuit court  that granted summary
judgment to Madison Teachers, Inc. ("MTI") on its
claim that the public records law was violated.  The circuit court
also awarded MTI statutory damages, attorneys fees and costs.
MTI had made repeated requests, at various times during the
2015 certification elections, for names of Madison
Metropolitan School District (the "School
District") employees who had voted as of those dates.
WERC denied MTI's requests based on Scott's
determination that while this election was ongoing, the
public interest that elections remain free from voter
intimidation and coercion outweighed the public interest in
favor of openness of public records.
One issue is presented in this appeal: whether the public
interest that elections remain free from voter intimidation
and coercion in this certification election is sufficient to
outweigh the public interest in favor of openness of public
records. Because we conclude that Scott lawfully performed
the balancing test in concluding that the public interest in
elections free from voter intimidation and coercion outweighs
the public interest in favor of openness of public records,
we reverse the circuit court. Accordingly, no attorneys fees
are due MTI under the provisions of Wis.Stat. § 19.37
From November 4 through November 24, 2015, WERC conducted the
annual certification election for collective bargaining
representatives of the School District's employees
references to Wisconsin statutes are to the 2015-16 version
unless otherwise noted. pursuant to Wis.Stat. §
111.70(4)(d)3.b. WERC contracted with the American
Arbitration Association (the "Association") to
provide technological services necessary to conduct the
election. With the Association's support,
voting occurred via telephone and internet for 20 days, and
the Association electronically maintained data for votes that
were cast. According to the contract between WERC and the
Association, the Association was required to email election
results to WERC no later than one business day after the
Notably, under Wis.Stat. § 111. 70(4) (d)3.b., in order
to be certified as the elected representative of the
bargaining unit, a labor organization must receive the votes
of at least 51 percent of the total number of employees in
the bargaining unit. Therefore, a non-vote in the election is
for all intents and purposes a "no" vote. Pursuant
to § 111.70(1) (e), certification elections are
conducted by secret ballot.
One week prior to the start of the certification election,
MTI wrote to Scott stating that it intended to submit
requests pursuant to Wis.Stat. § 19.35(1) for records of
the names of the School District's employees who had
voted at specific points during the election. MTI wrote that
it "wish[ed] to assure you that MTI will not engage in
voter coercion or any other illegal election practices during
the upcoming election. MTI is fully committed to exercising
its First Amendment and statutory rights within the
On November 10, 2015, MTI submitted the first of its
requests, seeking names of employees, by bargaining unit, who
had voted as of that date. MTI requested that the records be
delivered "as soon as possible, but not later than 5:00
p.m., November 16." On November 16, 2015, Scott advised
MTI in writing that its request was denied for three reasons:
first, because WERC utilized the Association, a third-party
vendor to collect votes, the Commission did not possess the
requested documents; second, because the annual certification
election is conducted by secret ballot, disclosure of the
names of employees who had voted would violate the secrecy of
the ballot; and third, because the common law balancing test
weighed in favor of "maintaining the secrecy of the
ballot and of avoiding the potential for voter coercion while
balloting is ongoing . . . ." Scott was aware of a
complaint submitted to WERC by the Racine Unified School
District, alleging that voters had been coerced and harassed
into voting during the 2014 annual certification
MTI submitted a second request on November 17, 2015, for
names of employees, by bargaining unit, who had voted as of
that date. MTI requested that Scott respond "as soon as
possible, but not later than 5:00 p.m., November 20."
This request was also denied in writing on November 30, 2015.
The election ended at noon on November 24, 2015. At 3:26 p.m.
on that day, MTI submitted a third request to WERC,
requesting names of all employees who had voted in the
certification election. WERC provided those names, by
bargaining unit, at 12:37 p.m. the following day, November
25. Scott concluded that the public interest in maintaining
openness of public records was satisfied by disclosing the
requested lists immediately after the elections were over.
On November 30, 2015, MTI filed a complaint pursuant to
Wis.Stat. § 19.37(1)(a),  seeking an order for
mandamus, punitive damages, attorneys fees and costs, based
on Scott's refusal to release voting records in response
to MTI's November 10 and November 17 requests. On
December 1, 2015, MTI filed an ex parte motion, citing
Wis.Stat. § 801.02(5), for an order shortening the time
for filing an answer or other responsive pleadings from 45
days to 20 days. The circuit court granted the ex parte
motion on December 3. On December 4, 2015, MTI served the
complaint, its ex parte motion and the resulting order on
On December 11, 2015, Scott filed a motion and supporting
brief to reconsider and vacate the court's December 3
order. A hearing was conducted on December 15, at which the
court granted Scott 45 days to answer. Scott timely answered.
On December 22, 2015, WERC's legal counsel, Peter Davis,
emailed the Association, stating: "Whenever convenient
can you tell me if it [is] still possible to identify who had
voted as of noon Nov 10 and noon Nov 17 in the various
Madison Schools/Madison Teachers units. If it is possible,
can you send me that info unit by unit[?]" The
Association provided those records to WERC, which WERC
provided to MTI during discovery.
MTI and Scott filed cross-motions for summary judgment. Scott
argued, among other things, that the public interest in
non-disclosure of the names of those who had voted when the
election was ongoing outweighed the public interest in
disclosure at that time and therefore, MTI did not have a
legal right to the records it sought. Meanwhile, MTI argued
that Scott failed to overcome the strong presumption in favor
of openness of public records. Upon completion of briefing,
the court granted MTI's motion and denied Scott's.
At the hearing on summary judgment, MTI also sought punitive
damages, costs, and attorneys fees. A second hearing was held
on these issues, and the court modified its previous order
denying punitive damages and granting MTI $100.00 statutory
damages, $41, 462.50 attorney fees and $301.35 costs.
Scott appealed and, following initial briefing, Scott
petitioned for bypass, which we granted. We now reverse the
Standard of Review
We review a record custodian's decision to deny a public
records request independently. It is the duty of the records
custodian to specify the reasons for not disclosing a public
record, and we decide whether those reasons outweigh the
public interest in disclosure as a matter of law. See
Democratic Party of Wis, v. DOJ, 2016 WI 100, ¶9,
372 Wis.2d 460, 888 N.W.2d 584');">888 N.W.2d 584. When a records custodian
employs a balancing test, it is the custodian's burden to
show that the public interest favoring denial of the
requested record outweighs the public interest favoring
disclosure. Id. (citing John K. Maclver Inst,
for Pub. Policy, Inc. v. Erpenbach, 2014 WI.App. 49,
¶14, 354 Wis.2d 61, 848 N.W.2d 862).
Public Records Law
Wisconsin's public records law is set forth in Wis.Stat.
§ 19.31, et seq. Wisconsin's public records law
requires that, absent a statutory, common law or overriding
public interest in denying access, the public has the right
"to inspect certain documents within the possession of a
state entity." Voces De La Frontera v. Clarke,
2017 WI 16, ¶17, 373 Wis.2d 348, 891 N.W.2d 803');">891 N.W.2d 803. The
public records law "serves one of the basic tenets of
our democratic system by providing an opportunity for public
oversight of the workings of government." Nichols v.
Bennett, 199 Wis.2d 268, 273, 544 N.W.2d 428 (1996)
(citing Newspapers, Inc. v. Breier, 89 Wis.2d 417,
433-34, 279 N.W.2d 179 (1979)). When evaluating a public
records request, we keep in mind that Wisconsin has a
"presumption of open access to public records."
Osborn v. Bd. of Regents of Univ. of Wis. Sys., 2002
WI 83, ¶13, 254 Wis.2d 266, 647 N.W.2d 158 (citing
Hathaway v. Green Bay Sch. Dist., 116 Wis.2d 388,
397, 342 N.W.2d 682 (1984)); see also Wis.Stat.
§ 19.31 (providing that "it is . . . the public
policy of this state that all persons are entitled to the
greatest possible information regarding the affairs of
government and the official acts of those officers and
employees who represent them."); cf. Leann
Holcomb & James Isaac, Comment, Wisconsin's
Public Records Law: Preserving the Presumption of
Complete Public Access in the Age of Electronic
Records, 2008 Wis. L. Rev. 3, 515.
The public's right to access public records is very
strong, but it is not unrestricted. Voces De La
Frontera, 373 Wis.2d 348, ¶18. "The strong
presumption of public access may give way to statutory or
specified common law exceptions, or if there is an overriding
public interest in keeping the public record
confidential." Kroeplin v. DNR, 2006 WI.App.
227, ¶13, 297 Wis.2d 254, 725 N.W.2d 286 (citation
omitted); see also Hathaway, 116 Wis.2d at 397
("[T]he general presumption of our law is that public
records shall be open to the public unless there is a clear
statutory exception, unless there exists a limitation under
the common law, or unless there is an overriding public
interest in keeping the public record confidential.")
. In other words, "[b]ecause the
denial of public access is generally contrary to the public
interest, " access may be denied only in limited
circumstances. Kroeplin, 297 Wis.2d 254, ¶12
(citing Kailin v. Rainwater, 226 Wis.2d 134, 142,
593 N.W.2d 865 (Ct. App. 1999)).
In determining whether there is an overriding public interest
in keeping a requested record confidential when there is no
statutory exception to provision of the record, the record
custodian balances competing public interests that bear on
the release of the requested record. Milwaukee Journal
Sentinel v. DOA, 2009 WI 79, ¶¶55-56, 319
Wis.2d 439, 768 N.W.2d 700');">768 N.W.2d 700. That is, the custodian balances
the public interest in nondisclosure against the public
interest in disclosure. Id., ¶55. The balance
is accomplished through a case-by-case analysis. Because the
interests asserted in denying disclosure are discrete to each
case, "blanket exceptions from release" generally
are not forthcoming. Id., ¶56. Stated
otherwise, "the custodian must determine whether the
surrounding factual circumstances create an 'exceptional
case' not governed by the strong presumption of
openness." Hempel v. City of Baraboo, 2005 WI
120, ¶63, 284 Wis.2d 162, 699 N.W.2d 551.
The public interest balancing test considers "whether
disclosure would cause public harm to the degree that the
presumption of openness [of public records] is
overcome." Democratic Party of Wis., 372 Wis.2d
460, ¶11; see also Osborn, 254 Wis.2d 266,
Secret Ballot Elections
As a general matter, voting may occur by voice acclamation,
the raising of hands in a meeting or by secret ballot,
depending on the statutory directive or lack thereof. In
regard to the matter before us, Wis.Stat. § 111.70(1)
(e) requires that certification elections be conducted by
All 50 states have employed the secret ballot method of
voting to limit voter intimidation during elections.
Burson v. Freeman, 504 U.S. 191, 206 (1992) . As
explained in Burson, the history of election
regulation in the United States shows that voter intimidation
and coercion are long-standing evils that election
regulations sought to prevent. Id.
The right to vote in certification elections is a statutory
right; yet, Burson is instructive in the matter
before us because of its exposition of the policies that
underlie the use of secret ballots. In Burson, a
political party worker sought to enjoin enforcement of
Tennessee statutes that prohibited solicitation of votes and
display of campaign materials within 100 feet of entrances to
polling places on election day. Id. at 193-94. The
party worker claimed that the statutory regulation violated
her right to communicate with voters, in contravention of her
First Amendment rights. Id. at 194-95. Tennessee
contended that its statutes were narrowly drawn to serve
compelling state interests of preventing voter harassment and
intimidation. Id. Further, Tennessee contended that
the campaign-free zone "protects the right to vote in an
election conducted with integrity and reliability."
Id. at 199.
In concluding that the Tennessee statute was constitutional,
even though it was not a content-neutral regulation of
speech, the Supreme Court reviewed the history of the secret
ballot method of voting in the United States and how it has
had an immediate and positive effect in limiting intimidation
and coercion of voters. Id. at 202-06. The Court
concluded by explaining that the contest over Tennessee's
election regulation involved "the exercise of free
speech rights [in] conflict  with another fundamental
right, the right to cast a ballot in an election free from
the taint of intimidation and fraud." Id. at
211. On balance, the Court said that removing the opportunity
for intimidation of voters must prevail. Id.
2011 Wisconsin Act 10 made various changes to collective
bargaining for most public employees. Act 10 requires annual
certification elections, which are administered by WERC.
Wis.Stat. § 111.70(1) (c) and (e) . Prior to Act 10,
collective bargaining units for municipal employees also were
established through WERC's recognition of employee votes.
See Madison Teachers, Inc. v. Walker, 2014 WI 99,
¶19, 358 Wis.2d 1, 851 N.W.2d 337. Before Act 10,
members of a collective bargaining unit were allowed to
select a labor organization as their representative when a
majority of the votes cast were for a particular labor
organization, even when those votes were not equivalent to a
majority of the employees in the bargaining unit.