Wisconsin Legislature: Confidentiality; Public Records; Words And Phrases;

73 Op. Att'y Gen. 26, 31 (1984)

As for the fear of using the information for future discrimination, I can only point out that our supreme court was not receptive to such a generalized assertion in

Newspapers, Inc. v. Breier

, 89 Wis. 2d 417, 421, 432, 279 N.W.2d 179 (1979). You must evaluate this fear based on your expertise but it is my opinion that the mere fear that some information

might

be used in a discriminatory way at some time is not sufficient to generally decline access to all the information all the time.

73 Op. Att'y Gen. 26, 32 (1984)

Your third question has two parts:

73 Op. Att'y Gen. 26, 32 (1984)

3. a) What effect does the preexisting pledge of confidentiality given by the University to its employes, limiting use to "statistical and reporting purposes only," have on the limitations, if any, described in your answers to questions #1 and #2, and further on my subsequent re-release of such information?....

73 Op. Att'y Gen. 26, 32 (1984)

b) Does the language used on the current state service application form (Rev. 4/83), quoted above, also constitute a pledge of confidentiality? This question arises because, if the information is made available to the public at large, it would not be possible to guarantee compliance with the statement that the information will be used for affirmative action and will not be used for discrimination.

73 Op. Att'y Gen. 26, 32 (1984)

Along with your questions you refer to a September 13, 1977, unpublished attorney general's opinion. It involved a request to the University to provide the names and addresses of all nonwhite University employes. The University resisted on the ground that ethnic heritage information had been solicited from and disclosed by employe candidates based on the understanding that it would be kept confidential and used only for statistical and reporting purposes in connection with the affirmative action program. I will quote from the opinion at length since it was not published.

73 Op. Att'y Gen. 26, 32 (1984)

[An earlier]... opinion of the Attorney General goes on to list the three criteria which are considered in determining whether a particular pledge of confidentiality comes within the exception to the public right of full access. First, there must be a clear pledge of confidentiality. Second, the pledge should be made in order to obtain the information. Third, the pledge must be necessary to obtain the information. If the pledge fulfills these criteria, then the custodian, before he can withhold records, must make the further determination that the harm to the public interest that would result from permitting inspection outweighs the public interest in allowing full access to the records.

73 Op. Att'y Gen. 26, 32-33 (1984)

From the information made available, it appears that the University has made a clear pledge of confidentiality to the minority persons, that the pledge was made in order to obtain the information, and that the pledge was necessary to obtain the information. The fact that only 40 of 1,000 minority employes on the Madison campus were agreeable to be identified by name and address seems to confirm the assertion that the University would not be able to perform its statistical reporting responsibilities to the federal government without the pledge of confidentiality.

73 Op. Att'y Gen. 26, 33 (1984)

The remaining question, then, is whether the University's interest in maintaining confidentiality outweighs Senator Swan's apparent interest in making the names available to his committee and the public. This brings us to your responsibility, as the custodian of the records, to weigh the relative public interests involved, that is, the interests of the University in maintaining the confidentiality of the names and addresses as against Senator Swan's responsibility as chairman of the Senate Committee on Governmental and Veterans Affairs. As the record presently stands, we know two things in regard to the needs of Senator Swan's committee. First, that they intend to do a study on the state's affirmative action program and desire the names and addresses of all minorities employed by the University System. Secondly, we know that Senator Swan's committee has denied his request that a subpoena be issued to the University for the records containing the names and addresses in question. In view of this fact and in the absence of any further specifics as to why the names and addresses of the minority employes are needed for the study, as opposed to the statistical information offered, it is my opinion that a court would support the determination of the University that the public interest in nondisclosure outweighs any public interest in disclosure.

73 Op. Att'y Gen. 26, 33 (1984)

Accordingly, I am of the opinion that under the present state of the record, you are not under an obligation to disclose to Senator Swan the ethnic heritage of specific employes by name and address where this information was received from the employe under a pledge of confidentiality.

73 Op. Att'y Gen. 26, 33-34 (1984)

In response to your questions, I see no reason to change this earlier opinion. If the confidential information is provided to you by the University it is the University's obligation to preserve the confidentiality by binding you to a similar pledge which you must honor. As stated in 57 Op. Att'y Gen. 187, 191 (1968): "The law seems clear that information of a confidential nature gained by one administrative branch of the government from another may be used in preparation for proper internal matters, but should not be disclosed to the public."

73 Op. Att'y Gen. 26, 34 (1984)

In the second part of your third question you ask whether the following language in the state employment application form constitutes a legally cognizable pledge of confidentiality: "Date of Birth, Sex, Ethnic and Handicapped Status Information is for affirmative action purposes. It will not be used to discriminate against any applicant."

73 Op. Att'y Gen. 26, 34 (1984)

In contrast, the language used by the University and the subject of the September 13, 1977, unpublished opinion, was as follows: "Heritage Code information requested only if and after a person is employed and will be used only for statistical and reporting purposes, including required reports to the federal government."

73 Op. Att'y Gen. 26, 34 (1984)

While I advised that the University language is a sufficiently clear pledge to satisfy the criteria set forth in earlier opinions, I cannot say the same about the language in the state application form. There is no express statement that the information will be used solely for affirmative action purposes thus necessarily implying that it will be otherwise confidential. Indeed, I doubt that a prospective employer could honor such a pledge with respect to "date of birth and sex" information.

73 Op. Att'y Gen. 26, 34 (1984)

Your fourth question is:

73 Op. Att'y Gen. 26, 34 (1984)

4. What, if any limitations on access to this information apply to:

73 Op. Att'y Gen. 26, 34 (1984)

a.) Myself, as Secretary of DER, when requesting said information from the agencies in regard to their employes;

73 Op. Att'y Gen. 26, 34 (1984)

b.) Other state agencies when requesting said information from DER which is not specific to employes of their own agency; or

73 Op. Att'y Gen. 26, 34 (1984)

c.) A representative of the Governor, when requesting such information on state employees from DER?

73 Op. Att'y Gen. 26, 34 (1984)

Given your responsibilities regarding development and evaluation of affirmative action programs, it is my opinion you have access to whatever information you need to carry out those responsibilities. Sec. 230.04(9) and (10), Stats.