2018 WI 11
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP2214
COMPLETE TITLE: Madison Teachers, Inc.,
Plaintiff-Respondent,
v.
James R. Scott, Chairman and Records Custodian,
Wisconsin Employment Relations Commission,
Defendant-Appellant.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: February 6, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 5, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Peter Anderson
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant, there were briefs (in the
court of appeals) filed by Steven C. Kilpatrick, assistant
attorney general, and Brad D. Schimel, attorney general. There
was an oral argument by Steven C. Kilpatrick.
For the plaintiff-respondent, there was a brief (in the
court of appeals) filed by Susan M. Crawford and Pines Bach LLP,
Madison. There was an oral argument by Susan M. Crawford.
An amicus curiae brief was filed on behalf of the Wisconsin
Freedom of Information Council, the Wisconsin Newspaper
Association, and the Wisconsin Broadcasters Association by
Dustin B. Brown, James A. Friedman, and Godfrey & Kahn, S.C.,
Madison.
2
2018 WI 11
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP2214
(L.C. No. 2015CV3062)
STATE OF WISCONSIN : IN SUPREME COURT
Madison Teachers, Inc.,
Plaintiff-Respondent,
FILED
v. FEB 6, 2018
James R. Scott, Chairman and Records Custodian, Diane M. Fremgen
Acting Clerk of Supreme
Wisconsin Employment Relations Commission, Court
Defendant-Appellant
APPEAL from an order of the Circuit Court for Dane County.
Reversed.
¶1 PATIENCE DRAKE ROGGENSACK, C.J. This case comes
before us on a bypass petition filed by the records custodian
and chairman of the Wisconsin Employment Relations Commission
("WERC"), James R. Scott. Scott appeals a decision of the
circuit court1 that granted summary judgment to Madison Teachers,
Inc. ("MTI") on its claim that the public records law was
violated.2 The circuit court also awarded MTI statutory damages,
attorneys fees and costs.
1
The Honorable Peter C. Anderson of Dane County presided.
2
See Wis. Stat. § 19.37(1)(a) (2015-16). All further
(continued)
No. 2016AP2214
¶2 MTI had made repeated requests, at various times
during the 2015 certification elections, for names of Madison
Metropolitan School District (the "School District") employees
who had voted as of those dates. WERC denied MTI's requests
based on Scott's determination that while this election was
ongoing, the public interest that elections remain free from
voter intimidation and coercion outweighed the public interest
in favor of openness of public records.
¶3 One issue is presented in this appeal: whether the
public interest that elections remain free from voter
intimidation and coercion in this certification election is
sufficient to outweigh the public interest in favor of openness
of public records. Because we conclude that Scott lawfully
performed the balancing test in concluding that the public
interest in elections free from voter intimidation and coercion
outweighs the public interest in favor of openness of public
records, we reverse the circuit court. Accordingly, no
attorneys fees are due MTI under the provisions of Wis. Stat.
§ 19.37(2).
I. BACKGROUND
¶4 From November 4 through November 24, 2015, WERC
conducted the annual certification election for collective
bargaining representatives of the School District's employees
references to Wisconsin statutes are to the 2015-16 version
unless otherwise noted.
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No. 2016AP2214
pursuant to Wis. Stat. § 111.70(4)(d)3.b.3 WERC contracted with
the American Arbitration Association (the "Association") to
provide technological services necessary to conduct the
election.4 With the Association's support, voting occurred via
telephone and internet for 20 days, and the Association
electronically maintained data for votes that were cast.
According to the contract between WERC and the Association, the
3
Wisconsin Stat. § 111.70(4)(d)3.b. states:
Annually, the commission shall conduct an election to
certify the representative of the collective
bargaining unit that contains a general municipal
employee. The election shall occur no later than
December 1 for a collective bargaining unit containing
school district employees and no later than May 1 for
a collective bargaining unit containing general
municipal employees who are not school district
employees. The commission shall certify any
representative that receives at least 51 percent of
the votes of all of the general municipal employees in
the collective bargaining unit. If no representative
receives at least 51 percent of the votes of all of
the general municipal employees in the collective
bargaining unit, at the expiration of the collective
bargaining agreement, the commission shall decertify
the current representative and the general municipal
employees shall be nonrepresented. Notwithstanding
sub. (2), if a representative is decertified under
this subd. 3.b., the affected general municipal
employees may not be included in a substantially
similar collective bargaining unit for 12 months from
the date of decertification. The commission shall
assess and collect a certification fee for each
election conducted under this subd. 3.b. Fees
collected under this subd. 3.b. shall be credited to
the appropriation account under s. 20.425(1)(i).
4
In total, there were 301 union certification elections in
November 2015, involving nearly 60,000 municipal employees.
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No. 2016AP2214
Association was required to email election results to WERC no
later than one business day after the election concluded.
¶5 Notably, under Wis. Stat. § 111.70(4)(d)3.b., in order
to be certified as the elected representative of the bargaining
unit, a labor organization must receive the votes of at least 51
percent of the total number of employees in the bargaining unit.
Therefore, a non-vote in the election is for all intents and
purposes a "no" vote. Pursuant to § 111.70(1)(e), certification
elections are conducted by secret ballot.
¶6 One week prior to the start of the certification
election, MTI wrote to Scott stating that it intended to submit
requests pursuant to Wis. Stat. § 19.35(1) for records of the
names of the School District's employees who had voted at
specific points during the election. MTI wrote that it
"wish[ed] to assure you that MTI will not engage in voter
coercion or any other illegal election practices during the
upcoming election. MTI is fully committed to exercising its
First Amendment and statutory rights within the law."
¶7 On November 10, 2015, MTI submitted the first of its
requests, seeking names of employees, by bargaining unit, who
had voted as of that date. MTI requested that the records be
delivered "as soon as possible, but not later than 5:00 p.m.,
November 16." On November 16, 2015, Scott advised MTI in
writing that its request was denied for three reasons: first,
because WERC utilized the Association, a third-party vendor to
collect votes, the Commission did not possess the requested
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No. 2016AP2214
documents; second, because the annual certification election is
conducted by secret ballot, disclosure of the names of employees
who had voted would violate the secrecy of the ballot; and
third, because the common law balancing test weighed in favor of
"maintaining the secrecy of the ballot and of avoiding the
potential for voter coercion while balloting is ongoing . . . ."
Scott was aware of a complaint submitted to WERC by the Racine
Unified School District, alleging that voters had been coerced
and harassed into voting during the 2014 annual certification
elections.5
¶8 MTI submitted a second request on November 17, 2015,
for names of employees, by bargaining unit, who had voted as of
that date. MTI requested that Scott respond "as soon as
possible, but not later than 5:00 p.m., November 20." This
request was also denied in writing on November 30, 2015.
¶9 The election ended at noon on November 24, 2015. At
3:26 p.m. on that day, MTI submitted a third request to WERC,
requesting names of all employees who had voted in the
certification election. WERC provided those names, by
bargaining unit, at 12:37 p.m. the following day, November 25.
5
An affidavit subsequently filed in this action revealed
that Scott was aware that the Racine Unified School District had
filed a complaint alleging union representatives had approached
three teachers, asked if they had voted in the certification
election, and urged them to vote immediately in the
representative's presence using the representative's laptop.
The complaint was dismissed without investigation because the
conduct, even if substantiated, would not have affected the
outcome of the election.
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No. 2016AP2214
Scott concluded that the public interest in maintaining openness
of public records was satisfied by disclosing the requested
lists immediately after the elections were over.
¶10 On November 30, 2015, MTI filed a complaint pursuant
to Wis. Stat. § 19.37(1)(a),6 seeking an order for mandamus,
punitive damages, attorneys fees and costs, based on Scott's
refusal to release voting records in response to MTI's November
10 and November 17 requests. On December 1, 2015, MTI filed an
ex parte motion, citing Wis. Stat. § 801.02(5), for an order
shortening the time for filing an answer or other responsive
pleadings from 45 days to 20 days. The circuit court granted
the ex parte motion on December 3.7 On December 4, 2015, MTI
served the complaint, its ex parte motion and the resulting
order on Scott.
6
Wisconsin Stat. § 19.37(1)(a) states:
Enforcement and penalties. (1) Mandamus. If an
authority withholds a record or a part of a record or
delays granting access to a record or part of a record
after a written request for disclosure is made, the
requester may pursue either, or both, of the
alternatives under pars. (a) and (b).
(a) The requester 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.
7
The Honorable Juan B. Colas of Dane County presided.
Scott filed a judicial substitution request on December 8, 2015,
and on December 11, 2015, the Honorable Peter C. Anderson was
appointed.
6
No. 2016AP2214
¶11 On December 11, 2015, Scott filed a motion and
supporting brief to reconsider and vacate the court's December 3
order. A hearing was conducted on December 15, at which the
court granted Scott 45 days to answer. Scott timely answered.
¶12 On December 22, 2015, WERC's legal counsel, Peter
Davis, emailed the Association, stating: "Whenever convenient
can you tell me if it [is] still possible to identify who had
voted as of noon Nov 10 and noon Nov 17 in the various Madison
Schools/Madison Teachers units. If it is possible, can you send
me that info[] unit by unit[?]" The Association provided those
records to WERC, which WERC provided to MTI during discovery.
¶13 MTI and Scott filed cross-motions for summary
judgment. Scott argued, among other things, that the public
interest in non-disclosure of the names of those who had voted
when the election was ongoing outweighed the public interest in
disclosure at that time and therefore, MTI did not have a legal
right to the records it sought. Meanwhile, MTI argued that
Scott failed to overcome the strong presumption in favor of
openness of public records. Upon completion of briefing, the
court granted MTI's motion and denied Scott's.
¶14 At the hearing on summary judgment, MTI also sought
punitive damages, costs, and attorneys fees. A second hearing
was held on these issues, and the court modified its previous
order denying punitive damages and granting MTI $100.00
statutory damages, $41,462.50 attorney fees and $301.35 costs.
7
No. 2016AP2214
¶15 Scott appealed and, following initial briefing, Scott
petitioned for bypass, which we granted. We now reverse the
circuit court.
II. DISCUSSION
A. Standard of Review
¶16 We review a record custodian's decision to deny a
public records request independently. It is the duty of the
records custodian to specify the reasons for not disclosing a
public record, and we decide whether those reasons outweigh the
public interest in disclosure as a matter of law. See
Democratic Party of Wis. v. DOJ, 2016 WI 100, ¶9, 372 Wis. 2d
460, 888 N.W.2d 584. When a records custodian employs a
balancing test, it is the custodian's burden to show that the
public interest favoring denial of the requested record
outweighs the public interest favoring disclosure. Id. (citing
John K. MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014
WI App 49, ¶14, 354 Wis. 2d 61, 848 N.W.2d 862).
B. Public Records Law
¶17 Wisconsin's public records law is set forth in Wis.
Stat. § 19.31, et seq. Wisconsin's public records law requires
that, absent a statutory, common law or overriding public
interest in denying access, the public has the right "to inspect
certain documents within the possession of a state entity."
Voces De La Frontera v. Clarke, 2017 WI 16, ¶17, 373 Wis. 2d
348, 891 N.W.2d 803. The public records law "serves one of the
basic tenets of our democratic system by providing an
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No. 2016AP2214
opportunity for public oversight of the workings of government."
Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428 (1996)
(citing Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 433-34, 279
N.W.2d 179 (1979)). When evaluating a public records request,
we keep in mind that Wisconsin has a "presumption of open access
to public records." Osborn v. Bd. of Regents of Univ. of Wis.
Sys., 2002 WI 83, ¶13, 254 Wis. 2d 266, 647 N.W.2d 158 (citing
Hathaway v. Green Bay Sch. Dist., 116 Wis. 2d 388, 397, 342
N.W.2d 682 (1984)); see also Wis. Stat. § 19.31 (providing that
"it is . . . 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."); cf. Leann Holcomb & James
Isaac, Comment, Wisconsin's Public Records Law: Preserving the
Presumption of Complete Public Access in the Age of Electronic
Records, 2008 Wis. L. Rev. 3, 515.
¶18 The public's right to access public records is very
strong, but it is not unrestricted. Voces De La Frontera, 373
Wis. 2d 348, ¶18. "The strong presumption of public access may
give way to statutory or specified common law exceptions, or if
there is an overriding public interest in keeping the public
record confidential." Kroeplin v. DNR, 2006 WI App 227, ¶13,
297 Wis. 2d 254, 725 N.W.2d 286 (citation omitted); see also
Hathaway, 116 Wis. 2d at 397 ("[T]he general presumption of our
law is that public records shall be open to the public unless
there is a clear statutory exception, unless there exists a
9
No. 2016AP2214
limitation under the common law, or unless there is an
overriding public interest in keeping the public record
confidential.").8 In other words, "[b]ecause the denial of
public access is generally contrary to the public interest,"
access may be denied only in limited circumstances. Kroeplin,
297 Wis. 2d 254, ¶12 (citing Kailin v. Rainwater, 226 Wis. 2d
134, 142, 593 N.W.2d 865 (Ct. App. 1999)).
¶19 In determining whether there is an overriding public
interest in keeping a requested record confidential when there
is no statutory exception to provision of the record, the record
custodian balances competing public interests that bear on the
release of the requested record. Milwaukee Journal Sentinel v.
DOA, 2009 WI 79, ¶¶55-56, 319 Wis. 2d 439, 768 N.W.2d 700. That
is, the custodian balances the public interest in nondisclosure
against the public interest in disclosure. Id., ¶55. The
balance is accomplished through a case-by-case analysis.
Because the interests asserted in denying disclosure are
discrete to each case, "blanket exceptions from release"
generally are not forthcoming. Id., ¶56. Stated otherwise,
"the custodian must determine whether the surrounding factual
circumstances create an 'exceptional case' not governed by the
8
The legislature has codified some of the public records
that are subject to public inspection and some that are
statutorily exempt. To that end, Wis. Stat. § 19.36 lists
thirteen statutory exemptions, none of which are applicable
here.
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No. 2016AP2214
strong presumption of openness." Hempel v. City of Baraboo,
2005 WI 120, ¶63, 284 Wis. 2d 162, 699 N.W.2d 551.
¶20 The public interest balancing test considers "whether
disclosure would cause public harm to the degree that the
presumption of openness [of public records] is overcome."
Democratic Party of Wis., 372 Wis. 2d 460, ¶11; see also Osborn,
254 Wis. 2d 266, ¶15.
C. Secret Ballot Elections
1. General principles
¶21 As a general matter, voting may occur by voice
acclamation, the raising of hands in a meeting or by secret
ballot, depending on the statutory directive or lack thereof.
In regard to the matter before us, Wis. Stat. § 111.70(1)(e)
requires that certification elections be conducted by secret
ballot.
¶22 All 50 states have employed the secret ballot method
of voting to limit voter intimidation during elections. Burson
v. Freeman, 504 U.S. 191, 206 (1992). As explained in Burson,
the history of election regulation in the United States shows
that voter intimidation and coercion are long-standing evils
that election regulations sought to prevent. Id.
¶23 The right to vote in certification elections is a
statutory right; yet, Burson is instructive in the matter before
us because of its exposition of the policies that underlie the
use of secret ballots. In Burson, a political party worker
sought to enjoin enforcement of Tennessee statutes that
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No. 2016AP2214
prohibited solicitation of votes and display of campaign
materials within 100 feet of entrances to polling places on
election day. Id. at 193-94. The party worker claimed that the
statutory regulation violated her right to communicate with
voters, in contravention of her First Amendment rights. Id. at
194-95. Tennessee contended that its statutes were narrowly
drawn to serve compelling state interests of preventing voter
harassment and intimidation. Id. Further, Tennessee contended
that the campaign-free zone "protects the right to vote in an
election conducted with integrity and reliability." Id. at 199.
¶24 In concluding that the Tennessee statute was
constitutional, even though it was not a content-neutral
regulation of speech, the Supreme Court reviewed the history of
the secret ballot method of voting in the United States and how
it has had an immediate and positive effect in limiting
intimidation and coercion of voters. Id. at 202-06. The Court
concluded by explaining that the contest over Tennessee's
election regulation involved "the exercise of free speech rights
[in] conflict[] with another fundamental right, the right to
cast a ballot in an election free from the taint of intimidation
and fraud." Id. at 211. On balance, the Court said that
removing the opportunity for intimidation of voters must
prevail. Id.
2. Certification elections
¶25 2011 Wisconsin Act 10 made various changes to
collective bargaining for most public employees. Act 10
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No. 2016AP2214
requires annual certification elections, which are administered
by WERC. Wis. Stat. § 111.70(1)(c) and (e). Prior to Act 10,
collective bargaining units for municipal employees also were
established through WERC's recognition of employee votes. See
Madison Teachers, Inc. v. Walker, 2014 WI 99, ¶19, 358 Wis. 2d
1, 851 N.W.2d 337. Before Act 10, members of a collective
bargaining unit were allowed to select a labor organization as
their representative when a majority of the votes cast were for
a particular labor organization, even when those votes were not
equivalent to a majority of the employees in the bargaining
unit. Id., ¶62. The elected union remained the representative
unless 30 percent of members of the collective bargaining unit
asked for a decertification election at which the union was
defeated. Id.
¶26 Act 10 changed much of that. It required a labor
organization that was representing a municipal bargaining unit
to succeed in annual certification elections in order to
continue. Id., ¶63. WERC was to certify any representative
that received at least 51 percent of the votes of all of the
employees in the collective bargaining unit. Id. Accordingly,
a non-vote constituted a "no" vote. If no labor organization
received 51 percent of the votes of all members of the
bargaining unit, WERC was to decertify the current
representative when the then-existing collective bargaining
agreement ended and the members of the collective bargaining
unit became unrepresented. Wis. Stat. § 111.70(4)(d)3.b.
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No. 2016AP2214
¶27 Act 10 specifically prohibited employees from coercing
or intimidating other employees in regard to joining, or
refraining from joining, a labor organization. Wis. Stat.
§ 111.70(3)(a)1. Having certification elections that are free
of intimidation and coercion was not a new goal for labor
organization elections in Wisconsin. See WERC v. City of
Evansville, 69 Wis. 2d 140, 164, 230 N.W.2d 688 (1975).
¶28 In City of Evansville, the process then required to
hold a certification election had been followed and an election
date was established. Id. at 146. Prior to the election, the
City's agents coerced employees by offering benefits to those
who did not support a union and threatened the loss of benefits
to those who voted to support the union. Id. at 147. We held
the City's actions were prohibited practices within the meaning
of Wis. Stat. § 111.70(3)(a)1. Id. at 156.
¶29 Under current law, one of the primary goals of
certification elections is to give employees an unintimidated
voice in deciding who, if anyone, will be their representative.
Wis. Stat. § 111.70(3)(a)1. Consistent with that goal,
certification elections are conducted by secret ballot to lessen
intimidation of voters. § 111.70(1)(e); see also Burson, 504
U.S. at 211.
¶30 Mechanisms to lessen voter intimidation when an
election is carried out electronically over 20 days cannot be
the same as they were in Burson when paper ballots were used at
designated polling places. For example, the 100 foot restricted
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No. 2016AP2214
zone around the polling place that the Supreme Court approved in
Burson as a narrowly tailored restriction to meet the compelling
state interest of reducing voter intimidation would have no
effect in the election at issue here because members of the
bargaining unit could vote from the workplace, from home or from
another location over a 20-day period. However, preventing
voter intimidation and coercion are as important in a statutory
certification election as they were in an election of the type
reported in Burson.
D. Application
¶31 As evidenced above, we are tasked with independently
weighing two important public interests. On the one hand, there
is a general presumption that public records shall be open to
the public unless there is a clear statutory exception, a
limitation under the common law, or unless there is an
overriding public interest in keeping the public record
confidential. Hathaway, 116 Wis. 2d at 397. On the other hand,
there is a clearly expressed right to vote in certification
elections that are free from voter intimidation and coercion.
Wis. Stat. § 111.70(3)(a)1.; see also Burson, 504 U.S. at 211.
¶32 MTI contends that because voting was ongoing, those
who had not yet voted could not be treated as a firm "no" vote
and, therefore, the lists of those who had voted would not
violate the secrecy of the ballot by revealing the votes of
anyone. MTI's argument misses the point of why disclosure of
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No. 2016AP2214
the names of those who had voted affects the important public
interest that underlies the use of secret ballots.
¶33 Let us explain. Throughout the election, MTI remained
free to provide truthful information to all members of the
bargaining unit that bore on the advisability of electing MTI as
the exclusive representative. However, giving MTI lists of
employees who had voted at various dates before the election
process was concluded, through simple deletion of voter names
from the list of all members of a bargaining unit, also would
give MTI names of all who had not voted by those dates. Those
non-voting employees could then become individual targets of
MTI's most forceful efforts because if they did not vote by the
conclusion of the election, MTI may have been unable to secure
"yes" votes from 51 percent of the members in the bargaining
unit and thereby fail in its certification efforts.
¶34 When elections are conducted over a period of time and
voting occurs in many locations, there is no physical boundary
by which voter intimidation can be regulated as there was in
Burson. Therefore, preventing voter intimidation during
elections conducted by phone and email, as occurred here, is
challenging. Given MTI's repeated requests for the names of
those who voted before the election concluded, it is entirely
possible that those employees who had not yet voted would become
subject to individualized pressure by MTI of a type that MTI
could not exert when speaking to all members of the bargaining
unit collectively.
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No. 2016AP2214
¶35 As the history underlying the use of secret ballots
teaches, a major purpose of secret ballots is to protect "the
fundamental right" to cast votes in elections that are "free
from the taint of intimidation." Burson, 504 U.S. at 211.
While Burson did not involve a statutory right to vote in
certification elections as is presented here, the public
interest in certification elections that are free from
intimidation and coercion is evidenced by the requirement that
those elections be conducted by secret ballot and free from
prohibited practices. Wis. Stat. §§ 111.70(1)(e) and
111.70(3)(a)1.
¶36 Intimidation in the WERC certification election was a
concern. Scott had received detailed and specific complaints of
past coercion in other certification elections.9 Complaints
included: a union representative directing an employee to a
computer and coercing her to vote for recertification; another
employee being repeatedly asked whether she had voted; and a
third employee witnessing employees being similarly pressured to
vote.
¶37 Each individual voter has a fundamental right to cast
his or her vote without intimidation or coercion. WERC is
charged with conducting fair and accurate annual certification
elections, free from the taint of voter intimidation. The
public has a significant interest in fair elections, where votes
9
The Racine Unified School District had filed a complaint
of which Scott was aware. See supra, ¶7.
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No. 2016AP2214
are freely cast without voter intimidation or coercion.
Accordingly, the public interest in elections that are free from
intimidation and coercion outweighs the public interest in favor
of open public records under the circumstances presented in the
case before us. Scott's denial of MTI's requests for voter
names during the course of the certification election evidences
the lawful balance of public interests presented here.
III. CONCLUSION
¶38 One issue is presented in this appeal: whether the
public interest that elections remain free from voter
intimidation in this certification election is sufficient to
outweigh the public interest in favor of openness of public
records. Because we conclude that Scott lawfully performed the
balancing test in concluding that the public interest in
elections free from voter intimidation and coercion outweighs
the public interest in favor of openness of public records, we
reverse the circuit court. Accordingly, no attorneys fees are
due MTI under the provisions of Wis. Stat. § 19.37(1)(a).
By the Court.—The order of the circuit court is reversed.
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No. 2016AP2214.awb
¶39 ANN WALSH BRADLEY, J. (dissenting). The majority
pays lip service to the important policy behind the public
records law. It proclaims that "[t]he public records law
'serves one of the basic tenets of our democratic system by
providing an opportunity for public oversight of the workings of
government'". Majority op., ¶17. Heralding the policy that
"all persons are entitled to the greatest possible information
regarding the affairs of government," it reaffirms that
Wisconsin has a "presumption of open access to public records."
Id.
¶40 Such exaltation seems to be all hat and no cattle.
Despite Wisconsin's longstanding public policy favoring
transparency, for the third time in three years this court
continues to undermine our public records law.1 Yet again, this
court overturns a lower court decision favoring transparency of
records to which the public is rightfully entitled. Once more
we must ask, "[w]hat has the majority achieved with its opinion
grounded in speculative, abstract, and unsubstantiated fears?"
Democratic Party of Wis. v. DOJ, 2016 WI 100, ¶123, 372
Wis. 2d 460, 888 N.W.2d 584 (Abrahamson, J., dissenting).
¶41 This time the majority undermines the presumption of
open access to public records by imputing an unsupported and
1
See Voces De La Frontera, Inc. v. Clarke, 2017 WI 16, 373
Wis. 2d 348, 891 N.W.2d 803 (4-2 decision, Ann Walsh Bradley,
J., dissenting, joined by Abrahamson, J.); Democratic Party of
Wis. v. DOJ, 2016 WI 100, 372 Wis. 2d 460, 888 N.W.2d 584 (5-2
decision, Abrahamson, J., dissenting, joined by Ann Walsh
Bradley, J.).
1
No. 2016AP2214.awb
nefarious purpose to the records requests based on nonexistent
facts. Without supportive evidence in the record, it speculates
that by providing the requested records to Madison Teachers,
Inc. (MTI), employees who had not yet voted in the
recertification election "could then become individual targets
of MTI's most forceful efforts." Majority op., ¶33.
¶42 Neither the majority nor the records custodian points
to any evidence of voter intimidation or coercion by MTI in this
recertification election. Rather, this concocted concern is
based solely on one uninvestigated and unsubstantiated complaint
from Racine County, involving a different union, in a different
election, in a different year, that did not involve a public
records request.
¶43 Not only does the majority base its conclusion on
facts that do not exist, it also fails to inform the reader of
existing facts in the record and existing public records
precedent that support a contrary conclusion. See John K.
MacIver Inst. for Pub. Policy, Inc. v. Erpenbach, 2014 WI App
49, ¶¶23, 26, 354 Wis. 2d 61, 848 N.W.2d 862 (explaining that a
possibility of threats, harassment or reprisals cannot be
accorded significant weight in the balancing test when the
custodian fails to establish it is reasonably probable such harm
would occur).2 Nevertheless, the majority relies on conjecture
2
See also Milwaukee Journal Sentinel v. DOA, 2009 WI 79,
¶¶57, 63, 319 Wis. 2d 439, 768 N.W.2d 700 (concluding that
safety concerns about retaliation or harassment of DOC employees
by incarcerated persons are not unique concerns and therefore do
not preclude the disclosure of names of corrections employees).
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about generalized concerns of voter coercion in denying this
records request.
¶44 Unlike the majority, I conclude that the records
custodian Scott failed to overcome the presumption of open
access to public records. The unfounded speculation that the
records might be used for improper purposes does not outweigh
the strong public interest in opening the records to inspection.
¶45 Accordingly, I respectfully dissent.
I
¶46 The majority engages in selective vision. It sees
facts that do not exist, while at the same time failing to
recognize existing facts of record.
A
¶47 Left with non-existent facts, the majority instead
speculates. It imputes an unsupported and nefarious purpose to
the records requests. Ultimately it concludes that "[g]iven
MTI's repeated requests3 for the names of those who voted before
the election concluded, it is entirely possible that those
employees who had not yet voted would become subject to
individualized pressure by MTI of a type that MTI could not
exert when speaking to all members of the bargaining unit
collectively." Majority op., ¶34 (emphasis added).
3
When left without supportive facts, the majority
apparently resorts to exaggeration. It states that MTI made
"repeated requests" during the 2015 certification elections for
the names of those who had cast ballots. Majority op., ¶¶2, 34.
In fact, MTI made just two public records requests during the
2015 recertification election.
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No. 2016AP2214.awb
¶48 Absent from the record is evidence that providing the
requested records presented a reasonable probability of voter
intimidation or coercion:
There is no evidence in the record that the Wisconsin
Employment Relations Commission (WERC) opened an
investigation about MTI engaging in such acts here.
The record is devoid of any evidence of a verbal or written
complaint of voter intimidation or coercion in this
recertification election.
The majority cannot point to any allegation in the record
that MTI has ever acted improperly in this or any other
recertification election.
¶49 Left with this void, the majority instead relies on an
unsubstantiated allegation from Racine County that voters there
"had been coerced and harassed into voting." Majority op., ¶7.
The Racine allegations, however, involved not only a different
location, but also a different union, in a different election,
in a different year, that did not involve a public records
request. WERC did not investigate the Racine allegations, and
accordingly those allegations were never substantiated.
¶50 In short, it is difficult to imagine a scenario where
there is less evidence of potential harm in the record than
here. One would expect the highest court of this state to rely
on more than such unrelated and unsubstantiated allegations for
its assertion that the risk of voter intimidation or coercion
here was great enough to overcome the strong presumption of open
access to public records. It does not.
4
No. 2016AP2214.awb
B
¶51 A public record that is available to one, is available
to all. Kraemer Bros., Inc. v. Dane Cty., 229 Wis. 2d 86, 102,
599 N.W.2d 75 (Ct. App. 1999). It has long been recognized that
"[n]either the identity of the requester nor the reasons
underlying the request are factors that enter into the
balanc[ing test]." State ex rel. Ledford v. Turcotte, 195
Wis. 2d 244, 252, 536 N.W.2d 130 (Ct. App. 1995); Levin v. Bd.
of Regents of Univ. of Wis. Sys., 2003 WI App 181, ¶¶14-18, 266
Wis. 2d 481, 668 N.W.2d 779.
¶52 These guiding principles are rooted in the language of
the statutes. Wisconsin Stat. § 19.35(1)(i) explains that a
records custodian may not refuse to release a public record
"because the person making the request is unwilling to be
identified or to state the purpose of the request." Likewise, §
19.35(1)(a) provides that "any requester has a right to inspect
any record." See also Linda de la Mora, The Wisconsin Public
Records Law, 67 Marq. Law Rev. 65, 69 (1983) (explaining that in
Wisconsin, as in most jurisdictions, the motive of the requester
is irrelevant to the question of whether to grant access to
public records).
¶53 The identity of the requester and the purpose of the
request should not matter here. Nevertheless, if the majority
is going to erroneously superimpose its own speculative motive
upon the requester, it should at least mention existing facts of
record that support a contrary conclusion. It fails to do so.
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¶54 In providing context, counsel for MTI explained at
oral argument that "the only opportunity that the public has for
oversight of the WERC's election administration is through
public records. There is a strong public interest in ensuring
that the recertification elections that are conducted by the
WERC are transparent and open to ensure the integrity of those
elections."
¶55 The annual elections for public employees to select
representatives for purposes of collective bargaining were
previously conducted in person. They are now conducted
electronically and employees vote either by phone or computer.
MTI asserts that what was formerly an open and observable
government process is now closed. It contends that the only
opportunity that the public has for oversight of WERC's election
administration is through public records. MTI explains that the
need for oversight is revealed by the facts of record.
¶56 However, the majority omits these facts. WERC
acknowledged various voter complaints during MTI's 2015
recertification election, including that an eligible voter's
name was not in the system and a failure to receive confirmation
that a vote had been counted. Absent from the majority opinion
is the fact that Scott specifically acknowledged receiving
various complaints about:
A voter who was blocked from voting because she was told
she had already voted;
A voter who had submitted a ballot but did not receive
confirmation that the vote was submitted;
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No. 2016AP2214.awb
A voter's name that was missing from the eligible voter
list, and;
A voter who needed a new access code to submit a ballot.
¶57 When speculating about the intent behind these records
requests, the majority also ignores the record evidence that MTI
advised WERC that it "w[ould] not engage in voter coercion or
any other illegal election practices during the upcoming
election." MTI explained at oral arguments that it made these
records requests to ensure WERC properly executed its election-
administration duties.
¶58 The majority fails to take into account these facts of
record that address the integrity of the election process. In
other words, when conducting the balancing test, the majority
erroneously relies solely on what it assumes is the intent
behind the records requests. It ignores the evidentiary record
which illustrates the importance of the policy behind the public
records law: it "serves one of the basic tenets of our
democratic system by providing an opportunity for public
oversight of the workings of government." See majority op., ¶17
(citing Nichols v. Bennett, 199 Wis. 2d 268, 273, 544 N.W.2d 428
(1996).
II
¶59 The usual admonition is that if you do not have the
facts, then argue the law. Conversely, if you do not have the
law, then argue the facts. The majority has neither.
¶60 Here the majority fails to recognize and address
recent precedent that impels a conclusion contrary to that of
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No. 2016AP2214.awb
the majority. In Erpenbach, the MacIver Institute sought copies
of correspondence sent to Senator Erpenbach's office related to
2011 Act 10. 354 Wis. 2d 61, ¶3. Erpenbach agreed to provide
some of the requested documents, but redacted the personal
contact or identifiable information of the email senders. Id.
He justified the redactions in part on the context of the
"nuclear environment" surrounding 2011 Act 10 debates, asserting
that the redactions would protect the e-mail senders against
unwanted threats, harassment or reprisals. Id., ¶¶5, 22, 23.
¶61 The court disagreed, explaining that although
Erpenbach identified threats and harassment levied against
public officials and police officers, he did not identify actual
threats, harassment or reprisals against concerned citizens.
Id., ¶23. Accordingly, it determined that Erpenbach failed to
demonstrate "a reasonable probability" that the email senders
"would be subjected to negative repercussions for sharing their
views regarding the legislation." Id.
¶62 Further, the court observed that "Erpenbach's
generalized concern of possible threats, harassment or reprisals
could apply equally to any controversial public policy." Id.,
¶24. Indeed, the problem with relying on generalized concerns
of harm when conducting the balancing test is that such concerns
"would be in the eyes of the beholder," thus drawing courts into
the political fray. Id., ¶39 (Brown, C.J., concurring).
¶63 Neither Scott nor the majority contends that voter
intimidation or coercion was probable during MTI's election.
Rather, Scott referred to a "potential" for voter coercion, and
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the majority suggests only that it is "entirely possible" that
MTI would exert pressure on potential voters. Majority op.,
¶34.
¶64 The mere possibility of voter intimidation or coercion
they both raise falls short of establishing a reasonable
probability that such harm would actually occur. Accordingly,
this concocted concern should not be afforded significant weight
in the balancing test. See Erpenbach, 354 Wis. 2d 61, ¶26.
¶65 Ignoring Erpenbach, the majority instead
unpersuasively relies on non-public records cases, Burson v.
Freeman, 504 U.S. 191 (1992) and WERC v. City of Evansville, 69
Wis. 2d 140, 230 N.W.2d 688 (1975). In Burson, the Supreme
Court upheld a restricted zone around polling places to preserve
the right to cast a ballot free from the taint of intimidation
or fraud. 504 U.S. at 211. The concern examined in Burson was
the right to vote and the secrecy of the ballot. Id. at 198-
202. Conversely, at issue here is a request for the list of the
names of those who have cast a ballot in an election——
information that has historically been publicly available.
Neither the right to vote nor the secrecy of the ballot is
implicated in these public records requests.
¶66 In Evansville, the analysis relied heavily on evidence
of actual threats or coercion, thus undermining the majority's
reliance on generalized conjecture. 69 Wis. 2d at 153-157. The
Evansville court examined extensive documentation of threats and
coercive communications to employees, including threats of loss
of benefits if employees engaged in union activities. Id. In
9
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contrast, the record here lacks evidence of any actual coercion
or threats by MTI.
¶67 Finally, when conducting the balancing test the
majority takes into account that this recertification election
was conducted electronically, rather than by paper ballot.
Majority op., ¶¶30, 34. According to the majority, "[w]hen
elections are conducted over a period of time and voting occurs
in many locations, there is no physical boundary by which voter-
intimidation can be regulated . . . ." Majority op., ¶34.
¶68 As MTI explained in its brief to the court, "[i]f WERC
had conducted an election that required employees to cast
ballots in person rather than electronically, MTI would have had
no need to request the record, but could simply have had
representatives present to observe the election firsthand, as
allowed under the WERC's administrative rules."4 MTI's counsel
further explained at oral arguments that as a result of WERC's
change in the administration of the certification election,
"what was formerly an open and observable government process is
now closed."
¶69 Unlike the majority, I would not permit a
technological upgrade in the administration of an election to
shield the release of records to which the public is rightfully
4
Public union certification elections may be conducted "on-
site or by mail or by other means determined by the commission
to be fair and reliable." Wis. Admin. Code § ERC 70.07(1).
"Any interested party may be represented by observers at on-site
election locations and at locations at which vote counts are
conducted." Wis. Admin. Code § ERC 70.07(3).
10
No. 2016AP2214.awb
entitled. State ex rel. Milwaukee Police Ass'n v. Jones, 2000
WI App 146, ¶19, 237 Wis. 2d 840, 615 N.W.2d 190 ("A potent open
records law must remain open to technological advances so that
its statutory terms remain true to the law's intent.").
¶70 For the reasons stated above, I find unpersuasive the
majority's determination that Scott "lawfully performed the
balancing test in concluding that the public interest in
elections free from voter intimidation and coercion outweighs
the public interest in favor of openness of public records."
Majority op., ¶3.
III
¶71 Applying the public records balancing test, I conclude
that Scott has failed to overcome the strong presumption
favoring the release of the requested records. See Linzmeyer v.
Forcey, 2002 WI 84, ¶¶10-12, 254 Wis. 2d 306, 646 N.W.2d 811.
"The duty of the [records] custodian is to specify reasons for
nondisclosure and the court's role is to decide whether the
reasons asserted are sufficient." Newspapers, Inc. v. Breier,
89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979).
¶72 Before this court, Scott provides two5 justifications
for denying these public records requests: to protect the
5
The first reason Scott provided to MTI in the denial
letters was that because WERC utilized a third-party vendor to
administer the election, WERC did not possess the requested
records. Majority op., ¶7. However, the circuit court stated
that "there was no attempt ever made to figure out if [Scott]
could produce the documents," a conclusion that counsel for
Scott conceded was accurate at oral arguments before this court.
Counsel for Scott further explained that he abandoned this
argument on appeal. Accordingly, I do not consider it when
conducting the balancing test.
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No. 2016AP2214.awb
secrecy of the ballot and to avoid the potential for voter
coercion during the election. Majority op., ¶7.
¶73 Scott's first argument——that disclosure would violate
the secrecy of the ballot——rings hollow. Although the
substantive votes on a ballot are confidential, the identity of
those who voted is not.6 Disclosing the names of those who have
cast a ballot prior to the conclusion of an election does not
violate the secrecy of the ballot. At oral argument, counsel
for Scott aptly explained the distinction between the act of
voting and the secrecy of the ballot:
The act of voting is never secret. The ballot is
certainly secret. After an election is finished, no
ballot will ever be disclosed. The act of not voting
is a non-vote, but the Chairman decided that because
of transparency after the election . . . The act of
not voting is not given the same protection as the
ballot.
¶74 Additionally, Scott undermined his purported concern
about protecting the secrecy of the ballot by releasing the
names of those who voted after the conclusion of the election.
I agree with the circuit court that refusing to disclose the
names of voters during the election but releasing that
information after the election is "entirely contradictory" and
6
See Wis. Stat. § 6.36(1)(a)(1),(7)&(1)(b)1 (clarifying
that the official voter registration list in Wisconsin——
including the names and dates of any election in which the
elector votes——is a public record "accessible by any person");
Wis. Stat. § 6.79(2)-(3) (voters must state their names and
present proof of identity at polling places before they may
vote); Wis. Stat. § 7.41(1) (members of the public may observe
elections at polling places); see also Wis. Admin. Code § EL
3.50(2)-(3); Wis. Admin. Code § ERC 70.07(3).
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"paradoxical." Accordingly, I afford Scott's purported concern
about maintaining the secrecy of the ballot little weight in the
balancing test.
¶75 Scott's second argument that denying these public
records requests was necessary to prevent "the potential for
voter coercion while balloting is ongoing" is similarly
unconvincing. As discussed above, Scott failed to provide any
evidence that MTI ever attempted to coerce or intimidate voters
in this, or any other, recertification election. Moreover,
Scott did not provide any substantiated evidence that
intimidation or coercion occurred in any other recertification
election in Wisconsin. Thus, I conclude that Scott failed to
establish that it was reasonably probable that such harm would
occur in MTI's 2015 recertification election.
¶76 Ensuring the integrity of elections is an important
public interest. For that reason, the legislature empowered
WERC with tools to investigate and penalize unfair labor
practices, including voter coercion. See Wis. Stat. § 111.07.
The legislature did not, however, carve out an exception to the
public records law permitting WERC to withhold records that
historically have been accessible to the public.
¶77 In sum, I conclude that Scott failed to overcome the
presumption that all public records shall be open to the public.
Unlike the majority, I determine that the unfounded speculation
that the records might be used for improper purposes does not
outweigh the strong public interest in opening the records to
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inspection. Accordingly, I would affirm the circuit court's
determination that Scott violated the public records law.
¶78 For the foregoing reasons, I respectfully dissent.
¶79 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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1