Willis W. Hagen, II, Plaintiff-Appellant,
Board of Regents of the University of Wisconsin System and University of Wisconsin-Oshkosh, Defendants-Respondents, Alexander Nemec, Intervenor-Respondent.
from an order of the circuit court for Winnebago County, Cir.
Ct. No. 2017CV389 DANIEL J. BISSETT, Judge. Affirmed.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J.
In this Public Records Law case, Willis W. Hagen, II, brought
an action under WIS. STAT. § 19.356
(2015-16) to enjoin the Board of Regents of the
University of Wisconsin System and the University of
Wisconsin-Oshkosh (the University) from disclosing to
Alexander Nemec records relating to an investigation of a
complaint against Hagen, a professor at the University. The
circuit court denied the request for injunctive relief,
concluding that no statutory or common-law exception barred
the records' release and that the presumption of public
access, see WIS. STAT. § 19.31, outweighed any public
interest in nondisclosure. We affirm the order.
In March 2017, Nemec, a reporter, made a request for records
relating to "closed complaints" against Hagen.
After locating and partially redacting forty-four pages, the
University gave statutory notice to Hagen in compliance with
Wis.Stat. § 19.356(2). A sealed affidavit provides
details about what was and was not redacted and why. The
records custodian concluded that no statutory exception
shielded the partially redacted records-as the internal
investigation was completed-and that the public's
interest in access to the records outweighed any interest in
Hagen commenced this action under Wis.Stat. § 19.356(4)
to enjoin the University from disclosing the report. Nemec
intervened as a matter of right under § 19.356(4).
After an in-camera inspection of the records and the
parties' submissions, the court concluded that Hagen had
identified no statutory or common-law exception to
disclosure. The court next engaged in the balancing test and,
after a thorough and well-considered analysis, concluded that
the strong public interest in disclosure applicable in a case
involving investigation of a complaint about a professor at a
public institution outweighed any concerns Hagen provided
regarding damage to his reputation. The court determined that
some of the University's redactions were overbroad, and
some of them were withdrawn. The court denied Hagen's
request for an injunction. This appeal
Absent a clear statutory exception, a limitation under the
common law, or an overriding public interest in keeping a
public record confidential, Hathaway v. Joint Sch.
Dist., 116 Wis.2d 388, 397, 342 N.W.2d 682 (1984),
Wisconsin's Public Records Law "shall be construed
in every instance with a presumption of complete public
access, " Wis.Stat. § 19.31. As the denial of
public access generally is contrary to the public interest,
access may be denied "only in an exceptional case."
Id. "[A]n 'exceptional case' …
exists when the facts are such that the public policy
interests favoring nondisclosure outweigh the public policy
interests favoring disclosure, notwithstanding the
strong presumption favoring disclosure." Hempel v.
City of Baraboo, 2005 WI 120, ¶63, 284 Wis.2d 162,
699 N.W.2d 551');">699 N.W.2d 551. The interpretation and application of the
Public Records Law to undisputed facts present questions of
law that we review de novo but benefiting from the circuit
court's analysis. Kailin v. Rainwater, 226
Wis.2d 134, 147, 593 N.W.2d 865 (Ct. App. 1999). The party
seeking nondisclosure has the burden to show that
"public interests favoring secrecy outweigh those
favoring disclosure." John K. MacIver Inst. for Pub.
Policy, Inc. v. Erpenbach, 2014 WI.App. 49, ¶14,
354 Wis.2d 61, 848 N.W.2d 862 (citation omitted).
Hagen complains that the circuit court erred when it
concluded that no statutory exceptions applied. He contends
that Wis.Stat. § 19.36(10)(d) should exempt the records,
as the records relate to "staff management
planning."This court has made clear, however, that,
once the investigation into possible misconduct by a public
employee is completed, para. (10)(d) does not exempt records
of the investigation from disclosure. Kroeplin v.
DNR, 2006 WI.App. 227, ¶32, 297 Wis.2d 254, 725
N.W.2d 286 (explaining that § 19.36(10)(b) is the only
exception to the Public Records Law that applies to
allegations of employee misconduct and only applies to
current investigations). The records at issue here
include notices of a complaint and related investigation; a
summary of a meeting about that investigation; the resulting
report on the complaint, investigation, and findings; the
complaint itself; responses by Hagen to the complaint and
findings; and recommendations and sanctions stemming from the
investigation. There are also emails regarding the complaint
and investigation. The circuit court correctly determined
that no statutory exception exists for records of closed
We turn to the balancing test. It entails assessing whether
allowing inspection would result in harm to the public
interest that outweighs the legislative policy recognizing
the strong public interest in allowing inspection.
Hathaway, 116 Wis.2d at 402-03.
Wisconsin courts have recognized the "great importance
of disclosing disciplinary records of public employees and
officials where the conduct involves violations of the law or
significant work rules, " Kroeplin, 297 Wis.2d
254, ¶28, and the public's "particularly strong
interest in being informed about public officials who have
been 'derelict in [their] duty, '" even at the
cost of possible reputational harm, Wisconsin Newspress,
Inc. v. School Dist. of Sheboygan Falls, 199 Wis.2d 768,
786, 546 N.W.2d 143 (1996) (alteration in original; citation
Moreover, the public has a strong interest in monitoring the
disciplinary operations of a public institution.
Linzmeyer v. Forcey, 2002 WI 84, ¶28, 254
Wis.2d 306, 646 N.W.2d 811; Zellner v. Cedarburg Sch.
Dist., 2007 WI 53, ¶53, 300 Wis.2d 290, 731 N.W.2d
240 (noting the public "has an interest in knowing how
the government handles the disciplinary actions of public
employees"). Hagen's stated concern that release
would have a chilling effect on attracting qualified
candidates for future employment is "remote-too remote
to overcome the policy favoring disclosure of public
records." State ex rel. Journal/Sentinel, Inc. v.
Arreola, 207 Wis.2d 496, 517, 558 N.W.2d 670 (Ct. App.
1996). Releasing records relating to misconduct
investigations is unlikely to discourage recruitment of good
teachers. Indeed, it is as likely that current or prospective