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BENCH BLOG: Court helps define when open-records net can take in personal notes

By: Jean DiMotto//June 30, 2015//

BENCH BLOG: Court helps define when open-records net can take in personal notes

By: Jean DiMotto//June 30, 2015//

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Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.
Judge Jean DiMotto retired in 2013 after 16 years on the Milwaukee County Circuit bench and now serves as a reserve judge. She also serves of counsel with Nistler Law Firm. She can be reached at [email protected].

When a mid-state newspaper made a full-court press for the release of employee notes that were taken down during a school district’s disciplinary investigation, the Court of Appeals took the opportunity to construe an exception to the public-records law.

In The Voice of Wisconsin Rapids v. Wisconsin Rapids Public School District, the plaintiff newspaper cited the state’s open-records law in petitioning for a writ of mandamus that would compel the local school district to allow access to the handwritten materials.

The School District objected on the grounds that the notes – taking down during an investigation into an alleged impropriety in a school athletic program – did not fall within the statutory definition of a public “record.”

Circuit court proceedings

During the discovery phase of the lawsuit, the newspaper conducted depositions of various district employees. Those questioned testified that they had written down the notes individually, then used them to refresh their memories concerning parts of the investigation that they had taken part in directly.

They kept the notes in their offices, not distributing them to anyone else, and there was no evidence that the notes had served as the foundation for a cumulative document.

At the newspaper’s request and over the district’s objection, Wood County Circuit Judge Mark Slate conducted an in-camera inspection of the documents and then sealed them.

Slate stated that the materials were primarily “highlights recorded for the originator’s own personal use. The notes consisted, in part, of reminders of what each interviewee had said and listed tasks for the originators to undertake in the investigation.

Also included were doodles, as well as comments reflecting frustration with some parts of the investigation. Slate saw those contents as indicia that the documents were made solely for employees’ own use.

Together with the deposition evidence, Slate stated he had “no doubt” that the materials were “personal notes that were made for the originator’s personal use” as defined in section 19.32(2) of the open records law. Accordingly, he denied the petition for writ of mandamus.

The newspaper appealed.

Court of Appeals decision

The District 4 Court of Appeals’ decision was written by Presiding Judge Brian Blanchard. The court indicated that the matter at issue was the exception to the definition of a public record contained in section 19.32(2). According to the exception, “‘Record’ does not include drafts, notes, preliminary computations and like materials prepared for the originator’s personal use.”

To analyze the word “notes,” the court looked to the common dictionary definition of the word. After reviewing the sealed documents that Slate had inspected, Blanchard wrote, “we cannot think of a more suitable word to describe how these documents appear than ‘notes,’ for the same reasons given by the circuit court.

“They are mostly handwritten and at times barely legible. They include post-it notes and telephone message slips, and in other ways appear to reflect hurried, fragmentary, and informal writing.”

Personal-use exception

The court then analyzed the statutory phrase “prepared for the originator’s personal use.” A 1988 attorney general’s opinion indicated that the phrase should be construed narrowly to mean notes taken for the sole purpose of refreshing one’s recollection later.

If the notes are instead distributed to others to communicate information, or are retained to memorialize agency activity, then they are not excluded from the broad definition of “record.”

In the end, the court was persuaded that the attorney general’s opinion had put forth a correct interpretation of the personal-use exception. It noted that the interpretation was consonant with a 1998 Court of Appeals decision concluding that a judge’s personal sentencing notes fell within the exception.

The court also found significance in the fact that the attorney general is charged with interpreting the public-records law. Moreover, state lawmakers – in the more than 25 years since this opinion was issued – have not seen fit to amend this section of the law despite making many amendments elsewhere.

Applying the legal interpretation of the subsection, and considering the deposition testimony, the court concluded that Slate was correct in finding that the notes were for the employees’ personal use.

In so concluding, the court rejected various arguments put forward by the newspaper in a speculative effort to argue the notes might have been distributed to others in the future (e.g.,  a supervisor might have received a report based on the notes, or the notes might have been retained for use in the event of litigation).

Commentary

The vigor of the newspaper’s appeal is evident in the discussion section of the opinion. Still, I believe the sheer number of arguments it contained resulted in a discussion that was not consistently clear or easy to follow.

Nonetheless, this case presents an excellent example of what kinds of materials are envisioned by “notes” and what is meant by the personal-use exception. Accordingly, it is an important contribution to open-records jurisprudence.

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