The Wisconsin Court of Appeals Addresses the Public Records Law Related to Applicants for a School Board Vacancy

Part of our goal in preparing legal update articles for our clients is to provide practical guidance on matters relevant to our clients. To public entities, the often-convoluted legal landscape of public records law is one of those topics that, while not always exciting, it is nonetheless important to understand. In that vein, this article discusses various requirements associated with responding to public records requests.

In Mastel v. Elmbrook School District, 2021 WI App 78, the Wisconsin Court of Appeals (“Court”) addressed the release of public records in the context of a school board’s application process for filling a board vacancy. The Court’s ruling addresses not only the standards for release of public records pertaining to board vacancy applicants, but also reiterates the importance of articulating all of the reasons for denying a request or portion of a request when responding to records requests.

Pertinent Facts

The school board sought to fill a board vacancy by inviting qualified individuals to submit an application that included the individual’s name, home address, telephone number, statement regarding the person’s qualifications and interest, as well as a sworn Declaration of Eligibility. The school board received eight applicants, from which it designated five top candidates for further consideration. Prior to the school board’s final decision on appointment, the plaintiff, Cheri Mastel, submitted a public records request, in which she requested a list of the candidates and the applications containing the applicants’ information that each provided to the school board.

Initially, the district responded to Mastel and stated that it had “conducted the applicable balancing test under the [Wisconsin public records law] and has determined that there are record(s) responsive to your request.” The district stated that it intended to release the records, and it eventually released a portion of the records requested.[1] Ultimately, the district released information only on the five final candidates, and with respect to those, it redacted “personal information” which it described as “home address, e-mail address, phone number, or any other personal material that is prohibited” from release.

Mastel filed a petition for a writ of mandamus with the Waukesha County Circuit Court alleging that the district violated Wisconsin’s public records law in denying portions of her request.[2] Specifically, she asserted that the district was not permitted to withhold the application materials of the three candidates who were not finalists, and that the district wrongfully redacted the personal information associated with the final candidates. In addition, Mastel asserted that the district redacted the successful applicant’s contact information on an e-mail that “appears to be from a professional account” and therefore not exempted from disclosure.

The Circuit Court granted the district’s motion to dismiss on the basis that the requestor had “failed to state a claim upon which relief may be granted.” Mastel appealed to the Wisconsin Court of Appeals.

Court of Appeals Analysis

The Court of Appeals reversed the Circuit Court’s decision, finding that Mastel had sufficiently alleged violations of the public records law, such that further court proceedings were required as to several of her claims. In so holding, the Court made numerous significant findings worthy of further discussion.

Standard of Review

In conducting its analysis, the Court began by reiterating the presumption of access that accompanies any public records request in which responsive records are in the possession of a government entity. In addition, the Court noted that a reviewing court’s role is to “make its own independent decisions” as to whether the records custodian’s reasons for denying access are sufficient. However, the Court noted, when the custodian states no reason or insufficient reason, then a writ of mandamus must be issued. In Mastel, the Court concluded that the district had provided insufficient explanation as to the basis for denial and failed to perform (or to articulate in its denial) the balancing test to determine if certain records may be subject to redaction or exclusion from the response. It relied solely on statutory exclusions, which the Court then evaluated.

In addition, the Court rejected the argument that the burden of establishing a right to relief in this case belonged to the plaintiff seeking disclosure. Instead, the Court pointed out that the district bears the burden of establishing that the decision not to release records overcomes the “strong presumption” favoring disclosure. 

As to the specific aspects of the request, the Court treated each separately, as described below.

The Court Rejects the District’s Decision to Deny Access to Materials Filed by the Three Non-Finalists

The district denied access to the applications for three out of the eight candidates, because they were not final candidates under Wis. Stat. §19.36(7), and therefore their identities were not subject to release. That statutory section reads as follows:

(7)  Identities of applicants for public positions.

(a) In this subsection:

1. “Final candidate” means each applicant who is seriously considered for appointment or whose name is certified for appointment, and whose name is submitted for final consideration to an authority for appointment, to any of the following:

…

b. A local public office.

…

2. “Final candidate” includes all of the following, but only with respect to the offices and positions described under subd. 1. a.and b.

a. Whenever there are at least 5 applicants for an office or position, each of the 5 applicants who are considered the most qualified for the office or position by an authority.

…

(b) Every applicant for a position with any authority may indicate in writing to the authority that the applicant does not wish the authority to reveal his or her identity. Except with respect to an applicant whose name is certified for appointment to a position in the state classified service or a final candidate, if an applicant makes such an indication in writing, the authority shall not provide access to any record related to the application that may reveal the identity of the applicant.

The Court rejected this argument because the record before it did not indicate that any of the candidates requested confidentiality. Reviewing the statutory language, the Court concluded that the district could only withhold materials submitted by any of the candidates – including the three who were not considered final candidates – if the candidate requested that their identity not be revealed. The Court noted that there was no evidence to support this statutory exception, and no evidence that the district had balanced the interests and presumption favoring disclosure against the public interest in nondisclosure (the “balancing test”) and therefore, such considerations – even if potentially a basis to withhold the information – could not be considered as a basis to support the decision to withhold records.

The Court Rejects the District’s Decision to Deny Request for Candidates’ Personal Information

In its response to the records request, the district redacted the personal information of the final candidates on the basis of Wis. Stat. §19.36(11), which states as follows:

(11)  Records of an individual holding a local public office or a state public office. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35(1) to records…containing information maintained, prepared, or provided by an employer concerning the home address, home electronic mail address, home telephone number, or social security number of an individual who holds a local public office or a state public office, unless the individual authorizes the authority to provide access to such information. This subsection does not apply to the home address of an individual who holds an elective public office or to the home address of an individual who, as a condition of employment, is required to reside in a specified location.

In rejecting this as a basis to redact portions of the requested records, the Court noted that the cited statutory section applies only to individuals “holding a local public office.” None of the seven unsuccessful candidates hold public office and are therefore not covered by this statute. The district provided reference only to this statute as the basis for denial, which does not apply to those candidates who did not receive the appointment and, again, did not articulate that it had employed the balancing test as a basis to support its decision.[3]

As to the successful candidate, the district redacted what appeared to be contact information not of a personal nature (i.e., home address, personal e-mail address and telephone number), but rather professional contact information. Because the decision to redact this information was supported only by reference to the inapplicable statutory authority, Wis. Stat. 19.36(11), the Court found that the plaintiff had stated a claim for which relief may be granted. This aspect of the case, therefore, required further proceedings at the circuit court level.

The Court Requires Requestor Be More Specific in Requests

Mastel also claimed that her request included a request for the Declarations of Eligibility that the candidates were required to provide to the district as part of the application process. The Court, however, held that the requests provided to the District by Mastel and by her counsel, failed to specify that the request included a request for the Declarations of Eligibility. The Court noted that a claim exists only where the custodian “withholds” records responsive to a request that “reasonably describes the requested record” citing Wis. Stat. §19.35(1)(h). This element of the district’s denial was therefore confirmed.

Important Reminders from this Decisions

The Court in this case found for the plaintiff on all but one issue and sent the case back to the Circuit Court for further proceedings. At this point, the parties will have the opportunity to present evidence in support of their respective positions and, ultimately, the final result may differ. This decision arises in the context of an effort to dismiss the claim at the earliest stages of litigation, which is often difficult to do. The facts as alleged are considered from the plaintiff’s perspective, but a trial may change the balance of evidence and ultimately the outcome.

While not a final decision in this case, this case is instructive as to several key elements of Wisconsin’s public records law. First, when deciding to deny a portion of a records request, it is imperative that the custodian clearly articulate all reasons for denial. If a statutory exception does not clearly apply, the custodian may still evaluate the request using the balancing test to conclude that the public’s interest in withholding the information outweighs the presumption favoring access. If the balancing test is not articulated in the records request denial, however, the Court will not consider it as a basis to support the decision. Second, this decision reminds records custodians that the decision to restrict access is always the custodian’s burden to support. Finally, this case is a reminder that requests should be reviewed to assure that the requestor has provided a clear request so that it can be reviewed accordingly. Vague or imprecise requests can be clarified through communication with the requestor, which ultimately can save significant time and resources.

Conclusion

Public records requests and the complex body of law associated with analyzing and responding to them can be daunting. The consequences of failing to properly analyze and respond can be costly – When a requestor prevails in obtaining a writ of mandamus to compel disclosure, the public entity is responsible for the legal fees incurred by the requestor in that process. As such, the biggest reminder of this and other cases like it (see our prior Legal Update), is that care and attention on the front end of handling public records requests can save significant time, energy, and expense on the back end.

[1] The Court noted that the initial release was delayed by the district and that the plaintiff also alleged the reason for delay was unlawful, however, there is no further discussion in the decision regarding this aspect.

[2] A writ of mandamus is an order issued by a court that compels a government entity to perform a specific action. This cause of action is provided for in Wis. Stat. § 19.37 as a mechanism to challenge the denial of any portion of a public records request.

[3] The Court notes that as of the time of litigation in this matter, the Board had already appointed a candidate to fill the vacancy. Therefore, this only applies to the seven unsuccessful candidates.