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home : news : watchdog April 15, 2014

6/13/2013 3:51:00 PM
Lakeland Times vs. LUHS legal briefs - open records case

As we promised in the Friday, June 14, print edition's editorial on page 9 and in the editor’s note with Lakeland Union High School Board President Dr. Tom Gabert’s letter on page 8, The Lakeland Times is publishing the complete legal briefs from both sides in the ongoing open-records case against LUHS.

We do so as part of a direct response to the letter in today’s edition by Dr. Gabert. In his letter, Dr. Gabert levels a charge of McCarthyism against the newspaper but omits the district’s core argument that the records sought are protected even if the district fabricated them. We point out that we have only sought a confidential verification that the records are authentic.

While the newspaper feels compelled to respond to Dr. Gabert’s charges, we also believe readers should be able to decide the truth for themselves. 

And so, the following are the complete legal arguments made to the court by the newspaper and by LUHS on two separate motions – a LUHS motion to dismiss and a Times’ motion to compel discovery.

LUHS lost on both counts.

Finally, Dr. Gabert suggests our reporting on the hearing on those motions was filled with editorial comment by the newspaper. We stand by the story as a fair and factual report of the events that day. The court transcript is not yet available, but once it is we will let readers decide for themselves on that count, too.


Lakeland Times briefs

 

THE LAKELAND TIMES

and

GREGG WALKER,

Plaintiffs,

v.

LAKELAND UNION HIGH SCHOOL,

Defendant.

 

 

Case No. 12-CV-247

 

Case Classification:

Other Extraordinary Writ

 

Case Code:  30954

 

NOTICE OF MOTION AND PLAINTIFFS’ MOTION TO

COMPEL DISCOVERY OR APPOINT A REFEREE

Wis. Stat. §§ 804.12 and 805.06

 

PLEASE TAKE NOTICE that the plaintiffs will bring the following motion for hearing at a date and time to be set by the court.

MOTION

The plaintiffs (“the newspaper”), by their counsel, move the court under Wis. Stat. § 804.12 for an order compelling discovery, subject to an appropriate protective order, to determine whether the comments contained in the record at issue are genuine or, alternatively, for an order under Wis. Stat. § 805.06, for an order appointing a referee to investigate that issue and report to the court.

The newspapers’ motion is supported by the Affidavit of Gregg Walker (“Walker Aff.”), the Plaintiffs’ Brief in Opposition to Defendant’s Motion for Summary Judgment and the entire record in this action.  In support of their motion, the newspaper states that:

The newspaper served a series of interrogatories on LUHS that were intended to elicit background information about the hiring process LUHS used to fill the boys’ basketball head coach position in 2012.  In particular, Interrogatory No. 3 sought the identity of each “prior employer” of Rich Fortier LUHS contacted for comment concerning his application for that position.  The newspaper sought those identities to enable them to contact the prior employers and verify LUHS’s representations concerning the record at issue in this action.

LUHS objected and refused to answer any of the plaintiffs’ interrogatories.  A copy of defendant’s answers to plaintiffs’ first set of interrogatories, which restates each interrogatory along with the asserted basis for LUHS’s objection, is attached as Exhibit A.

Counsel for the parties conferred in good faith but were not able to resolve their discovery dispute.

The newspaper proposed that its counsel be provided access to the record at issue, subject to a protective order that would maintain the confidentiality of that record pending the final determination of this action, as authorized in any open records enforcement action under Wis. Stat. § 19.37(1)(a):

The requestor may bring an action for mandamus asking a court to order release of the record.  The court may permit the parties or their attorneys to have access to the requested record under restrictions or protective orders as the court deems appropriate.

See, e.g., Milwaukee Journal v. Call, 153 Wis. 2d 313, 319-21, 450 N.W.2d 515 (Ct. App. 1989). 

The newspaper further proposed that the parties’ counsel jointly contact the sources whose comments are included in the record at issue, or proceed formally by subpoena for deposition, to verify whether the record contains “honest comments” as LUHS contends. The newspaper proposed to voluntarily dismiss this action, with prejudice, if this process established that the recorded comments were genuine. 

LUHS declined this proposal.

The newspaper also proposed, in the alternative, that LUHS join it in requesting that the Court appoint a referee to investigate whether the comments contained in the record at issue are genuine and report its determination to the Court, again subject to an appropriate protective order.  See Wis. Stat. § 805.06.  The Supreme Court recently noted that a referee may be appointed under this statute “to assist the court in obtaining facts and arriving at a correct result in complicated litigation.”  Ehlinger v. Hauser, 2010 WI 54, ¶ 76, 325 Wis. 2d 287, 785 N.W.2d 328.  While this case is not particularly complicated, there must be some process established for “obtaining facts and arriving at a correct result.”   LUHS declined this proposal as well.

The information the newspaper seeks through discovery under a protective order or by appointment of a referee is relevant to the subject matter involved in this action and is reasonably calculated to lead to the discovery of admissible evidence.  See Wis. Stat. § 804.01(2)(a).  LUHS cannot prevail without admissible evidence supporting its claimed exemption and the newspaper is entitled to test that evidence under the rules of civil procedure.  See, e.g., Sands v. Whitnall Sch. Dist., 2008 WI 89, ¶ 18, 312 Wis. 2d 1, 754 N.W.2d 439 (“The right to discovery is an essential element of our adversary system.”).

LUHS has not explained why it contends the identifies of the “former employers” it contacted for comment are properly kept secret under Wisconsin law.  Wis. Stat. § 19.36(10)(d) requires that “letters of reference” be kept from the public, but not the names of those who provide them.  Accordingly, LUHS properly disclosed the names of the references Fortier submitted with his application.  With this information, the newspaper was able to determine that, contrary to the representation in LUHS’s summary judgment brief (“[LUHS] … withheld the memorandum of the comments by Fortier’s references,” page 2), none of them was actually contacted or provided any comments beyond the letter of reference each submitted to LUHS at Fortier’s request.  LUHS’s refusal to identify the “former employers” it claims provided the comments contained in the record at issue, by contrast, prevents the newspaper from learning whether they were even called by LUHS.

The newspapers’ reasons for questioning the legitimacy of LUHS’s representations concerning the contents of and sources for the record at issue are set forth in the Affidavit of Gregg Walker, and have been reported, without contradiction, in The Lakeland Times. LUHS has told the public that its “goal is to maintain a process that collects honest comments about a future employee,” but LUHS has refused to endorse any process for discovering the factual basis for that assertion. This Court should reject any argument that LUHS need not prove the record at issue contains “honest comments” by Mr. Fortier’s former employers or that the newspaper is not entitled to verify that claim, through discovery or the appointment of a referee, subject to an appropriate protective order.

WHEREFORE, the court should grant the newspapers’ motion and order LUHS to:

Submit the record at issue to the court, for in camera inspection, and to the newspaper’s counsel, under Wis. Stat. § 19.37(1)(a), subject to an “attorneys’ eyes only” protective order that prohibits disclosure of the record’s contents to anyone, including Mr. Walker and anyone else at the newspaper, except to ask each source to verify the authenticity of the recorded comments attributed to that source, pending the final determination of this action.

Identify the source of each comment included in that record, if the source is not named in the record, to enable the newspapers’ counsel in cooperation with counsel for LUHS to confidentially verify with each source whether the source is a former employer of Rich Fortier and whether the source made the comments attributed to that source in the record at issue.

In the alternative, the Court should appoint a referee to confidentially investigate and report to the Court factual findings concerning whether the comments included in the record at issue were made by the source to whom they are attributed and whether each source is a former employer of Rich Fortier.  The order of reference should require that the record of the investigation and the referee’s findings be provided to the newspapers’ counsel, subject to an “attorneys’ eyes only protective order” as described above, but otherwise remain confidential pending the final determination of this action.

 

THE LAKELAND TIMES

and

GREGG WALKER,

Plaintiffs,

v.

LAKELAND UNION HIGH SCHOOL,

Defendant.

 

PLAINTIFFS’ BRIEF IN OPPOSITION

TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

Lakeland Union High School’s motion for summary judgment must be denied because it is not supported by admissible evidence. Indeed, LUHS merely assumes the existence of the central, dispositive fact the plaintiffs brought this case to determine -- whether the record at issue, in fact, contains actual comments made to LUHS administrators by former employers of Rich Fortier, in connection with his application for the position of boys basketball coach at LUHS. LUHS’s motion fails the essential, threshold requirement of every summary judgment movant -- that the motion be grounded on “evidentiary facts [that] would be admissible in evidence.”  Wis. Stat. § 802.08(3).

 

BACKGROUND FACTS

This open records enforcement action arises from a request by Gregg Walker, publisher of The Lakeland Times (together, “the newspaper”), to inspect and copy the record that LUHS School Board member Tami Schroeder described at a public meeting on August 27, 2012 as “negative comments” concerning Rich Fortier, who was then one of two final candidates for the position of boys basketball coach at LUHS. The record with these comments was provided to a five-member committee of citizens that LUHS had created to interview the two final candidates for that position and express their opinions on which should be hired. It also was sent to at least one LUHS school board member, in advance of the August 27 meeting.  

LUHS denied the newspaper’s request for a copy of the record Ms. Schroeder referenced at the August 27 meeting, which it describes as “notes drafted by … [LUHS] Principal James Bouché regarding [his] telephone conversations with prior employers of Mr. Fortier.”  LUHS contends in its denial letter that the comments are exempt from public access, under Wis. Stat. § 19.36(10)(d) and the common law balancing test, analogizing the recorded comments to a “letter of reference.”   

The newspaper denies that the record is exempt, based on its allegation that the document does not contain “a true and fair report of the comments of Mr. Fortier’s prior employers. To the contrary, those comments were either selectively edited to negatively portray Mr. Fortier or they were not made by anyone who could fairly be described as his former employer.”  LUHS denies this allegation, and now asserts that the record contains “comments by Fortier’s references.”  Summary Judgment Brief of Lakeland Union High School (“LUHS Brief”), (LUHS press release stating its “goal is to maintain a process that collects honest comments about a future employee.”).  The contents of and sources for the record, therefore, are material disputed issues for trial.

ARGUMENT

LUHS incorrectly anticipates a dispute with the newspaper over the applicable legal principles. There is none.  Rather, this case presents only a factual dispute -- whether the record at issue is what LUHS administrators claim it is -- a compilation of actual comments made to Mr. Bouché by former employers of Mr. Fortier or by his references concerning his past performance and qualifications for the boys basketball coach position at LUHS. The Court should deny LUHS’s motion for summary judgment because it has submitted no admissible evidence to support the representation in its brief that the record contains genuine comments by former employers or references concerning Mr. Fortier.

 

THE NEWSPAPER AGREES WITH LUHS ON THE APPLICABLE LAW.

The newspaper agrees with LUHS that some public employee personnel records, including “letters of reference,” are exempt from public access under Wis. Stat. § 19.36(10)(d). This exemption brings the Open Records Law in line with the longstanding exemption to every employee’s right of access to inspect and copy his or her personnel file.  See Wis. Stat. § 103.13(6)(b).  

Contrary to LUHS’s expectation, moreover, the newspaper does not contend that “a letter of reference must be reduced to writing by the reference himself or herself” to support a denial of access under the Open Records Law.  The newspaper agrees that a record containing a true and fair summary of oral comments concerning past performance or qualifications made by an applicant’s references or former employers, by telephone or in person, can be withheld from the public under the common law balancing test, based on the same public policy that supports Wis. Stat. § 19.36(10)(d) and 103.13(6)(b).  

The newspaper also agrees with LUHS that the “strong public policy” supporting this exemption is “to allow candid critiques” of applicants, by their former employers, and to “encourage qualified job applicants to apply to work for government entities, such as Lakeland Union High School.”  

The rationale behind the public policy is that employers will be less willing to speak frankly (sometimes negatively) about employees without assurance that their comments will be kept confidential. 

Precisely. Nobody disputes a public employer’s right “to maintain a [confidential] process that collects honest comments about a future employee.” 

The newspaper contends the employer cannot claim this exemption, however, if the recorded comments are not, in fact, “honest.”  This exemption and the public policy it is designed to advance assume good faith by both the former employer and the prospective employer in the hiring process. The exemption does not apply if, as alleged here, the prospective employer misrepresents or fabricates the oral comments of an applicant’s references in order to influence the hiring decision.  Applying the exemption under those circumstances would only conceal the prospective employer’s misconduct from the public, not any former employer’s “frank comments.”   And that would defeat the “main purpose of the public records law,” which is “to enable the citizenry to monitor and evaluate the performance of public officials and employees.”  Journal/Sentinel, Inc. v. School Board, 186 Wis. 2d 443, 459, 521 N.W.2d 165 (Ct. App. 1994).

Wisconsin law encourages employers to provide references for former employees by presuming good faith and providing them immunity “from all civil liability that may result from providing that reference.”  Wis. Stat. § 895.487(2).  The privilege is not absolute, however, and can be overcome if “lack of good faith is shown by clear and convincing evidence.” see Gibson v. Overnite Transp. Co., 2003 WI App 2010 ¶ 16, 267 Wis. 2d 429, 671 N.W.2d 388.  

The same principle must apply here.  The Court should find that LUHS cannot claim the exemption provided in Wis. Stat. § 19.36(10)(d), either directly or by application of the common law balancing test, without proving that the record at issue is, in fact, what LUHS claims it is – “prior employers’ evaluations and judgments of Mr. Fortier provided to [LUHS] as part of the hiring process.” If the comments were fabricated, for example, or were not made by Mr. Fortier’s references or former employers, the exemption LUHS claims should not apply -- just as a former employer cannot claim immunity under Wis. Stat. § 895.487(2) if it “knowingly provided false information in the reference,” neither should a public employer be entitled to keep a record secret under Wis. Stat. § 19.36(10)(J) or the balancing test if the recorded comments are not genuine. In either circumstance, the immunity or exemption is forfeited because the public policy to encourage “candid” employment references is defeated by bad faith in the process.

 

A GENUINE ISSUE OF 

MATERIAL FACT PRECLUDES SUMMARY JUDGMENT

LUHS mistakenly asserts that the following material facts concerning the record at issue are undisputed:

As part of the selection process, the athletic director, Justin Szews, and the principal, James Bouché, conducted a background check of [the two final candidates] by calling references and noting the references’ comments in memoranda.    

[LUHS produced most of the records the newspaper requested, but] withheld the memorandum of comments by Fortier’s references.  

There is no evidence in the summary judgment record to support these factual assertions by LUHS’s counsel.

LUHS cites its own letter responding to the newspaper’s request in support of these allegations, id., but that letter is not proof that the record contains the actual comments made by former employers of Mr. Fortier concerning his past performance or qualifications for the LUHS coach position.  To properly support its motion, LUHS needed to submit an affidavit from someone with personal knowledge of these facts, presumably Mr. Bouché. It is settled law that “statements of fact by counsel in briefs cannot substitute for the affidavits required by sec. 808.08(3).”  Wisconsin Hosp. Ass’n v. Natural Resources Bd., 156 Wis. 2d 688, 723, 457 N.W.2d 879 (Ct. App. 1990).  

The Affidavit of Dustin T. Woehl submitted with LUHS’s motion does not cure this fatal deficiency. Mr. Woehl does not claim he has personal knowledge concerning the record’s content or the circumstances surrounding its preparation.  He merely attached as an exhibit to his affidavit the newspaper’s complaint which, in turn, attached the LUHS denial letter as an exhibit. Simply attaching that letter as an exhibit to counsel’s affidavit does not render the facts asserted in the letter “admissible in evidence,” however, as the law has always required to support a motion for summary judgment.  Wis. Stat. § 802.08(3).  The Court should deny LUHS’s summary judgment motion because it is not supported by admissible evidence.

 

CONCLUSION

The Open Records Law requires more than simply a specific statement of valid reasons to justify withholding a record from the public. When properly challenged, as in this case, the custodian must submit sufficient evidence for “the trial court [to] make a factual determination supported by the record of whether the documents implicate the public interests in secrecy asserted by the custodians.”  Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 157, 469 N.W.2d 68 (1991). In other words, the court must be able to determine from admissible evidence whether there is a factual basis for the secrecy concerns asserted by the record custodian. The summary judgment record before this Court contains no such evidence, much less sufficient undisputed evidence, to support that essential element of LUHS’s defense.

The newspaper agrees with LUHS that state law permits it to withhold the record from public inspection if it is, in fact, a “memorandum of comments by Fortier’s references,” as LUHS contends. The district’s bare assertion of this fact does not make it so, however, just as the Supreme Court ruled in a similar case challenging a county’s bare assertion that a requested record was a “draft” properly excluded from public access:

Upon a demand for inspection, the custodian of the document bears the burden of proof of facts demonstrating that it is a draft.  The decision that a document is a draft under sec. 19.32(2), Stats., is a legal conclusion.  However, if there exists a factual dispute, the custodian has the burden of producing evidence and persuading the finder of fact that the proffered facts are true.  The custodian must satisfy the finder of fact by the greater weight of the credible evidence that the document is a draft.

Fox v. Bock, 149 Wis. 2d 403, 417 (438 N.W.2d 589 (1989))(citation omitted).  So it is here. LUHS’s summary judgment motion should be denied because the district has not carried its “burden of producing evidence” sufficient to establish “that the proffered facts [LUHS relies upon as a defense] are true.”  

 

THE LAKELAND TIMES

  and

GREGG WALKER,

Plaintiffs,

v.

LAKELAND UNION HIGH SCHOOL,

Defendant.

 

Gregg Walker, being duly sworn, on oath, states that:

I am the publisher of The Lakeland Times (the “newspaper”) and a plaintiff in this action.  I make this affidavit based on my personal knowledge from attendance at public meetings of the Lakeland Union High School (“LUHS”) Board of Education (the “Board”), interviews of LUHS administrators and others, and my review of public records obtained by the newspaper.  I submit this affidavit in support of the plaintiff’s motion to compel discovery.

The public records request at issue in this action arises out of the process to fill the boys basketball head coach position at LUHS, which began last summer when the former coach announced his intention to retire after holding the position for 38 years.

I became interested in the hiring process last July when I received calls from parents who wanted to know why LUHS did not intend to interview Rich Fortier, the principal at Arbor Vitae-Woodruff Elementary School and the former boys basketball head coach at Rhinelander High School, even though he had expressed interest in the opening at LUHS.

I called LUHS Superintendent Todd Kleinhans to inquire and he told me that he believed administrative personnel should not be hired as athletic coaches because it would be impossible to perform both jobs effectively.  He said LUHS wanted to hire a coach who would work “inside the building” by also filling an open faculty position as “academy program facilitator.”  Fortier would not be interviewed, Kleinhans said, because Fortier had applied only for the coach position.  

LUHS received a number of applications for the combined academy program facilitator/boys basketball coach position and, after interviews, administrators recommended that the school board hire Levi Massey, who was then a social studies teacher and boys basketball head coach at Menomonie High School.  

The Board met on July 23, 2012 to consider its administrators’ recommendation and nearly 70 residents attended the meeting, many of whom spoke in favor of hiring Fortier and others in favor of Massey.  

Following the public comment period, and a discussion by members in closed session, the Board voted 5-4 to reject the administrators’ recommendation to hire Massey and also to suspend the policy preference to hire a coach who also is a teacher at LUHS.

LUHS separately posted and advertised to fill the head boys basketball coach position following the Board’s July 23 meeting.  The academy program facilitator position was not reposted and, at a special meeting in early August, the Board voted 6-2 to hire Massey to fill that position.

LUHS administrators appointed a committee of citizens to interview the two final candidates -- Massey and Fortier -- for the head boys basketball coach position.  The committee conducted those interviews on August 23 and, later that same day, Kleinhans informed the Board by e-mail that the committee had unanimously recommended that the Board hire Massey.

The Board met on August 27 to again consider the recommendation of LUHS administrators and, now, the citizen committee as well, to hire Massey as head boys basketball coach.  I attended that meeting, which again featured strong opinions for both candidates during the public comment period.  Before the Board convened in closed session to discuss the issue, Board member Tami Schroeder referred to an e-mail and attachments the Board had received from Kleinhans and asked [Kleinhans?] why the citizen committee had been given two pages of negative comments about one of the candidates and none on the other candidate.  Schroeder’s question was not answered during the public portion of the meeting.  

After about 30 minutes, the Board reconvened in public session and voted 5-4 to again reject the recommendation to hire Massey, and then voted 7-2 to hire Fortier as head boys basketball coach. 

I decided to look into Schroeder’s question about the negative comments and submitted the public records request at issue in this action to LUHS the next day, August 24, seeking the e-mail and attachments she had referenced during the meeting.  Kleinhans responded for LUHS on September 10, disclosing most of the records I had requested, including the application letter and resumé that Fortier submitted to LUHS, but withholding the two-page record of comments Schroeder had asked about.  That response is attached as Exhibit A to the complaint in this action, along with some of the records LUHS produced.

The response describes the two-page record Schroeder asked about as “notes drafted by Athletic Director Justin Szews and Principal James Bouché regarding their telephone conversations with prior employers of Mr. Fortier.” LUHS later clarified that the comments concerning Fortier “were drafted by Mr. Bouché.” 

I investigated further because, although I have never met Fortier, I had never heard any negative comments about him from anyone in the community, as a person, a school principal or coach.  I understood from Schroeder’s comments at the August 27 Board meeting that she questioned the authenticity of the recorded comments concerning Fortier and the fairness of the hiring process.

I interviewed several members of the citizen committee who said the committee was not given the record containing comments about Fortier until after he had been interviewed.  This timing made me suspicious of the process LUHS administrators followed because it prevented the committee from asking Fortier about the comments.

I called the three references Fortier had identified in the resumé he submitted to LUHS with his application for the coach positions, a copy of which was produced by LUHS in response to my public records request:

Jeff Reiche, identified as former head basketball coach at Marathon High School and principal at Marathon Venture Academy;

Robert Hanson, identified as retired superintendent of Rhinelander School District and president of Wisconsin School Music Association; and Rick Morgan, identified as superintendent at Arbor Vitae-Woodruff J-1 School District.

I spoke separately with each of these men, by telephone, and each told me that he had submitted a letter of reference supporting Fortier’s application but had not been contacted for further comment by anyone at LUHS.

I also called four men I thought might fairly be described as “prior employers of Mr. Fortier,” 

Roger Erdahl, superintendent at Rhinelander School District;

Charlie LeHam, athletic director at Rhinelander School District; 

Terry Fondow, former principal at Rhinelander High School; and

Tim Howell, principal at Central Elementary in Rhinelander.

I spoke separately with each of these men, by telephone, and Erdahl, LeHam and Fondow each told me that he had not been contacted by LUHS for comment on Fortier’s application.

Tim Howell told me that he was contacted for comment about Fortier.  Howell said he thought it was Bouché who called him by telephone, and said his response included nothing negative about Fortier.  “I had nothing negative to say, no,” Howell told me.  “I worked with Rich for many years down here.  In fact, I even coached him when he was a sophomore in high school.”  Howell told me he did recall making a positive mention about Fortier having taken the boys team to the state tournament when he was head coach at Rhinelander.

I learned earlier this year that LUHS administrators had offered the academy program facilitator/boys basketball head coach position to Massey, in writing, before the Board’s July 23 meeting, and had told Massey that Board approval was a mere “formality.”  When Massey informed Menomonie School District officials that he planned to accept the LUHS offer, they urged him to resign his current positions as social studies teacher and boys basketball head coach at Menomonie High School so they could begin recruitment.  Massey did just that and, on July 23, 2012, the same night the Board first voted not to accept the LUHS administrators’ recommendation to hire Massey for the academy program facilitator/ boys basketball head coach position at LUHS, the Menomonie School Board accepted Massey’s resignation of his employment there.  A copy of Massey’s July 25 e-mail explaining why he was seeking employment as a result of these developments, which the newspaper obtained in response to a public records request, is attached as Exhibit A to this affidavit.

The Board issued a press release in response to this lawsuit, which emphasized the Board’s “goal is to maintain a process that collects honest comments about a future employee.” A complete copy of that press release is attached as Exhibit B to this affidavit. Ironically, I brought this action to determine whether the record Ms. Schroeder asked about during the Board’s August 23, 2012 meeting, in fact, contains “honest comments about” Mr. Fortier.  

All of the facts set forth in this affidavit have been reported in the newspaper, without contradiction by LUHS, the Board or any other person.

Gregg Walker 



Lakeland Union High School briefs

 

THE LAKELAND TIMES and GREGG WALKER,

Plaintiffs,

vs.

LAKELAND UNION HIGH SCHOOL

Defendant.

PLEASE TAKE NOTICE that the defendant, Lakeland Union High School, by its attorneys, Kasdorf, Lewis & Swietlik, S.C., will move the court, the Honorable Leon D. Stenz, in his courtroom, in the Forest County Courthouse, 200 East Madison Street, Crandon, Wisconsin 54520 for summary judgment pursuant to Wis. Stat. § 802.08, on the 241h day of May, 2013 at 1:00 o’clock, p.m., or as soon thereafter as this matter can be heard.

This motion is based upon the record and file herein as well as upon the affidavit of Dustin Woehl filed herewith. A brief in support of the motion is also filed herewith.

Case No. 12-CV-247 Case Code: 30954

 

THE LAKELAND TIMES and GREGG WALKER,

Plaintiffs,

vs.

LAKELAND UNION HIGH SCHOOL

Defendant.

 

Affidavit of Dustin T. Woehl

DUSTIN T. WOEHL being first duly sworn on oath, deposes and says the following:

1. I am an attorney with the firm of Kasdorf, Lewis & Swietlik, S.C., attorneys retained to represent the defendant in the above-captioned matters. I make authorized to make this affidavit in support of its motion for summary judgment.

  1. Attached as Exhibit 1 is a copy of the plaintiffs’ complaint in this case, including Exhibit A to that complaint, which is the September 10,2012 response by Lakeland Union High School to the plaintiffs’ records request.
  2. Attached as Exhibit 2 is a copy of 2003 Wisconsin Act 47, including the Joint Legislative Counsel Prefatory Note.

 

THE LAKELAND TIMES and

GREGG WALKER, Plaintiffs,

v.

LAKELAND UNION HIGH SCHOOL,

Defendant.

TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

Lakeland Union High School’s motion for summary judgment should be denied because it is not supported by admissible evidence. Indeed, LUHS merely assumes the existence of the central, dispositive fact the plaintiffs brought this case to determine -- whether the record at issue, in fact, contains actual comments made to LUHS administrators by former employers of Rich Fortier, in connection with his application for the position of boys basketball coach at LUHS. LUHS’s motion fails the essential, threshold requirement of every summary judgment movant-- that the motion be grounded on “evidentiary facts [that] would be admissible in evidence.” Wis. Stat. § 802.08(3)

 

BACKGROUND FACTS

This open records enforcement action arises from a request by Gregg Walker, publisher of The Lakeland Times (together, “the newspaper”), to inspect and copy the record that LUHS School Board member Tami Schroeder described at a public meeting on August 27, 2012 as “negative comments” concerning Rich Fortier, who was then one of two final candidates for the position of boys basketball coach at LUHS. The record containing these comments was provided to a five-member committee of citizens that LUHS had created to interview the two final candidates for that position and express their opinions on which should be hired. It also was sent to at least one LUHS school board member, in advance of the August 27 meeting. 

LUHS denied the newspaper’s request for a copy of the record Ms. Schroeder referenced at the August 27 meeting, which it describes as “notes drafted by ... [LUHS] Principal James Bouche regarding [his] telephone conversations with prior employers of Mr. Fortier.” LUHS contends in its denial letter that the comments are exempt from public access, under Wis. Stat.§ 19.36(10)(d) and the common law balancing test, analogizing the recorded comments to a “letter of reference.”

The newspaper denies that the record is exempt, based on its allegation that the document does not contain “a true and fair report of the comments of Mr. Fortier’s prior employers. To the contrary, those comments were either selectively edited to negatively portray Mr. Fortier or they were not made by anyone who could fairly be described as his former employer.” 

LUHS denies this allegation, and now asserts that the record contains The contents of and sources for the record, therefore, are material disputed issues for trial.

This brief cites to the complaint, alone, for allegations that are admitted in LUHS’s answer. Otherwise, the brief cites to the affirmative allegations of LUHS’ s answer for background facts that the newspaper does not dispute.

 

ARGUMENT

LUHS incorrectly anticipates a dispute with the newspaper over the applicable legal principles. There is none. Rather, this case presents only a factual dispute -- whether the record at issue is what LUHS administrators claim it is -- a compilation of actual comments made to Mr. Bouche by former employers of Mr. Fortier or by his references concerning his past performance and qualifications for the boys basketball coach position at LUHS. If so, the record will remain secret. The public is entitled to know, however, if LUHS administrators fabricated or embellished the comments, consistent with the Open Records Law’s central premise:

All officers and employees of government are, ultimately, responsible to the citizens, and those citizens have a right to hold their employees accountable for the job they do.

Journal/Sentinel, Inc. v. School Board, 186 Wis. 2d 443,459,521 N.W.2d 165 (Ct. App. 1994). The court should deny LUHS’s motion for summary judgment because it has submitted no admissible evidence to support the representation in its brief that the record contains genuine comments by former employers or references concerning Mr. Fortier.

I. THE NEWSPAPER AGREES WITH LUHS 

ON THE APPLICABLE LAW.

The newspaper agrees with LUHS that some public employee personnel records, including “letters of reference,” are exempt from public access under Wis. Stat.§ 19.36(10)(d). This exemption brings the Open Records Law in line with the longstanding exemption to every employee’s right of access to inspect and copy his or her personnel file. See Wis. Stat.§ 103.13(6)(b).

2 The newspaper’s proposal for resolving that dispute, while respecting LUHS’s right to keep the comments confidential if they are, in fact, genuine, is the subject of Plaintiffs’ Motion to Compel Discovery or Appoint a Referee filed with this brief.

3 Contrary to LUHS’s expectation, moreover, the newspaper does not contend that “a letter of reference must be reduced to writing by the reference himself or herself’’ to support a denial of access under the Open Records Law.  The newspaper agrees that a record containing a true and fair summary of oral comments concerning past performance or qualifications made by an applicant’s references or former employers, by telephone or in person, can be withheld from the public under the common law balancing test, based on the same public policy that supports Wis. Stat.§§ 19.36(10)(d) and 103.13(6)(b).

The newspaper also agrees with LUHS that the “strong public policy” supporting this exemption is “to allow candid critiques” of applicants, by their former employers, and to “encourage qualified job applicants to apply to work for government entities, such as Lakeland Union High School.” 

The rationale behind the public policy is that employers will be less willing to speak frankly (sometimes negatively) about employees without assurance that their comments will be kept confidential.

Precisely. Nobody disputes a public employer’s right “to maintain a [confidential] process that collects honest comments about a future employee.” The newspaper contends the employer cannot claim this exemption, however, if the recorded comments are not, in fact, “honest.” This exemption and the public policy it is designed to advance assume good faith by both the former employer and the prospective employer in the hiring process. The exemption does not apply if, as alleged here, the prospective employer misrepresents or fabricates the oral comments of an applicant’s references in order to influence the hiring decision. Applying the exemption under those circumstances would only conceal the prospective employer’s misconduct from the public, not any former employer’s “frank comments.”

Wisconsin law encourages employers to provide references for former employees by presuming good faith and providing them immunity “from all civil liability that may result from providing that reference.” The privilege is not absolute, however, and can be overcome if “lack of good faith is shown by clear and convincing evidence.

The same principle must apply here. The Court should find that LUHS cannot claim the exemption provided in Wis. Stat. § 19.36(10)(d), either directly or by application of the common law balancing test, without proving that the record at issue is, in fact, what LUHS claims it is - “prior employers’ evaluations and judgments of Mr. Fortier provided to [LUHS] as part of the hiring process.” If the comments were fabricated, for example, or were not made by Mr. Fortier’s references or former employers, the exemption LUHS claims should not apply -- just as a former employer cannot claim immunity under Wis. Stat. § 895.487(2) if it “knowingly provided false information in the reference,” neither should a public employer be entitled to keep a record secret under Wis. Stat.§ 19.36(10)(d) or the balancing test if the recorded comments are not genuine. In either circumstance, the immunity or exemption is forfeited because the public policy to encourage “candid” employment references is defeated by bad faith in the process.

The record custodian bears the burden of proof in an enforcement action under Wis. Stat. § 19.37(1 )(a), because the Open Records Law must be “construed with a presumption of complete public access.” Wis. Stat. § 19.31; see Fox v. Bock, 149 Wis. 2d 403,417,438 N.W.2d 589 (1989) (“However, if there exists a factual dispute, the custodian has the burden of producing evidence and persuading the finder of fact that the proffered facts are true.”).

II. A GENUINE ISSUE OF 

MATERIAL FACT PRECLUDES 

SUMMARY JUDGMENT

LUHS mistakenly asserts that the following material facts concerning the record at issue are undisputed:

As part of the selection process, the athletic director, Justin Szews, and the principal, James Bouche, conducted a background check of [the two final candidates] by calling references and noting the references’ comments in memoranda. 

Lakeland Union produced [the other records the newspaper requested,] but withheld the memorandum of comments by Fortier’s references.

There is no evidence in the summary judgment record to support these factual assertions by LUHS’s counsel.

LUHS cites its own letter responding to the newspaper’s request in support of these allegations, id., but that letter is not proof that the record contains the actual comments made by former employers of Mr. Fortier concerning his past performance or qualifications for the LUHS coach position. To properly support its motion, LUHS needed to submit an affidavit from someone with personal knowledge of these facts, presumably Mr. Bouche. It is settled law that “statements of fact by counsel in briefs cannot substitute for the affidavits required by sec. 808.08(3).”

WisconsinHosp.Ass’nv.NaturalResourcesBd.,156Wis.2d688,723,457 N.W.2d 879 (Ct. App. 1990).

The Affidavit of Dustin T. Woehl submitted with LUHS’s motion does not cure this fatal deficiency.

If LUHS had properly supported its motion this way, the newspaper would have sought “a continuance to permit affidavits to be obtained or depositions to be taken” to verify the asserted facts and, if supported by the evidence discovered, content or the circumstances surrounding its preparation. He merely attached as an exhibit to his affidavit the newspaper’s complaint which, in turn, attached the LUHS denial letter as an exhibit. Simply attaching that letter as an exhibit to counsel’s affidavit does not render the facts asserted in the letter “admissible in evidence,” however, as the law has always required to support a motion for summary judgment. Wis. Stat. § 802.08(3). The Court should deny LUHS’s summary judgment motion because it is not supported by admissible evidence.

CONCLUSION

The Open Records Law requires more than simply a statement of valid reasons to justify withholding a record from the public. When properly challenged, as in this case, the custodian must submit sufficient evidence for “the trial court [to] make a factual determination supported by the record of whether the documents implicate the public interests in secrecy asserted by the custodians.” Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 162 Wis. 2d 142, 157,469 N.W.2d 68 (1991 ). In other words, the court must be able to determine from admissible evidence whether there is a factual basis for the secrecy concerns asserted by the record custodian. The summary judgment record before this Court contains no such evidence, much less sufficient undisputed evidence, to support that essential element of LUHS’s defense.

The newspaper agrees with LUHS that state law permits it to withhold the record from public inspection if it is, in fact, a “memorandum of comments by Fortier’s references,” as LUHS contends. The district’s bare assertion of this fact does not make it so, however, just as the Supreme Court ruled in a similar case challenging a county’s bare assertion that a requested record was a “draft” properly excluded from public access:

Upon a demand for inspection, the custodian of the document bears the burden of proof of facts demonstrating that it is a draft. The decision that a document is a draft under sec. 19.32(2), Stats., is a legal conclusion. However, if there exists a factual dispute, the custodian has the burden of producing evidence and persuading the finder of fact that the proffered facts are true. The custodian must satisfy the finder of fact by the greater weight of the credible evidence that the document is a draft.

Fox v. Bock, 149 Wis. 2d 403,417,438 N.W.2d 589 (1989) (citation omitted). So it is here. LUHS’s summary judgment motion should be denied because the district has not carried its “burden of producing evidence” sufficient to establish “that the proffered facts [LUHS relies upon as a defense] are true.”

 

THE LAKELAND TIMES and GREGG WALKER,

Plaintiffs,

vs.

LAKELAND UNION HIGH SCHOOL

Defendant

 

Summary Judgment Reply Brief of Lakeland Union High School

Introduction

The newspaper seeks “two pages of negative comments” about Mr. Fortier, a candidate for employment at Lakeland Union, which were distributed to individuals involved in deciding whether to hire him. The newspaper wants to contact the sources of the negative comments to see if they will agree that the document accurately summarizes their comments. Lakeland Union has moved for summary judgment because documents with employee information that are used for staff management planning are exempt from release. The negative comments about Mr. Fortier are clearly staff management planning documents, and also fall within several of the illustrative examples under the exemption, including letters of reference, judgments, ratings, and other comments about an employee.

The newspaper has only responded to one narrow aspect of the argument-the extent to which the comments fit within the letters of reference example. 

The newspaper agrees that the comments of prior employers that are summarized by an authority are analogous to letters of reference. The newspaper argues, however, that the exemption only protects honest, true, accurate, and fair letters of reference. It argues that, before the statute exempts the memorandum from release, Lakeland Union must prove that the memorandum contains what the newspaper variously describes as: the “actual” comments of former employers (Br. p.l); “a true and fair report” of comments that are not “selectively edited” made by those who “could fairly be described as [Mr. Fortier’s] former employer” (Br. p.2); comments that were not “fabricated or embellished” (Br. p.3); “genuine” comments (Br. p.3); a “true and fair summary” of the comments (Br. p.4); “honest comments” (Br. p.4); and information that was recorded in”good faith” (Br. p.S). 

Of course, as the newspaper itself admits, subjecting this memorandum to this “proof” is the very reason they requested the document and brought the lawsuit. (Br. p.l). Under the newspaper’s argument, in order to prevent release of the document, Lakeland Union must first give the newspaper the exact relief it is seeking in the lawsuit-allowing the document to be tested for accuracy and fairness and the documents’ sources interrogated. Under the newspaper’s logic, Lakeland Union must lose to win. Lakeland Union’s “victory” would be purely pyrrhic. 

The newspaper’s argument fails. The application of the exemption does not depend on the accuracy and “fairness” of the summary of the information obtained, or whether the document was “embellished” or edited. Rather, the exemption applies to any document that contains information about an employee and was used by an authority for staff management planning. The newspaper has ignored this fundamental argument, probably because there is no persuasive response. The newspaper’s complaint, by its very allegations, seeks a document with employee information that was used by Lakeland Union in the hiring process. It is exempt.

 

Legal Argument

I. There are no disputed issues of material fact, because the plaintiffs have plead all facts needed to determine that the exemption applies.

A. Factual disputes can defeat summary judgment only if they are material.

To defeat summary judgment, the nonmoving party must demonstrate more than a mere existence of some alleged factual dispute; there must be a genuine issue of material fact. Baxter v. DNR, 165 Wis. 2d 298,312,477 N.W.2d 648 (1991). A factual dispute will not prevent the granting of summary judgment if the facts at issue are “not material to the legal issue on which summary judgment is sought.” Tackes v. Milwaukee Carpenters Health Fund, 164 Wis. 2d 707,711,476 N.W.2d 311 (Ct. App. 1991).

B. The accuracy of the summary is not a material factual issue because the exemption applies regardless of the accuracy of the summary, based on the allegations plead by the newspaper itself.

1. An authority may not release information relating to an employee that is used for staff management planning.

The newspaper addressed only one example within the exemption, and ignored the language of the exemption itself. Under the clear and imperative language of the exemption, an authority “shall not” release any records containing “[i]nformation relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning ...”§ 19.36(10). The exemption provides in pertinent part:

(10) EMPLOYEE PERSONNEL RECORDS. Unless access is specifically authorized or required by statute, an authority shall not provide access under s. 19.35 (1) to records containing the following information ... :

  1. Information relating to one or more specific employees that is used by an authority or by the employer of the employees for staff management planning, including performance evaluations, judgments, or recommendations concerning future salary adjustments or other wage treatments, management bonus plans, promotions, job assignments, letters of reference, or other comments or ratings relating to employees. The newspaper concedes that the document was used for staff management purposes.

Lakeland Union cannot release the document because it contains information relating to Mr. Fortier that was used by Lakeland Union for staff management planning. Lakeland Union raised this argument in its response to the records request and again in its summary judgment. The newspaper has failed to respond at all except by agreeing with Lakeland Union’s legal analysis and trying to raise a fact issue over the accuracy of the summary. The newspaper’s suspicions about how accurately Principal Bouche summarized the information he obtained, however, in no way detract from the fact that the document was used by Lakeland Union for staff management purposes. That remains undisputed. It is also dispositive.

The newspaper also ignores Lakeland Union’s argument that the document falls within other specific examples. within other specific examples. Lakeland Union argued, again without opposition, that the two pages of negative comments qualify as judgments, recommendations, ratings, and other comments about Mr. Fortier. Application of these specific examples, Like the main part of the exemption, is totally independent of the accuracy of the summary or the identity of the sources of the information.

By failing to respond to Lakeland Union’s arguments the newspaper has conceded that the document is one that contains employee information and was used by Lakeland Union for staff management planning. The plaintiffs’ concession is dispositive and the newspaper’s questions are irrelevant to the application of the exemption.

The pleadings prove that the document was used for staff management planning.

The newspaper’s failure to address the actual language is not surprising-the newspaper’s own complaint as well as its open records request describe and seek a document in terms that mirror the type of documents an authority is prohibited from releasing. What the newspaper wants, of course, is to check the accuracy and fairness of a document used in the hiring process-exactly the kind of document that unequivocally cannot be released under the language of the exemption.

It could not be disputed that the newspaper is seeking a staff management planning document. The newspaper alleges that a memorandum of “negative comments” about Mr. Fortier was provided to the citizen committee created by Lakeland Union and charged with interviewing the candidates and making a recommendation for hiring. The newspaper also alleges that the memorandum of negative comments was provided to at least one Lakeland Union school board member in advance of the August 27 meeting.

It defies reason to suggest that this is not information about an employee used by the authority for staff management planning. Indeed, the newspaper’s response brief is premised on the desirability of obtaining this information in order to safeguard the hiring process from being tainted by inaccurate or biased information. It is precisely because the document was used in the hiring process that it is so interesting to the newspaper.

II. The newspaper’s affirmative argument fails because it would frustrate the very purpose of the exemption.

Lakeland Union is entitled to summary judgment dismissing the newspaper’s case because the newspaper has completely ignored Lakeland Union’s well-reasoned argument based on the language of the exemption and the newspaper’s complaint that the document is exempt as a staff management planning document. That should end the analysis because even if the newspaper could successfully defeat one basis of summary judgment, Lakeland Union should still prevail under the bases the newspaper ignores. However, the argument the newspaper does make also fails.

The newspaper’s argument not only ignores the actual exemption, it turns it on its head. The newspaper is trying to obtain a document that was clearly used for staff management planning so the newspaper can evaluate its accuracy and fairness. Yet the newspaper argues that Lakeland Union must somehow prove the document’s accuracy and fairness before the exemption (which would keep the document from being examined) can apply. The plaintiffs’ logic is a circular tautology that would render the exemption meaningless.

The newspaper makes three points to support its position: 1) the open records law generally favors access to records so the public can check-up on public employees, 2) letters of reference1 are protected from disclosure to allow references to be candid (honest) in their evaluations, and 3) in defamation law, reference letters are protected by a qualified privilege. From these premises, the newspaper leaps to the conclusion that the exemption should only apply to letters of reference after they have been examined and proven to be candid and honest. Such a tortured reading of the exemption should not be countenanced. The exemption promotes frank evaluations and comments by shielding documents from scrutiny, not by subjecting them to scrutiny. The exemption prohibits the release of comments about employees to encourage candid comments; it does not, as the newspaper imagines, protect only comments that have been proven to be candid or honest.

A. The plaintiff’s argument is not supported by the general policy behind the open records law.

The newspaper’s reliance on the policy behind the open records law fails because the document falls within an express exemption to the open records law, which serves different policy considerations. As explained in Lakeland Union’s brief, the exemption prohibits an authority from releasing reference letters (and other staff management planning documents), to permit the authors to express themselves candidly and unreservedly about an employee without fear that the comments will be subjected to the scrutiny of the employee or the public. A necessary component of this rule is that the public cannot access the letters to assess whether they are, in fact, accurate and fair. The Legislature has decided that, for staff management planning documents, providing the freedom to make candid comments trumps the public’s ability to scrutinize the comments to judge how candid and honest they appear.

What the newspaper’s argument fails to understand is that the public’s inability to access letters of reference and other staff management planning documents is not some collateral effect of the exemption to be grudgingly tolerated only after the documents have survived a second battery of testing to prove their mettle. Rather, protecting these documents from public scrutiny is the exemption’s raison d’etre. Forcing an authority to prove the honesty, accuracy, or fairness of every staff management planning document defeats the very purpose of the exemption. It is like giving someone privacy to get dressed, but making them prove they are naked before closing the door. It is like granting diplomatic immunity-but only for the innocent. It is backwards.

The plaintiff’s motion to compel exemplifies the newspaper’s inversion of the exemption. The newspaper seeks to have the staff management document disclosed to its attorneys, the court, or a referee. It then wants the sources of the comments to be contacted by lawyers, a judge, or referee who will then presumably question the sources enough  to somehow 11 prove whether the comments are 11 accurate,” “genuine,” “honest,” and with the document being released if its accuracy and fairness cannot be proven.

II The sources would, presumably be asked to acknowledge, corroborate, verify, and affirm those comments, years after they were made, on the record, in an official court proceeding. If the source does not admit that the negative comments in the memorandum are accurately attributed to him or her and does not agree that the summary of comments is fairly edited and unembellished, then, under the newspaper’s plan, the document (with the negative comments attributed to the author) would be released.

The illogic of the newspaper’s argument is also apparent when applied to other parts of the exemption and other exemptions. If a document contains a summary of comments from a confidential informant, must the informant verify the information? Must documents relating to criminal investigations of employees be proven accurate and fair, lest they be released? If Principal Bouche prepared a memorandum outlining his observations and impressions of a candidate for employment after observing the candidate or talking with parents, students, staff, or coworkers, would Lakeland Union have to defend the document by proving that the observations, recollections, and impressions are all accurate, honest, and fair before the clear statutory exemption applies? Must the author of a written letter of reference always be contacted to verify the contents and authenticity of the letter, which itself could be fabricated or doctored? It cannot be. Such a Kafkaesque procedure in which documents must be scrutinized to avoid scrutiny and sources are interrogated to prove the accuracy of information that was given the expectation that it would remain confidential can scarcely be said to promote frank and candid comments and evaluations.

B. The plaintiffs’ argument is not supported by defamation law.

The newspaper’s preferred procedure is not in the language of the exemption or case law interpreting it. The newspaper therefore turns to defamation law, which, it notes, provides letters of reference a qualified privilege, which can be overcome by a clear and convincing showing that the letters were not in good faith. (Br. p.5). Then, without any explanation, analysis, or argument, the newspaper dogmatically decalres that: “The same principle must apply here.”

Why? This is not a defamation action. The newspaper offers absolutely no reasoned analysis why this Court should graft the methodology from§ 895.487(2) on to§ 19.36(10)(d). One very good reason not to do so is the actual text of the statute §19.36(10)(d) contains neither a privilege nor a bad faith exception to the privilege. The Legislature very well could have provided that documents prepared in bad faith, inaccurate documents, or unfair documents do not qualify under the exemption. The Legislature chose not to. Probably because such an exception would contradict the very nature of the exemption, as argued above. The fact that the Legislature chose different procedures for these different laws should be respected, and this Court should reject the newspaper’s unsupported invitation to indiscriminately mix and match statutes.

  1. The newspaper’s argument is not supported by the burden of proof cases it cites.

The newspaper cites the general burden of proof for disputed facts in open records cases. However, as we have seen, the newspaper has plead all necessary facts in its complaint. There are, therefore, no material facts at issue which need to be proved. The newspaper has crafted its request such that any document that is responsive is also exempt. Furthermore, none of the cases the newspaper cites require the extraordinary result it seeks here-requiring an authority to prove the very thing the plaintiff seeks in order to keep the documents confidential under an exemption.

The cases are distinguishable. Mayfair Chrysler-Plymouth v. Baldarotta, 162 Wis.2d 142, 157,469 N.W.2d 68 (1991) addressed the balancing test, not an express exemption. Under the balancing test, the trial court must determine whether the documents at issue implicate the public interests in secrecy asserted by the custodians. In doing so, the court needs enough information about the documents to analyze the extent to which they implicate interests in secrecy and to then balance those interests with the public’s interest in release. In this case, however, the Legislature has already done the balancing and has determined that documents of the type at issue here- staff management planning documents with information about an employee-must not be released. The only facts that matter, then, are those necessary to determine whether the document falls within the class of documents in the exemption. Plaintiffs have plead those facts.

Fox v. Block is not on point. In that case, the authority withheld a document prepared by a consultant and stamped: I I draft.” The Court held that, as a matter of law, an exempt draft must be a document prepared for the author’s own use. The document in Fox was prepared by a consultant for the use of the authority, so it was not a draft. Not surprisingly, the Court held that the authority would have had to show facts bringing the document into the legal definition of I I draft” (i.e. prepared for the author’s own use) to take advantage of the exception. The newspaper has plead all facts necessary for this Court to apply the exception and has also failed to respond to Lakeland Union’s argument. Fox presents no obstacle to application of the exemption on summary judgment.

 

Conclusion

This Court should reject the newspaper’s attempt to manufacture a material factual dispute to obtain indirectly through discovery what it cannot legally obtain at the conclusion of this case. The exemption applies because the newspaper itself has defined the document it seeks as one that falls within the exemption for staff management planning documents. Beyond that, the accuracy of the contents of the document is irrelevant to the summary judgment analysis. Any other result would defeat the purpose of the exemption.

 

THE LAKELAND TIMES and

GREGG WALKER, Plaintiffs,

v.

LAKELAND UNION HIGH SCHOOL,

Defendant.

 

NOTICE OF MOTION AND 

PLAINTIFFS’ MOTION 

TO COMPEL DISCOVERY 

OR APPOINT A REFEREE 

 

PLEASE TAKE NOTICE that the plaintiffs will bring the following motion for hearing at a date and time to be set by the court.

MOTION

The plaintiffs (“the newspaper”), by their counsel, move the court under Wis. Stat. § 804.12 for an order compelling discovery, subject to an appropriate protective order, to determine whether the comments contained in the record at issue are genuine or, alternatively, for an order under Wis. Stat. § 805.06, for an order appointing a referee to investigate that issue and report to the court.

The newspapers’ motion is supported by the Affidavit of Gregg Walker  the Plaintiffs’ Brief in Opposition to Defendant’s Motion for Summary Judgment and the entire record in this action. In support of their motion, the newspaper states that:

  1. The newspaper served a series of interrogatories on LUHS that were intended to elicit background information about the hiring process LUHS used to fill the boys ‘ basketball head coach position in 2012. In particular, Interrogatory No.3 sought the identity of each “prior employer” of Rich Fortier LUHS contacted for comment concerning his application for that position. The newspaper sought those identities to enable them to contact the prior employers and verify LUHS ‘ s representations concerning the record at issue in this action.
  2. LUHS objected and refused to answer any of the plaintiffs’ interrogatories. A copy of defendant’s answers to plaintiffs’ first set of interrogatories, which restates each interrogatory along with the asserted basis for LUHS’s objection, is attached as Exhibit A.
  3. Counsel for the parties conferred in good faith but were not able to resolve their discovery dispute.
  4. The newspaper proposed that its counsel be provided access to the record at issue, subject to a protective order that would maintain the confidentiality of that record pending the final determination of this action, as authorized in any open records enforcement action under Wis. Stat. § 19.37(1)(a):

The requestor may bring an action for mandamus asking a court to order release of the record. The court may permit the parties or their attorneys to have access to the requested record under restrictions or protective orders as the court deems appropriate.

See, e.g., Milwaukee Journal v. Call, 153 Wis. 2d 313,319-21,450 N.W.2d 515 (Ct. App. 1989). The newspaper further proposed that the parties’ counsel jointly contact the sources whose comments are included in the record at issue, or proceed formally by subpoena for deposition, to verify whether the record contains “honest comments” as LUHS contends. The newspaper proposed to voluntarily dismiss this action, with prejudice, if this process established that the recorded comments were genuine. LUHS declined this proposal.

5. The newspaper also proposed, in the alternative, that LUHS join it in requesting that the court appoint a referee to investigate whether the comments contained in the record at issue are genuine and report its determination to the court, again subject to an appropriate protective order. See Wis. Stat. § 805.06. The Supreme Court recently noted that a referee may be appointed under this statute “to assist the court in obtaining facts and arriving at a correct result in complicated litigation.” Ehlinger v. Hauser, 2010 WI 54, [ 76,325 Wis. 2d 287, 785 N.W.2d 328. While this case is not particularly complicated, there must be some process established for “obtaining facts and arriving at a correct result.” Id. LUHS declined this proposal as well.

  1. The information the newspaper seeks through discovery under a protective order or by appointment of a referee is relevant to the subject matter involved in this action and is reasonably calculated to lead to the discovery of admissible evidence. See Wis. Stat. §804.01(2)(a). LUHS cannot prevail without admissible evidence supporting its claimed exemption and the newspaper is entitled to test that evidence under the rules of civil procedure. See, e.g., Sands v. Whitnall Sch. Dist. , 2008 WI 89, ~ 18,312 Wis. 2d I, 754 N.W.2d 439 (“The right to discovery is an essential element of our adversary system.”).

7. LUHS has not explained why it contends the identifies of the “former employers” it contacted for comment are properly kept secret under Wisconsin law. Wis. Stat. § 19.36(1 0)(d) requires that “letters of reference” be kept from the public, but not the names of those who provide them. Accordingly, LUHS properly disclosed the names of he references Fortier submitted with his application. With this information, the newspaper was able to determine that, contrary to the representation in LUHS’s summary judgment brief (“[LUHS] ... withheld the memorandum of the comments by Fortier’s references,” page 2), none of them was actually contacted or provided any comments beyond the letter of reference each submitted to LUHS at Fortier’s request. LUHS’s refusal to identify the “former employers” it claims provided the comments contained in the record at issue, by contrast, prevents the newspaper from learning whether they were even called by LUHS.

8. The newspaper’s reasons for questioning the legitimacy of LUHS’s representations concerning the contents of and sources for the record at issue are set forth in the Affidavit of Gregg Walker, and have been reported, without contradiction, in The Lakeland Times. LUHS has told the public that its “goal is to maintain a process that collects honest comments about a future employee,” but LUHS has refused to endorse any process for discovering the factual basis for that assertion. This Court should reject any argument that LUHS need not prove the record at issue contains “honest comments” by Mr. Fortier’s former employers or that the newspaper is not entitled to verify that claim, through discovery or the appointment of a referee, subject to an appropriate protective order.

WHEREFORE, the court should grant the newspapers’ motion and order LUHS to:

Submit the record at issue to the court, for in camera inspection, and to the newspaper’s counsel, under Wis. Stat.§ 19.37(1)(a), subject to an “attorneys’ eyes only” protective order that prohibits disclosure of the record’s contents to anyone, including Mr. Walker and anyone else at the newspaper, except to ask each source to verify authenticity of the recorded comments attributed to that source, pending the final determination of this action.

The newspaper understands that Walker’s statements concerning his interviews of these men are hearsay and not admissible for their truth. The court should find the newspapers’ submissions are sufficient, however, to justify discovery of the material facts at issue in this case. Only LUHS knows who Mr. Bouche contacted for comment, after all, and the newspaper should not have to obtain sworn testimony from people who were not contacted to obtain the discovery it seeks.

Identify the source of each comment included in that record, if the source is not named in the record, to enable the newspapers’ counsel in cooperation with counsel for LUHS to confidentially verify with each source whether the source is a former employer of Rich Fortier and whether the source made the comments attributed to that source in the record at issue. 

  1. In the alternative, the court should appoint a referee to confidentially investigate and report to the court factual findings concerning whether the comments included in the record at issue were made by the source to whom they are attributed and whether each source is a former employer of Rich Fortier. The order of reference should require that the record of the investigation and the referee’s findings be provided to the newspapers’ counsel, subject to an “attorneys’ eyes only protective order” as described above, but otherwise remain confidential pending the final determination of this action.

THE LAKELAND TIMES and GREGG WALKER,

Plaintiffs,

vs.

LAKELAND UNION HIGH SCHOOL

Defendant.

CIRCUIT COURT

VILAS COUNTY

 

Lakeland Union High School’s Brief

In Response To Plaintiffs’ Motion To Compel

 

The newspaper’s motion to compel should be denied for the reasons set forth in Lakeland Union’s summary judgment submissions. The newspaper’s open records request and complaint clearly and conclusively demonstrate that the document they seek can only be exempt. The newspaper seeks two pages of negative comments about a candidate for employment, which was used in deciding whether to hire him. The document, by its very nature, fits squarely within the exemption for staff management planning documents. Summary judgment is, therefore, proper without regard to any additional facts.

Because the document, as described by the newspaper in its own compliant, is a staff management planning document and is exempt from disclosure, any additional information about it is irrelevant and is not a proper subject for discovery. The newspaper’s discovery request simply cannot be reasonably calculated to lead to the discovery of admissible evidence because nothing about the documents or their sources would be relevant or admissible because it could not affect the document’s status as exempt under the statute. Because the document is exempt under the facts plead by the plaintiff and the clear language of the exemption, the plaintiffs’ case should be dismissed without allowing them any additional and unwarranted opportunities to probe the document, its sources, or its preparation. It is entitled to none of that information.

The newspaper’s motion to compel is a brazen attempt to obtain through discovery the very relief it seeks in this lawsuit even though release of the document is unambiguously and categorically prohibited by statute. The motion to compel attempts to make an end-run around this clear statutory exemption by focusing on a procedure for scrutinizing the accuracy of the document, rather than getting a copy of the document itself into Mr. Walker’s hands. This is a distinction without a difference.

The procedure espoused by the newspaper would give the newspaper everything it seeks in this litigation. The newspaper does not want a copy of the document just for the sake of having it. Rather, the newspaper wants the document probed and its sources interrogated. That is exactly the “discovery” procedure the newspaper is seeking- to have the lawyers or the court or a referee1 examine the document and then interrogate the sources.  The newspaper very likely does not mind whether it performs its investigation through its editor or through its lawyer or a referee. This is a win/win for the plaintiffs: if the lawyers, court, or referee interrogate the sources and the verisimilitude of the summary cannot be proven (it is not clear how accurate the summary must be to appease the plaintiffs) then the documents are released and the plaintiff wins. If the documents pass muster, then the plaintiffs would not have wanted them anyway.

As the newspaper acknowledges, § 805.06 does not authorize a referee to act as a special prosecutor by taking over an investigation, issuing subpoenas, etc. As the plaintiffs also recognize, this issue is not very complex so as to require a referee.

A procedure that gives the plaintiff the relief it seeks under the guise of discovery should not be countenanced. Even more so when the information the plaintiff seeks is irrelevant and the document the plaintiff seeks to probe (itself or through a lawyer or referee) is exempt from disclosure.

Not only would the plaintiffs’ procedure give the plaintiffs everything they seek in this lawsuit, it would also violate the exemption. The very fact that persons who contributed information to this staff management planning document would be contacted, whether it be by the court, the attorneys, or a referee, would be contrary to the language of the exemption. The Legislature did not include in the exemption any provision for disclosure to members of the public, which would include the persons supplying the information. Neither does the statute allow the public to use the exempt documents and the information in them (even without seeing them) to conduct an investigation into how the documents were prepared.

Contacting the people who provided information for the document would also defeat the purpose of the exemption by subjecting the sources to scrutiny and disclosure when the purpose of the exemption was to encourage candid and frank comments and evaluations by protecting the information from disclosure. 

If there is any member of the public who should not be interrogated about the documents and the information contained in the documents, it is the sources of the information. Prior employees and other persons with information to contribute to staff management planning documents will be less likely to contribute freely and candidly if they know they might get a call (or subpoena), possibly years later, from the employee’s attorney, a judge, or a referee asking them pointed questions about the document and their comments.

The plaintiffs’ procedure would be problematic for other reasons. It would increase the possibility of inadvertent disclosure. For that reason, the plaintiffs’ attorney should not be allowed access to the document. The court has the discretion to preclude plaintiffs’ attorney from any in camera review of the documents. Even assuming good faith by the plaintiffs’ attorney, which we do, the court of appeals has recognized that every additional exposure of the document at issue increases the possibility of inadvertent disclosure, and that a trial court may prevent the plaintiff’s attorney from participating in any in camera review. Milwaukee Journal v. Call, 153 Wis. 2d 313, 450 N.W.2d 515 (Ct. App. 1989). The danger of inadvertent disclosure is heightened under the newspaper’s proposal because much of the contents of the document, if not the document itself, would be disclosed to the referee and would also be disclosed to the sources, not to mention the possibility that Mr. Fortier might have some right to object to this disclosure or monitor the plaintiffs’ proposed interrogation verification process.

Even in camera review is unnecessary in this case because the factual issues raised by the plaintiffs are immaterial to the application of the exemption. All the Court needs before it to decide this case is the complaint and the exemption. To the extent the plaintiffs are able to persuade this Court to review the documents or have a referee review them and perform an investigation of their sources to make some determination as to their accuracy or their content, the plaintiffs would have obtained at least part, if not all, of what they seek in this lawsuit. Because the document they seek, by their own description, is exempt, any information they obtain, even indirectly through an in camera review, about the document would be an unwarranted windfall and contrary to the purpose and language of the exemption.

This Court should reject the newspaper’s attempt to make an end-run around the exemption and investigate the exempt document and the circumstances surrounding its creation through the discovery process. The plaintiffs’ motion to compel should be denied and Lakeland Union’s motion for summary judgment should be granted.

THE LAKELAND TIMES and

GREGG WALKER, Plaintiffs,

v.

LAKELAND UNION HIGH SCHOOL

Defendant.

 

REPLY BRIEF IN SUPPORT

OF PLAINTIFFS’ MOTION TO COMPEL DISCOVERY

 

Lakeland Union High School expects this Court to accept, without proof, its representation that the record at issue “fits squarely within the exemption for staff management planning documents.” LUHS Brief in Response to Plaintiffs Motion to Compel, p. 1. LUHS asks the Court to deny the newspaper any discovery by claiming that it is entitled to summary judgment “without regard to any additional facts” and arguing that any inquiry about “the document, its sources, or its preparation,” would somehow “give the newspaper everything it seeks in this litigation.” Wisconsin law supports neither assertion.

LUHS contends it is entitled to summary judgment, and consequently opposes discovery by any method, because the newspaper’s request and its complaint in this action described the record at issue as “two pages of negative comments about a candidate for employment.” 

LUHS ignores that this description of the document is based entirely on the defendant’s own representations in the letter denying the newspaper’s request, and on the comments of a school board member at a public meeting. The newspaper has no personal knowledge of the record’s contents, its sources or the circumstances surrounding its preparation. Accordingly, the newspaper’s description of the record based on these outside sources is not admissible as an admission by party opponent under Wis. Stat. § 908.01 (4)(b). See, e.g., State v. Rogers, 196 Wis. 2d 817, 830 539 N.W.2d 897 (Ct. App. 1995) (to qualify as an adoptive admission, “[t]here must be sufficient facts which would enable a jury reasonably to conclude that the [newspaper] intended to adopt the declarant’s statements.”) (citations omitted). There are no facts in the record before this Court to support the conclusion that the newspaper intended to admit that the record at issue contains actual comments by Mr. Fortier’s former employers about his past performance and qualifications for the LUHS head coach position.

It is telling that LUHS based its summary judgment motion on the facts asserted in its own denial letter, not on any supposed “admission” in the newspaper’s public records request or its complaint in this action. LUHS did not even mention the newspaper’s alleged “admission” until the newspaper’s response noted the complete lack of admissible evidence to support the factual representations LUHS made in its summary judgment brief about the record’s content, sources and preparation. LUHS completely ignores, moreover, the newspaper’s allegation that the record at issue does not, in fact, “represent a true and fair report of the comments of Mr. Fortier’s prior employers,” contrary to the representation in LUHS’s denial letter, a material factual allegation that LUHS has flatly denied.

There is no basis for LUHS’s claim that allowing discovery of the material facts would somehow reward the newspaper or intimidate the sources whose comments were allegedly recorded. Wisconsin courts are frequently required to fashion discovery and proof processes to determine the applicability of evidentiary privileges while maintaining the confidentiality of the disputed records. Even the owner of a trade secret must submit to discovery and provide proof to support the claim:

In an action under this section, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting a protective order in a discovery proceeding, holding an in camera hearing, sealing the record of the action and ordering any person involved in the action not to disclose an alleged trade secret without prior court approval.

LUHS has not right to greater protection in this action.

The court can fashion a discovery process that uncovers the facts without exposing LUHS’s alleged sources to public scrutiny. Requiring them to verify their status as Mr. Fortier’s former employer and that they actually made the comments included in the document would not “defeat the purpose of the exemption,” as LUHS claims. LUHS has publicly disclosed, in its response to the newspaper’s request and by the Board member statement in public session, that “negative comments” were compiled about Mr. Fortier. To verify that this is true through a referee or discovery under a protective order would not expose the sources’ identities or comments to the public. If the court-ordered process determines this is not true, however, there would be no basis for keeping confidential the document or the evidence discovered.

CONCLUSION

The exemption LUHS claims cannot be established by ipse dixit. The record is presumed to be public under Wis. Stat. § 19.31 and that presumption can only be overcome by evidence establishing a claimed exemption. See, e.g., Wis. Stat. § 903.01. No exemption can be established without proof by admissible evidence and, where confidentiality must be maintained pending discovery and presentation of the relevant evidence, the law provides ample authority to do so by discovery under protective order,  submission to the court for in camera review and through use of a referee. The Court should grant the newspaper’s motion to compel  discovery and enter a protective order to maintain, pending a final order, the confidentiality of the facts discovered concerning the document’s contents, sources and preparation, whether those facts are gathered by the parties’ counsel or by a referee.





Related Links:
• Dr. Gabert's letter to The Lakeland Times
• Lakeland Times' response to Dr. Gabert's letter





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