Subsection (2)(a)1. refers to records that are the result of an investigation into either a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation or policy of the employee’s employer. Although records of a disciplinary matter involving an employee would ordinarily be understood as records created by the employee’s employer, the statute can be read as requiring the notice when there has been an investigation of possible employment-related violation by the employee and the investigation is conducted by some entity other than the employee’s employer. To the extent subsection (2)(a)1. can be read as including records relating to an employee that are the result of an investigation by someone other than the employee’s employer, the statute is ambiguous. See Kalal, 271 Wis. 2d 633, ¶ 47 (a statute is ambiguous if its language reasonably gives rise to different meanings). As noted earlier, section 19.356 was created by 2003 Wisconsin Act 47. According to the Committee’s prefatory note, the Committee was directed to review the Wisconsin Supreme Court decisions in Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996) and Teachers’ Ed. Ass’n v. Bd. of Sch. Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999). In Woznicki, the Wisconsin Supreme Court held that a school district employee had the right to judicial review of a district attorney’s decision to release records concerning that employee and, consequently, the employee was entitled to notice of the district attorney’s decision to release the records. In Klein v. Wisconsin Resource Center, 218 Wis. 2d 487, 582 N.W.2d 44 (Ct. App. 1998), the court of appeals expanded the holding in Woznicki, holding that when access is sought under the public records law to any records which pertain to an individual, the individual has the right to notification if the record custodian agrees to release the information and the right to seek a circuit court review of that decision. Klein, 218 Wis. 2d at 494. In the Milwaukee Teachers case, the Supreme Court formally extended to any public employee the right to notice about, and judicial review of, a custodian’s decision to release personnel information implicating the privacy or reputational interest of the individual public employee. The Committee’s prefatory note comments:
Further, the logical extension of these opinions is that the right to notice and the right to judicial review may extend to any record subject, regardless of whether the record subject is a public employee.
This bill partially codifies Woznicki and Milwaukee Teachers’. In general, the bill applies the rights afforded by Woznicki and Milwaukee Teachers’ only to a defined set of records pertaining to employees residing in Wisconsin. As an overall construct, records relating to employees under the bill can be placed in the following three categories:
. . . .
2. Employee-related records that may be released under the balancing test only after a notice of impending release and the right of judicial review have been provided to the employee record subject.
The Committee’s Report to the Legislature on the bill drafts is even more specific: it describes the bills as requiring notice when an authority decides to release a record containing information about:
A public sector or private sector employee disciplinary matter, following an investigation.
A private sector employee, unless the private sector employee authorizes the public body to provide access to that information.
Any person, when the information is obtained through a subpoena or search.
Wisconsin Legislative Council Report to the Legislature, Special Committee on Review of the Open Records Law, RL 2003-01 (Mar. 25, 2003), at 3.
In its first substantive meeting, the Committee discussed an initial “draft” bill that was really a compilation of three different bills that had been considered but not passed during the previous Legislature. At that meeting, the Committee selected a version of subsection (2) that contained an exception to the notice provision of subsection (2)(a) that provided:
(d) Paragraph (a) does not apply to an investigation by an authority who or which is charged with the responsibility to enforce a law, ordinance, rule, or regulation that is applicable to individuals other than officers or employees of the authority or persons under contract with the authority unless the investigation involves an officer or employee of the authority or a person under contract with the authority.
WLC: 0276/1, sec. 3, at 6; Committee Minutes (Sept. 23, 2002), at 2.
At the following Committee meeting, November 18, 2002, the Committee deleted the exception. One could conclude, therefore, that it was the Committee’s intention that records of that kind of investigation, investigations by entities other than the employee’s employer, be subject to the notice requirement. But the Committee minutes never explain or comment upon the deletion. If the Committee made a public policy choice, it did not explain that choice. Similarly, if the Committee thought the provision was unnecessary, it did not explain that reasoning. What was not included in the final legislation is of little assistance in interpreting the final legislation when the deletions are made without explanation or comment.
Interpreting subsection (2)(a)1. as requiring notification not only when an authority proposes to release employment-related records prepared by an employee’s employer, but also records prepared by other entities, would be contrary to the Committee’s stated goal of limiting the scope of required notification under Woznicki and its progeny. That interpretation would also lead to anomalous results: for example, if a law enforcement agency conducted an investigation into whether a private sector employee stole from his employer, the employee would be entitled to notice before the law enforcement agency released the records, but the law enforcement agency could release records of an investigation into whether the same individual committed a sexual assault without providing notice if the sexual assault was not employment related. Furthermore, that interpretation of the statute would mean that the law enforcement agency could not release records of an investigation for any job-related infraction alleged to have been committed by any public employee without first providing notice to the employee and allowing the employee to challenge the release of the records. Interpreting this subsection as requiring notification before releasing records of law enforcement investigation of employment-related violations would also mean that a municipal employee who stole from his employer would be entitled to notification and could challenge the release of the police records of that investigation but, if the same individual stole from an organization in which he was a volunteer, the police investigative records could be released without notification. An arrest record of a private sector employee arrested for an offense involving his or her employment could not be released without notifying the individual. That result is directly contrary to the holding of Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 279 N.W.2d 179 (1979), in which the Wisconsin Supreme Court held that arrest records are available to the press and public “at any time when the custodian’s office is open for business and the ‘arrest list’ or the police ‘blotter’ is not actually being used for the making of entries therein.” Breier, 89 Wis. 2d at 440. I am unwilling to conclude that the Committee and the Legislature would so radically change not only Wisconsin’s public records statutes, but also Wisconsin’s common law involving police records, without any report of the discussion or reasons for the change. Subsection (2)(a)1. therefore must be interpreted as requiring notification when an authority proposes to release records in its possession that are the result of an investigation by an employer into a disciplinary or other employment matter involving an employee. This interpretation of subsection (2)(a)1. is consistent with section 19.36(10)(b) which prohibits an authority from releasing “[i]nformation relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation.” That statute clearly focuses on records connected with employment. Both sections 19.356(2)(a)1. and 19.36(10) were created by 2003 Wisconsin Act 47. Reading the statutes together leads to the conclusion that the required notice to a record subject under section 19.356(2)(a)1. is restricted to an authority proposing to release records that are the result of an investigation into disciplinary matters or possible misconduct connected with employment created by the employer. As noted earlier, the notification need only be provided to the record subject to whom the record pertains. That an individual merely is named in the record is not sufficient to trigger the notification requirement. Section 19.356(9)(a) requires an authority to provide notice “to a record subject who is an officer or employee of the authority holding a local public office or a state public office[.]” Under subsection (9)(a), an authority need provide the requisite notice only to public officers who are employed by the authority releasing the records. Subsection (9)(a), however, does not restrict the duty to notify to the class of records listed in subsection (2)(a); it requires notice when any records are going to be released. To summarize, if you propose to release a record that contains information pertaining to a private sector employee and the record was prepared by the employee’s employer, you must provide the employee notice of your intent to release the record and may not release the record unless the employee authorizes the release. If any of the records you propose to release are records obtained by DCI through a subpoena or search warrant, you must provide the requisite notice to the person to whom the record pertains. Finally, if any of the records you propose to release contain information relating to an investigation by an employer into a disciplinary matter or possible employment-related violation by an employee of that employer, you must provide the requisite notice to the record subject to whom the record pertains.
This analysis applies only to notice provisions of the public records law, as amended, and does not alleviate any obligation to conduct a balancing test or otherwise comply with additional provisions of the public records law.
Very truly yours,
Peggy A. Lautenschlager
Attorney General
PAL:AL:lkw
CAPTION: Section 19.356(1) and (2) of the Wisconsin Statutes discussed.
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