MADISON – A Dane County judge heard oral arguments last week in The Lakeland Times public records case against the Wisconsin Department of Justice, pressing the state’s attorney to explain why case law supporting the release of disciplined employees’ names shouldn’t apply.
The DOJ, which withheld the names of 19 disciplined employees in its response to a 2017 open records request from the newspaper, argued the individuals whose names were withheld hold lower-level positions and their infractions were minor. It also claimed releasing their identities would be tantamount to branding them with a modern-day scarlet letter, Lakeland Times’ Richard Moore reported.
The Times, represented by attorney April Rockstead Barker, argued the state is attempting to create a new categorical exemption to the public records law. Rather than individually reviewing the records, DOJ officials used a blanket exemption for withholding the names.
Barker pointed out that by withholding the names, it’s impossible to determine issues including nepotism, favoritism and if an employee was disciplined multiple times.
“They’re saying, ‘We exercised our discretion and determined whether the characteristics of this category were met,'” Barker said during the hearing. “Are they lower level? Is the misconduct minor?”
Barker also argued that public employees are subject to a higher level of scrutiny.
Assistant Attorney General Gesina Seilor Carson claimed the agency individually reviewed each record and applied the balancing test, during which it relied heavily on the consideration that the internet would allow the information to be widely available.
“It is that concern that is causing the records custodian to tip in favor of redacting the names of employees who have lower-level positions and more of a garden-variety kind of discipline,” she said. “The records on the Internet last basically forever.”
While Carson also argued that releasing the information could have a chilling effect on supervisors, Bailey-Rihn asserted that issue had already been argued in Kroeplin vs. Wisconsin Department of Natural Resources, and the Court of Appeals ruled in favor of the public’s right to know.
Dane County Circuit Court Judge Valerie Bailey-Rihn said she would deliver a written decision, with expectations that the case will be appealed to the appellate level no matter which way it is decided.
