2008 Public Records Audit

'Woznicki' notices often confuse custodians and delay requests

by Ashley Siefert

One of the more unusual incidents in the recent Wisconsin Freedom of Infomration Coucnil public-records audit came when the Beaver Dam school district asked a reporter to give back copies of school board minutes because the district wanted to issue "Woznicki" notices.

Ultimately, the district re-issued the same minutes to the reporter, which did not identify any staff members by name. But it demonstrates that the Wisconsin Supreme Court case named Woznicki v. Erickson continues to affect open records requests across the state, sometimes because it is warranted and other times because of confusion by records custodians as to when these notices are actually required.

“There hasn’t been a good consequence to this newly created right,” said Bill Lueders, president of the Wisconsin Freedom of Information Council. “It’s just been delay, expense, and denial of access.”

The concept of Woznicki notices arose out of a 1996 Wisconsin Supreme Court case. Thomas J. Woznicki, a school district employee, filed a lawsuit to stop the release of private phone records. After losing in the circuit court system, Woznicki took his case to the court of appeals, which reversed the decision stating the phone records were private records and therefore not available to the public.

The Court ruled that before a custodian could release records possibly harmful to the reputation or privacy of an individual in such open records, the subject must be given reasonable opportunity to seek court review regarding the release of the records.

After the decision, records custodians applied the Woznicki procedure broadly, often erring on the side of the individual’s right to block the release of records. However, under the 2003 amendment a Woznicki notice only needs to be sent if the person mentioned is a public employee, a private employee working under government contract, or any person mentioned in a record if a subpoena or warrant was issued for the document.

Just over five years ago, the Wisconsin Legislature passed a bill amending the Wisconsin Open Records Law. The bipartisan legislation sought to define more explicitly the types of records subject to Woznicki notices and set time limits for the process.

While the fix to the Woznicki procedure was a big step towards increased openness of records compared to 1996, Wisconsin journalists say several problems still exist.

“It was probably objectively, manifestly a rotten Supreme Court decision,” Lueders said. “I think that there’s some logic to the legislature passing that law [in 2003] to at least provide some guidance to custodians because they didn’t know what to do.”

One problem that has arisen since the initial Woznicki decision is a delay in access to records, which has greatly impacted how journalists do their jobs.

“Now the custodian not only has to decide if they’re going to release the record, they have to notify the subject that they’ve decided that and give the subject time to oppose it,” Lueders said. The law requires custodians to wait at least 12 business days before releasing documents subject to Woznicki notices.

For example if a request for a disciplinary record of a government employee were filed on December 1, the requestor would not be able to see to document until December 17, at the earliest. An even longer delay would apply if the person sent the Woznicki notice decided to pursue legal action.

A second problem for journalists is that oftentimes a Woznicki notice means they will not have access to potentially important documents before a news deadline.

Wisconsin State Journal reporter and investigative journalist Dee Hall said it is possible to continue a story without records that require Woznicki notices to be sent, assuming the other sources interviewed are credible. However, these documents requested by reporters are crucial to providing the public with a more accurate account of events and also prevent reporters from writing about things that are untrue.

“First of all [the records] document what happened, because a lot of times we don’t know exactly,” Hall said. “We’ll get a tip that somebody was fired because they were drunk on the job or something and we don’t know if that’s true. Generally speaking when somebody gets fired the reasons are often vague and not the full truth. So those records are a way of documenting the actual reasons for the termination.”

While time delays and accurate news stories are a huge concern for journalists, the main problem created by Supreme Court when requiring Woznicki notices was a loss of openness of public records not only to journalists, but to all Wisconsin citizens.

Before the Woznicki v. Erickson case, all records were presumed to be open under the Freedom of Information Act, unless it could be proven that restricting access outweighed the public’s right to know. However, since Woznicki, there have been few, if any, cases that have proved this to be true.

“Here’s the thing about Woznicki,” said Lueders. “We [the Wisconsin Freedom of Information Council] are unaware, of any circumstance ever, where a person has filed the lawsuit to block the release of records due to Woznicki notification and has prevailed.”

He continued saying that few people even take advantage of their right to challenge the release of the records.

“Only a minority of people who get Woznicki notification will bring legal action to stop the release of the record. Most of the time if they do it’s because they’re represented by a union and unions have lots of money fore stuff like this. But most of the time, I think people are not fighting it because you through experience I know that it’s going to cost $10,000 or $12,000 or $15,000 and you’re not going to win, so why spend the money.”

According to Jason Stein, a state government reporter for the Wisconsin State Journal, the public should always be wary if our right to information is inhibited in some way.

“I think that anyone in the public including the media ought to be able to find out relevant information about how well an employee, a public employee, is serving the public good. Anything that would prevent that from happening is worth giving that serious screening,” Stein said.

Hall, Lueders and Stein, like many reporters, would prefer the records impacted by Woznicki notices to be given immediately upon request, much like they were prior to 1996. However, this is a process that they have become familiar with and has become accepted as part of the job.

Lueders said that in order for the law to change back to how it was, it would likely take a clear example of abuse by a public official who manipulated the system to prevent the release of information about them personally. For example, a politician running for office who uses his right to sue to prevent information from coming out during an election. With out this type of a situation occurring, a change in the current law regarding Woznicki notices is unlikely.