During the July 2023 WASDA Summer Legal Seminar, Kirk Strang facilitated his School Law Update presentation.
If you weren’t able to attend the Summer Legal Seminar, or would like to refresh your memory on the topics covered, you’ve come to the right place! We’ve been rolling out the information Kirk presented here on our blog, covering all six of the following topics …
- New Wisconsin Laws Enacted & Proposed
- New Federal Laws Proposed
- Developments in Federal Constitutional Law
- Open Meetings & Public Records Laws
- Wisconsin Decisions
- Artificial Intelligence (AI) in Schools
This installment of the series focuses on open meetings and public records law, including discussion on the following topics:
- Public records & court decisions
- Public records & DOJ guidance
- Open meetings & DOJ guidance
Let’s begin …
Public Records — Court Decisions
Gierl v. Mequon-Thiensville School District, 2023 WI App 5, 405 Wis.2d 757, 985 N.W.2d 116.
Relevant Facts:On June 24, 2020, the Mequon-Thiensville School District sent a Webinar invitation to District parents and staff members. The Webinar was titled, “The Talk: A Necessary Conversation on Privilege and Race with Our Children.”
Shortly thereafter, the petitioner, Mark Gierl, sent a public records request to the District. Gierl requested that the District disclose the list of email addresses to which the District sent the Webinar invitation. The District partly denied his request: it disclosed the email addresses of staff members but withheld the email addresses of District parents.
The District contended that the balancing test supported nondisclosure, arguing that disclosure would have a “chilling effect” on parents’ willingness to provide their email addresses to the District and would inhibit the District’s ability to communicate with parents.
In response, Gierl filed a petition for writ of mandamus pursuant to the public records law. The circuit court granted summary judgment to Gierl. The District appealed. The Wisconsin Court of Appeals affirmed.
Court Ruling:
The Wisconsin Court of Appeals determined that disclosure of the list of email addresses was warranted.
The Court noted that the legislature has made its intent clear. Wisconsin statutes provide that the Public Records Law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied” (emphasis added). Wis. Stat. § 19.31.
When a records custodian receives a public records request, the custodian must first determine whether the requested item constitutes a “record” and whether any statutory or common law exceptions to disclosure apply. If the item is a “record” and no exceptions apply, the custodian then conducts a balancing test to determine whether access may nonetheless be denied. The balancing test “weigh[s] the competing interests involved and determine[s] whether permitting inspection would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection.”
Upon the filing of a petition for writ of mandamus, the party seeking nondisclosure holds the burden to show that, “public interests favoring secrecy outweigh those favoring disclosure.”
In this case, the court determined that the District failed to meet this threshold. The District’s concern of a “chilling effect” on communications with parents was largely speculation. This speculation did not outweigh the presumption of complete openness set forth by the legislature.
The Wisconsin Court of Appeals affirmed the circuit court’s order directing the District to disclose the records.
Wisconsin State Journal v. Blazel, 2023 WI App 18, 407 Wis.2d 472, 991 N.W.2d 450.
Relevant Facts:
In November of 2019, an employee of the Wisconsin State Assembly filed a complaint against Representative Staush Gruszynski, alleging that he sexually harassed her. The complaint was investigated by the Legislative Human Resources Office. The investigation substantiated the employee’s complaint.
In December of 2019, multiple newspapers submitted public records requests, including the Wisconsin State Journal, Jonathan Anderson, The Associated Press, The Capital Times, and Milwaukee Journal Sentinel. The Assembly denied the requests and, instead, released a brief summary of the complaint, the investigation, and the resulting remedial actions. The statement also provided that the Assembly had applied the “public records balancing test and determined that the public interest in treating employee internal complaints as confidentially as possible and respecting the privacy and dignity of the complainant/witnesses outweighed any public interest in disclosing” the requested records.
The newspapers filed a petition for writ of mandamus pursuant to the public records law.
After this action was filed, the Assembly employee gave an anonymous interview to one of the newspapers who made the records request. As a result, the Assembly released the requested records related to the employee’s complaint against Representative Staush Gruszynski. However, the Assembly redacted the names of the employee, witnesses, and a staffer and legislator. The Assembly also redacted protected health information.
In October of 2020, the newspapers filed an amended complaint, alleging that redacting the records was a violation of the public records law. The complaint also alleged that the Assembly had improperly delayed the release of the records.
The circuit court granted summary judgment to the newspapers. The Assembly appealed.
Court Ruling:
The Court of Appeals determined, in part, that five of the Assembly’s six redactions violated the public records law. These redactions included the names of a legislator and a staffer. The redaction of the employee and interviewed witnesses were not challenged.
The Assembly contended that its staff had an interest in confidentiality. In particular, the release of the legislator and staffer’s names could risk others discovering the complaining employee’s identity. The court disagreed.
The court determined that the Assembly’s concern was too speculative to outweigh the public interest in disclosing the unredacted records. Accordingly, these redactions violated the public records law.
The court also determined, however, that the Assembly’s redaction of protected health information was proper. It noted that the newspapers did not argue that the redaction information was not private health information. Instead, the newspapers argued that the information was already known and the information was a “material fact” closely related to Representative Gruszynski’s misconduct. The court found these arguments to be unpersuasive.
The court remanded the cause for further proceedings.
Weidner v. City of Racine, No. 2021AP329 (Wis. Ct. App. July 6, 2022) (unpublished).
Relevant Facts:
In August of 2017, the City of Racine held a closed session meeting of its executive committee. During the meeting, the city attorney presented a PowerPoint regarding allegations against Sandra Weidner and other members of the common council. Weidner was present at the closed session meeting and viewed the PowerPoint.
Weidner subsequently submitted a public records request for a copy of the PowerPoint. The City of Racine denied the request, stating that the PowerPoint was protected by attorney-client privilege and Weidner had the opportunity to view the PowerPoint during the closed session. Weidner filed a Petition for Writ of Mandamus. After the circuit court dismissed the case, Weidner appealed.
The Court of Appeals reversed.
Court Ruling:
On appeal, Weidner argued that the PowerPoint was not protected by attorney-client privilege. The court determined that, even if the PowerPoint was protected, the City had waived privilege by presenting the PowerPoint to Weidner and other council members at the meeting. The city attorney prepared the PowerPoint with the intention of presenting it to council members, including Weidner, in closed session. The City did not object to Weidner’s attendance at the meeting, and her attendance was not improper. As a result, the City waived privilege with respect to Weidner.
The City failed to show that providing Weidner with a copy of the PowerPoint would be different from her viewing the PowerPoint at the meeting. The Court noted that once privilege as to a document has been waived for a particular person, it cannot be reclaimed for a copy of the same document.
The Court of Appeals held that the City had waived attorney-client privilege with respect to Weidner, and it directed the circuit court to order the release of the PowerPoint.
Public Records — DOJ Guidance
Wisconsin Department of Justice Guidance on Personal Devices.
On March 30, 2022, the Wisconsin Department of Justice (DOJ) received an inquiry regarding an alderman’s use of his personal device to livestream common council meetings. The writer had been told that this practice was illegal.
DOJ responded by letter dated February 21, 2023. It noted that the public records law does not prohibit a government employee’s use of a personal cell phone to conduct official government business. However, the employee should be aware that doing so may create a “record” subject to disclosure under the public records law.
DOJ concluded that the alderman’s use of his personal device to livestream council meetings was not prohibited by statute.
Wisconsin Department of Justice Guidance on Online Record Posting.
On September 19, 2022, the Wisconsin Department of Justice (DOJ) received correspondence that read, “I am of the opinion that Police Departments releasing information on a limited basis, e.g. telling social media users to look at a different social media page for the full release, is against the Wisconsin Public Records Law Compliance Guide, and may be contrary to Wis. Stat. §§ 19.31–19.39.”
DOJ clarified that publishing a public record on a webpage is not a substitute for compliance with the public record law. If a public record is published online, an individual may still submit a public records request to inspect or obtain a copy of the record.
DOJ also noted, however, that publishing records on a webpage may satisfy some individuals who would request those records. In addition, “easily accessible online records can help increase government transparency.”
Open Meetings — DOJ Guidance
Wisconsin Department of Justice Guidance on Public Comment.
On September 9, 2021, the Wisconsin Department of Justice (DOJ) received an inquiry regarding the public comment period at open meetings. DOJ responded by letter dated December 14, 2022, and provided an overview of the rules governing public comment periods. Assistant Attorney General Jad Itani wrote:
A governmental body, when conducting a meeting, is free to discuss any aspect of any subject identified in the public notice of that meeting, as well as issues reasonably related to that subject, but may not address any topics that are not reasonably related to the information in the notice. Buswell, 2007 WI 71, ¶ 34.
While Wisconsin law requires that meetings of governmental bodies be open to the public so that citizens may attend and observe open session meetings, the law does not require a governmental body to allow members of the public to speak or actively participate in the body’s meetings. While the open meetings law does allow a governmental body to set aside a portion of a meeting for public comment, it does not require a body to do so. Wis. Stat. §§ 19.83(2), 19.84(2). There are some other state statutes that require governmental bodies to hold public hearings on specified matters.
Unless such a statute specifically applies, however, a governmental body is free to determine for itself whether and to what extent it will allow citizen participation at its meetings. For example, a body may choose to limit the time each citizen has to speak.
If a governmental body decides to set aside a portion of an open meeting as a public comment period, this must be included in the meeting notice. During such a period, the body may receive information from the public and may discuss any matter raised by the public. If a member of the public raises a subject that does not appear on the meeting notice, however, it is advisable to limit the discussion of that subject and to defer any extensive deliberation to a later meeting for which more specific notice can be given.
In addition, the body may not take formal action on a subject raised in the public comment period, unless that subject is also identified in the meeting notice.
PUBLIC COMMENT: WHAT RULES ARE OK?
A school board has the authority to prohibit certain behaviors or comments and to do so does not violate a speaker’s free speech rights.
- A true threat;
- Comments that are reasonably understood to constitute one or more complaints about an employee or group of employees, or an attack on one or more employees;
- Any personally identifiable references to a student;
- Comments that are primarily for the purpose of attacking an individual (this forum is for an exchange of ideas, not for exchanging slanderous remarks);
- Comments by school board members (can school board members lawfully participate in a period of public comment?); and
- Are there sanctions for violating the rules that have been adopted for public comment periods and on what standards should be applied (e.g., “egregious violations”)?
PUBLIC COMMENT RULES: RULES THAT APPEAR TO BE PERMISSIBLE
- Remain seated;
- No waving or hand gesturing;
- No vocal interference with speaker during their time to address the school board;
- No disruption or incitement to disrupt;
- No taunting, ridicule, or other deliberate demonstrative behavior directed at others or their views; and
- No conduct reasonably understood to be an attempt to influence or impair a speaker’s ability to deliver their comments.
Wisconsin Department of Justice Guidance on Meeting Minutes.
On April 27, 2022, the Wisconsin Department of Justice (DOJ) received an inquiry regarding the posting of meeting agendas. DOJ responded by letter dated February 6, 2023. The letter also addressed the posting of meeting minutes online.Assistant Attorney General Jad Itani noted that the open meetings law does not require that meeting minutes be posted online. However, DOJ encourages governmental bodies to do so, to further government transparency.
Wisconsin Department of Justice Guidance on Attendees’ Sign-Ins.
On February 25, 2022, the Wisconsin Department of Justice (DOJ) received correspondence that read, “Can an open government meeting require people to sign in before attending the meeting?[ ] Either by filling out a sign-in sheet or identifying themselves if they are online?”
DOJ responded by letter dated February 7, 2023. DOJ concluded that the open meetings law does not require attendees to sign in or identify themselves if they are online. This does not mean, however, that a governmental body is precluded from requiring attendees to do so.
A governmental body “is free to determine for itself whether and to what extent it will allow citizen participation at its meetings ... the open meetings law does not dictate all procedural aspects of how bodies run meetings.” If a school board chooses to allow a public comment period, it may, for example, set a time limit for each citizen to speak, and may remove a citizen if he/she becomes disruptive. Requiring attendees to sign in does not violate the open meetings law.
This brings us to the end of Part 4 of our series. Next up in Part 5 of our school law update is Wisconsin decisions on court cases, as well as state superintendent of public instruction decisions regarding IDEA and expulsion.
If you missed any of the previous installments of the series, feel free to check them out …
School Law Update, Part 1: New Wisconsin Laws Enacted & Proposed
School Law Update, Part 2: New Federal Laws Proposed
School Law Update, Part 3: Developments in Federal Constitutional Law