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BENCH BLOG: Case raises notable open records concerns

By: Jean DiMotto//June 6, 2014//

BENCH BLOG: Case raises notable open records concerns

By: Jean DiMotto//June 6, 2014//

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Decision could have larger implications for Wisconsin

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 & Condon SC.

In a recent Court of Appeals’ case, domestic violence clashed with the open records law.

Korry Ardell, who now lives in Kiel, in November 2012 submitted an open records request to the Milwaukee Board of School Directors. He sought the release of employment records of a particular public school employee, specifically her missed days and sick days, notes or disciplinary actions against her, and investigations about her.

The board performed the requisite balancing act, weighing the public policy factors favoring disclosure against those favoring limited or complete nondisclosure. The board decided the balance tipped in favor of disclosure with certain redactions. Accordingly, the board wrote to Ardell that his request would be granted.

According to the letter, the board had a duty to notify the employee of the anticipated record release. Following that notification, the employee and the board apparently had a conversation. Thereafter, the board again wrote to Ardell, this time to tell him the board now was denying his request in full.

The board’s stated reasons were Ardell had a domestic abuse injunction issued against him forbidding him from having contact with the employee and he had twice pleaded guilty to violating the injunction. Therefore, the board concluded, “the public interest in protecting the safety and welfare of the employee clearly outweighs the public interest in disclosure in this instance.”

Writ of mandamus proceedings

In State ex rel. Korry Ardell v. Milwaukee Board of School Directors, Ardell petitioned for a writ of mandamus requiring the board to release the records. Milwaukee County Circuit Judge Dominic Amato presided over the hearing and noted the following aspects of the history between Ardell and the employee:

  • In July 2008, the employee petitioned for a domestic abuse injunction against Ardell because of a violent altercation Ardell initiated. A court commissioner granted the request, but Ardell requested a de novo hearing before a judge.
  • Ardell also petitioned for his own domestic abuse injunction against the employee, which was denied. The commissioner was derisive of Ardell’s attempt to portray himself as the victim in the altercation, in which he began hitting the employee on the side of the head and continued with punches and blows.
  • On Oct. 23, 2008, Milwaukee County Circuit Judge Karen Christenson conducted the de novo hearing. Christenson found that the July altercation was part of a continuing pattern of Ardell’s domestic violence and was likely to continue. The employee’s request for a domestic abuse injunction was therefore granted.
  • Less than two weeks later, Ardell was charged with three counts of violating the injunction. He pleaded guilty to two of the violations and the third was considered at sentencing before Milwaukee County Circuit Judge Clare Fiorenza.
  • Fiorenza sentenced him to probation with conditions of 120 days in the House of Correction, completion of a batterers’ treatment program, completion of a mental health evaluation and any recommended treatment, and completion of an alcohol or drug abuse assessment and any recommended treatment.

Given this history, Amato found the board’s concerns for its employee’s safety and welfare were valid. Accordingly, Ardell’s petition for writ of mandamus was denied. Ardell appealed.

Court of Appeals’ analysis

The District 1 Court of Appeals rendered its affirmance decision under the authorship of Judge Kitty Brennan. She began her analysis by referencing the open records statute.

The opening sentence of Wisconsin statute 19.31 declares:

“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.”

Juxtaposing this stated public policy against Ardell’s violence and harassment, together with his violations of an injunction, the court concluded that nondisclosure of the requested records was “prudent.”

“Because Ardell’s violent history with the … employee reveals that his intent in this case was to harass the employee,” according to the court, “he has no clear, specific legal right to the documents he requests, nor does the [board] have a positive and plain duty to reveal these documents.”

Ardell’s arguments

Ardell argued that the board improperly considered his identity as the requester when the only exception for doing so is for committed or incarcerated persons.

The court noted that Ardell “has not aligned himself with the general class of persons who request disclosure of records in order to ensure transparent government.” Rather, his violent history and convictions aligned him more closely with committed and incarcerated persons where the issue in disclosure concerns safety.

Ardell next argued that the board failed to specifically identify the safety concerns in the redacted records. The court found that the board’s denial was sufficiently specific and that it need not hypothesize about particular ways Ardell could use the records to harass the employee.

“Ardell has … demonstrate[ed] an intent to hurt the employee,” according to the court, “and it would be contrary to common sense and public policy to permit him to use the open records law to continue his course of intimidation and harassment.”

The court also rejected Ardell’s argument that Amato should have conducted an in camera review of the redacted records. It observed that Amato correctly noted Ardell was a predator in relation to the employee, and remained so despite his convictions and jail time.

Commentary

This case is an important contribution to open records law jurisprudence. It is the first time the law has been interpreted in the context of domestic violence dynamics.

It also is one of the few times that a court used an exception based on public policy as opposed to one created by statute or case law.

Brennan’s opinion appropriately emphasized the purpose of the open records law as ensuring “transparent government” not searching for information to target and harass individual public employees.

In these contentious times when legal means are used to harass and intimidate, this case may have broader application than domestic violence cases.

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