Thomas Woznicki vs. Jeff Moberg (New Richmond, Wisconsin School District)

1. RECEIVED 12-30-2015 STATE OF WISCONSIN COURT OF APPEALS DISTRICT III CLERK OF COURT OF APPEALS OF WISCONSIN THOMAS WOZNICKI, Plaintiff-Appellant, Appeal No. 2015AP1883 v .. Circuit Court Case No. 20l5CVOOO183 JEFF MOBERG, Records Custodian, School District of New Richmond, Defendant-Respondent. BRIEF OF DEFENDANT-RESPONDENT APPEAL FROM FINAL JUDGMENT OF THE CIRCUIT COURT OF ST. CROIX COUNTY, THE HONORABLE ERIC J. LUNDELL PRESIDING RUPP, ANDERSON, SQUIRES & W ALDSPURGER, PA Michael J. Waldspurger (#1020974) Trevor S. Helmers (#1096386) Rachel A. Centinario (#1079757) 527 Marquette Avenue South, Suite 1200 Minneapolis, MN 55402 P: (612) 436-4300 E: mick.waldspurger@raswlaw.com trevor.helmers@raswlaw.com rachel.centinario@raswlaw.com Anne E. Woznicki (#1074017) 6107 Pine Cone Way Fitchburg, WI 53719 Attorney for Plaintiff-Appellant Thomas Woznicki Attorneys for Defendant-Respondent Jeff Moberg, Records Custodian, School District of New Richmond

2. TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................. ii STATEMENT OF THE ISSUES ........................................................................................ 1 STATEMENT OF THE CASE ........................................................................................... 3 ARGUMENT ...................................................................................................................... 5 I. THE STRONG PRESUMPTION IN FAVOR OF DISCLOSING PUBLIC RECORDS OUTWEIGHS ANY PURPORTED PUBLIC INTEREST IN NON- DISCLOSURE ................................................................................................................ 6 A. Outweigh the Strong Presumption in Favor of Access ............................................... 8 Woznicki Cannot Establish that His Privacy or Reputational Concerns B. Harassment, Nor Can He Establish that such Purported Harassment Outweighs the Strong Presumption of Access .................................................................................. 14 Woznicki Cannot Demonstrate that He Will Be Subjected to Future II. PROPERLY BEFORE THIS COURT, AND EVEN IF THEY WERE, THE DISTRICT HAS COMPLIED WITH ITS RECORDS RETENTION POLICY ......... 17 WOZNICKl'S RECORDS RETENTION ARGUMENTS ARE NOT CONCLUSION ................................................................................................................. 21 CERTIFICATION OF FORM AND LENGTH OF BRIEF ............................................. 22 CERTIFICATION OF COMPLIANCE WITHS. 809.19(12) ......................................... 23 CERTIFICATION OF SERVICE ..................................................................................... 24

3. TABLE OF AUTHORITIES Cases C.L. v. Edson, 140 Wis. 2d 168, 182, 409 N.W.2d 417 (Ct. App. 1987) ............................ 7 Doe v. Reed, 561 U.S. 186, 130 S.Ct. 2811 (2010) ........................................................... 16 Hathaway v. Joint Sch. Dist. No. 1, City of Green Bay, 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984) ...................................................................................................... 7, 8 Hempel v. City of Baraboo, 2005 WI 120,, 21, 284 Wis. 2d 162, 699 N.W.2d 551.. ... 5, 6 John K. Maciver Institute for Public Policy Inc. v. Erpenbach, 2014 WI App 49,, 32, 254 Wis. 2d 61, 848 N.W.2d 862 ............................................................................ 13, 16 Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shorewood, 186 Wis. 2d 443, 459, 521 N.W.2d 165 (Ct. App. 1994) ......................................................................................... 13 Kailin v. Rainwater, 226 Wis. 2d 134, 593 N.W.2d 865 (Ct. App. 1999) .................. 11, 13 Klein v. Wisconsin Resource Center, 218 Wis. 2d 487, 582 N.W.2d 44 (1998) ................ 9 Kroeplin v. Wisc. Dep 't of Nat. Resources, 2006 WI App 227, ,, 28-31, 297 Wis. 3d 254, 725 N.W.2d 286 ........................................................................................................ 8, 15 Linzmeyer v. D.J. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811 ........ 10, 11, 12 Local 2489, AFSCME, AFL-CIO v. Rock Cty., 2004 WI App 210,, 25, 277 Wis. 2d 208, 689 N.W.2d 644 ........................................................................................................ 5, 10 Milw. Journal Sentinel v. Wisc. Dep 't of Admin., 2009 WI 79,, 62, 319 Wis. 2d 439, 768 N.W.2d 700 ................................................................................................................... 10 Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65,, 40, 341 Wis. 2d 607, 815 N.W.2d 367 .............................................................................................................. 7 Milwaukee Teachers' Educational Association v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999) ...................................................................... 9 Osborn v. Bd. of Regents, 2002 WI 83,, 12, 254 Wis.2d 266, 647 N.W.2d 158 ............... 5 Schill v. Wisc. Rapids Sch. Dist., 2010 WI 86,, 19, 327 Wis. 2d 572, 786 N.W.2d 177. 5, 12 Seifert v. Sch. Dist. of Sheboygan Falls, 2007 WI App 207,, 15, 305 Wis. 2d 582, 740 N.W.2d 177 ..................................................................................................................... 6 State ex rel. Ardell v. Milwaukee Board of School Directors, 2014 WI App 66, 354 Wis. 2d 471, 849 N.W.2d 894 ............................................................................................... 15 State ex rel. Ledford v. Turcotte, 195 Wis. 2d 244, 536 N.W.2d 130 (Ct. App. 1995) ... 11, 13 State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 (1965) ................ 11, 12 Wisc. State Journal v. Univ. of Wisc.-Platteville, 160 Wis. 2d 31, 465 N.W.2d 266 (Ct. App. 1990) ..................................................................................................................... 11 II

4. Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis. 2d 768, 546 N.W.2d 143 (1996) ........................................................................................................ 11 Zellner v. Cedarburg Sch. Dist. ("Zellner!''), 2007 W1 53, iJ 49, 300 Wis. 2d 290, 731 N.W.2d 240 ......................................................................................................... 6, 11, 12 Statutes Wis. Stat.§ 120.12 ............................................................................................................ 19 Wis. Stat.§ 19.21 .................................................................................................. 17, 18, 19 Wis. Stat.§ 19.31 ............................................................................................................ 6, 7 Wis. Stat.§ 19.35 .......................................................................................................... 7, 20 Wis. Stat. § 19.356 ........................................................................................................ 9, 14 Wis. Stat.§ 19.36 ............................................................................................................ 7, 8 Wis. Stat. § 893.587 .......................................................................................................... 20 Other Authorities U.S.C. § 1232g, 34 C.F.R. Part 99 ...................................................................................... 8 111

5. STATEMENT OF THE ISSUES Whether, under Wisconsin's open records law, the strong presumption of public interest in favor of disclosure of a former employee's personnel file outweighs the public interest in non-disclosure of that file, where that former employee's file includes the results of an investigation into disciplinary matters. I

6. STATEMENT ON ORAL ARGUMENT AND PUBLICATION Pursuant to Wisconsin Statutes Section 809.22(2)(a) and (b), oral argument is not necessary is this case, as Plaintiff-Appellant's arguments are plainly contrary to relevant legal authority that appear to be sound and are not significantly challenged or are on their face without merit and for which no supporting authority is cited or discovered, and because the parties are able to fully present and meet the issues on appeal and fully develop the theories and legal authorities on each side such that oral argument would be of marginal value. Because the issue presented on appeal will require the Court of Appeals to decide a case of substantial and continuing public interest, this matter meets the criteria for publication in the official reports of an opinion of the court pursuant to Wisconsin Statutes Section 809.23(l)(a)5. 2

7. STATEMENT OF THE CASE This matter comes before this Court on appeal from a final judgment entered by the St. Croix County Circuit Court, where the Honorable Judge Eric J. Lundell agreed with the School District of New Richmond ("District") that the personnel file of Thomas Woznicki ("Woznicki"), a former District employee, must be disclosed upon request under Wisconsin's Open Records Law, Wisconsin Statutes Sections 19 .31-19 .3 9. Statement of Facts On March 27, 2015, CRG Network filed a records request with Jeff Moberg ("Moberg"), who, at that time, was the District Administrator and Records Authority for the District. (R. 22 at 1.) The request sought "[a] copy of the complete personnel file for Mr. Thomas Woznicki for any period of time that he has been employed by the New Richmond School Dist[rict]." (R. 12 at iii! 2, 3; R. 18 at iii! 5, 6.) Because Woznicki had been employed by the District from approximately August 1987 to about August 1997 (R.12 at i! 1; R. 18 at i! 4), the District had records responsive to the request. However, given that Woznicki' s personnel file contains records relating to allegations of misconduct and related grievances and arbitration decisions, the District analyzed the records request pursuant to Wisconsin Statutes Section 19.356. The District considered the relevant factors, applied the required balancing test, and determined that the legislative policy recognizing the public interest in inspection outweighs any harm to the public interest from disclosure of the records. (R. 18 at i! 13.) Pursuant to Wisconsin Statutes Section 19.356(2)(a)l, before providing CRG Network access to the requested records, and within three days after making the decision to permit access, Moberg served 3

8. written notice of his decision to release the records on Woznicki via e-mail on April 1, 2015, and certified mail on April 6, 2015. (R. 12 at13; R. 18 at16.) On April 7, 2015, Woznicki notified Moberg via e-mail and first class mail of his intent to seek a court order restraining the District from providing access to the requested records. (R. 12at17; R. 18at17.) Woznicki then initiated an appeal to the St. Croix County Circuit Court by electronically filing his Summons and Complaint on April 16, 2015, pursuant to Wisconsin Statutes Section 19.356(4). (R. 1.) Before Moberg was served with the Complaint, the District provided a letter to Woznicki dated July 1, 2015, detailing each document in Woznicki' s personnel file, including any relevant redactions, and offering to provide a redacted copy for Woznicki to review. (R. 22 at 2.) Woznicki has not responded to the District's offer to view his redacted personnel file to date. (R. 22 at 2.) Before serving Moberg with the Summons and Complaint, Woznicki electronically filed an Amended Complaint on July 9, 2015. (R. 12.) Pursuant to an agreement between the parties, Woznicki served Moberg with the Summons, Complaint, and Amended Complaint via e-mail on July 13, 2015. (R. 20.) The District filed and electronically served its Answer to the Amended Complaint on July 16, 2015. (R. 18.) Woznicki filed Proof of Service on July 17, 2015. (R. 20.) On August 18, 2015, Judge Lundell issued an order refusing to enjoin the release ofWoznicki's personnel file. (R. 26.) There, Judge Lundell held that, after conducting an in camera inspection ofWoznicki's redacted personnel file, "this Court in exercising 4

9. its discretion upholds the defendant School District's decision" to release the records. (R. 26.) On September 9, 2015, Woznicki filed the instant appeal. (R. 27.) Standard of Review The application of Wisconsin's open records law is a question oflaw that this Court reviews de novo, "benefitting from the analys[i]s" of the lower court. Hempel v. City of Baraboo, 2005 Wl 120, ii 21, 284 Wis. 2d 162, 699 N.W.2d 551 (citing Osborn v. Bd. of Regents, 2002 WI 83, ii 12, 254 Wis.2d 266, 647 N.W.2d 158); see also Schill v. Wisc. Rapids Sch. Dist., 2010 Wl 86, ii 19, 327 Wis. 2d 572, 786 N.W.2d 177. However, as this Court has previously explained, the statutory right to judicial review is "a right to obtain de novo judicial review, not a right to prevent disclosure solely on the basis of a public employee's privacy and reputational interests." Local 2489, AFSCME, AFL-CIO v. Rock Cty., 2004 WI App 210, ii 25, 277 Wis. 2d 208, 689 N.W.2d 644. ARGUMENT Wisconsin's open records law, Wisconsin Statutes Sections 19.31-19.39, requires disclosure of public employee personnel records containing the results of investigations of misconduct by the employee where the public interest in disclosure outweighs the public interest in non-disclosure. Because the lower court properly upheld the District's decision to disclose Woznicki's personnel file,1 and because neither the District's records 1 As Woznicki notes, the District's decision to release the records was due to its finding that the strong presumption in favor of the public interest in disclosure outweighs the public interest in non-disclosure of Woznicki's personnel file. Appellant Br. at 8. Although the St. Croix County Circuit Court held that the strong presumption in favor of the public interest in disclosure outweighs the plaintiff's interest in non- disclosure of plaintiff's personnel file, the St. Croix County Circuit Court specifically upheld the District's decision, which was made under the correct balancing test. Appellant Br. at 8; Appellant App. 5

10. retention schedule nor Wisconsin Statutes Section 19.21 creates a private right of action, the District respectfully requests that this Court deny the appeal. THE STRONG PRESUMPTION IN FAVOR OF DISCLOSING PUBLIC RECORDS OUTWEIGHS ANY PURPORTED PUBLIC INTEREST IN NON-DISCLOSURE. I. Woznicki has failed to meet his burden of establishing that the public interest in non-disclosure is so exceptional as to overcome the strong presumption in favor of public access to his personnel file from the time he was employed with the District. As such, the appeal should be denied and the circuit court affirmed. Wisconsin legislative policy has consistently favored the broadest practical access to information regarding the government. Hempel v. City of Baraboo, 2005 WI 120, ~ 22, 284 Wis. 2d 162, 699 N.W.2d 551; Seifert v. Sch. Dist. of Sheboygan Falls, 2007 WI App 207, ~ 15, 305 Wis. 2d 582, 740 N.W.2d 177. Indeed, one of the strongest declarations of policy found in Wisconsin statutes is found at Wisconsin Statutes Section 19 .31, which provides, "[I]t is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them." Wis. Stat.§ 19.31; see also Zellner v. Cedarburg Sch. Dist. ("Zellner/"), 2007 WI 53, ~ 49, 300 Wis. 2d 290, 731 N.W.2d 240. Providing citizens with information on the affairs of government is: of Br. at J. The lower court's reference to the plaintiffs interest thus constitutes hannless error, and the District's decision to release the records should be upheld. 6

11. [A Jn essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied. Wis. Stat. § 19 .31 (emphasis added). "[T]he burden lies with the original parties [who contest the release of the records] to rebut the strong presumption to the contrary." C.L. v. Edson, 140 Wis. 2d 168, 182, 409 N.W.2d 417 (Ct. App. 1987). Wisconsin courts interpret the public records law in light of the legislature's policy declaration so as to foster transparent government. Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, iJ 40, 341 Wis. 2d 607, 815 N.W.2d 367. To be sure, the general rule is that "[ e ]xcept as otherwise provided by law, any requester has a right to inspect any record." Wis. Stat.§ 19.35 (I) (a). There are only three exceptions to this strong presumption of public access: 1) specific statutory exemptions; 2) specific common law exemptions; and 3) a judicial determination, supported by factual findings, that there is an "overriding public interest in keeping the public record confidential." See Hathaway v. Joint Sch. Dist. No. I, City of Green Bay, 116 Wis. 2d 388, 397, 342 N.W.2d 682 (1984). "Exceptions should be recognized for what they are, instances in derogation of the general legislative intent, and should, therefore, be narrowly construed ... " Id. Specific exemptions to Wisconsin's open records law are set forth in Wisconsin Statutes Sections 19.35(1) and 19.36. Although no statutory exemption applies to 7

12. Woznicki's personnel file as a whole, by letter dated July I, 2015, the District informed Woznicki that it would redact any and all personal and financial information, medical information, or private student data as required by Wisconsin Statutes Sections 19.36(10), (13); l 18.125(1)(d); and 146.82; and the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, 34 C.F.R. Part 99. See also Wis. Stat. § 19.36(6) (requiring redaction of information not subject to disclosure from record prior to release). Similarly, no common law exemption applies to the requested records. See Kroeplin v. Wisc. Dep 't of Nat. Resources, 2006 WI App 227, ~ ~ 28-31, 297 Wis. 3d 254, 725 N.W.2d 286 (noting that Wis. Stat.§ 19.36(10)(b) codifies common law exceptions and holding there is no blanket exception under open records law for public employee records). Thus, this Court must analyze the instant issue under a public policy analysis to determine whether the strong presumption in favor of access to public records outweighs the public interest in nondisclosure. See id; see also Hathaway, 116 Wis. 2d at 397. In this case, there was no evidence submitted to the circuit court to overcome the strong presumption in favor of public access to Woznicki's personnel file. In support of his argument on appeal, Woznicki focuses on his own privacy and reputational interests, as well as harassment he alleges he may face if the records are disclosed. However, Woznicki's purported future injuries are at once purely speculative and a red herring. A. Woznicki Cannot Establish that His Privacy or Reputational Concerns Outweigh the Strong Presumption in Favor of Access In alleging he has a privacy interest in his personnel file that would outweigh the strong presumption in favor of disclosure, Woznicki cites to Klein v. Wisconsin Resource 8

13. Center, 218 Wis. 2d 487, 582 N.W.2d 44 (1998). However, Klein specifically relied upon the holding of Woznicki v. Erickson, 202 Wis. 2d 179 ( 1999). In 2003, after the decisions in both Klein and Woznicki, the legislature enacted Wisconsin Statutes Section 19.356, which was expressly designed to amend and overturn Woznicki and its related opinion, Milwaukee Teachers' Educational Association v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999). See 2003 WI Act 47. The legislature rejected Woznicki 's holding that public employees generally have a privacy interest in their personnel files and explicitly stated it would "appl[y] the rights afforded by Woznicki and Milwaukee Teachers' only to a defined set of records pertaining to employees residing in Wisconsin." 2003 WI Act 47. Thus, Woznicki's reliance on this case is misplaced. Here, under Wisconsin Statutes Section 19.356, Woznicki may only challenge the release of the District's records pertaining to the results of investigations into disciplinary matters involving Woznicki. See Wis. Stat. § 19.356(2)(a)I. He does not, as per the legislature's codification of Woznicki, have a general right of privacy to the entirety of his personnel file, as the plaintiffs in Klein and Woznicki were originally held to have. See Klein, 218 Wis. 2d at 490 n.l (noting "[t]his holding of the opinion is of limited precedential value" due to subsequent legislative statutory revisions involving a different matter that are equally applicable to the legislative revisions in 2003 WI Act 47). Additionally, any privacy concerns by Woznicki are mitigated here by the fact that Woznicki' s contact infonnation and financial data will be redacted, as the District informed Woznicki via letter dated July 1, 2015. (R. 22 at 7.) 9

14. Moreover, Woznicki's personal interest in his privacy is not a proper consideration; rather, only ifthere is a public interest in protecting an individual's privacy or reputational interest as a general matter, such as ensuring that citizens will be willing to take jobs as police, fire, or correctional officers, is there then a proper public interest favoring the protection of the individual's privacy interest. See Linzmeyer, 2002 WI 84 at 131 ("[T]he public interest in protecting individuals' privacy and reputation arises from the public effects of the failure to honor the individual's privacy interest, and not he individual's concern about embarrassment."). Without more, the potential for embarrassment is not a sufficient basis for withholding a record. Milw. Journal Sentinel v. Wisc. Dep 't of Admin., 2009 WI 79, 162, 319 Wis. 2d 439, 768 N.W.2d 700. In fact, Woznicki's arguments regarding the potential impact the release of the records may have on his reputation have been consistently rejected by courts. Indeed, "[ w ]hen individuals become public employees, they necessarily give up certain privacy rights and are subject to a degree of public scrutiny." Local 2489, AFSCME, AFL-CIO v. Rock County, 2004 WI App 210, 126, 277 Wis. 2d 208, 689 N.W.2d 644. "Thus, the public's interest in not injuring the reputations of public employees must be given due consideration, but it is not controlling." Id. In Rock County, this Court noted that where a generalized interest in privacy or reputation "is weighed against the overriding public interest in obtaining information regarding the activities of public servants, it quickly yields to the greater weight of the latter interest." Id. at 131. Likewise, the Wisconsin Supreme Court has recognized that courts must "give greater weight to the public's interest in knowing the disciplinary results of conduct of its 10

15. public officials than to the possible harm to a particular official's reputation." Wisc. Newspress, Inc. v. Sch. Dist. of Sheboygan Falls, 199 Wis. 2d 768, 788, 546 N.W.2d 143 (1996). See also State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W.2d 470 ( 1965) (concerning access to records of investigation of alleged misconduct by police officers); Wisc. State Journal v. Univ. of Wisc.-Platteville, 160 Wis. 2d 31, 465 N.W.2d 266 (Ct. App. 1990) (ordering release of records concerning allegations of misconduct by university dean and professor); State ex rel. Ledford v. Turcotte, 195 Wis. 2d 244, 536 N.W.2d 130 (Ct. App. 1995) (ordering release of records concerning allegations of illegal activity by prison correctional staff); Wisconsin Newspress, Inc. v. School Dist. of Sheboygan Falls, 199 Wis. 2d 768, 546 N.W.2d 143 (1996) (ordering release of records concerning allegations of misconduct by school superintendent); Kai/in v. Rainwater, 226 Wis. 2d 134, 593 N.W.2d 865 (Ct. App. 1999) (ordering release of records concerning allegations of official misconduct by school teacher later promoted to principal); Linzmeyer v. D.J. Forcey, 2002 WI 84, 254 Wis. 2d 306, 646 N.W.2d 811 (ordering release of report from police investigation of teacher misconduct with student); Zellner I, 2007 WI 53 (ordering release of records pertaining to continued investigation of teacher misconduct after final disposition of initial investigation already occurred). Such records concerning alleged misconduct by public employees have been subject to disclosure whether the charges are proven, see Wisconsin Newspress, 199 Wis. 2d at 788, or dismissed as unfounded, see University of Wisconsin-Platteville, 160 Wis. 2d at 42. In fact, specific to allegations of misconduct by public school teachers, courts have consistently found that there is an overwhelming public interest in releasing such records. 11

16. In Zellner I, for example, the Court held that the public has a significant interest in disclosure of records related to allegations of public school teacher misconduct, as well as how such allegations are handled, because teachers are entrusted with the significant responsibility of teaching children. 2007 WI 53 at i! 53. Similarly, inLinzmeyer, the Court held that a public school teacher had not shown there to be a public interest in maintaining the confidentiality of a report regarding the investigation by police of his alleged "inappropriate statements to, and ... inappropriate conduct with, a number of his female students" sufficient to "overcome the presumption of openness." 2002 WI 84 at irir 4, 25, 42. In addition, the public has a significant interest in monitoring the District's investigation into complaints against Woznicki. To be sure, there are two long- recognized compelling reasons for public oversight of investigations into allegations of public employee misconduct - to monitor the performance of the accused public employees and to monitor the performance of those officials charged with investigating the allegations ofmisconduct.2 See Youmans, 28 Wis. 2d at 685 (recognizing public interest in mayor's decision not to discipline police officer for misconduct); see also Journal/Sentinel, Inc. v. Sch. Bd. of Sch. Dist. of Shorewood, 186 Wis. 2d 443, 459, 521 2 The new facts Woznicki has raised on appeal, such as his statement that, "Of the seven current members of the School District of New Richmond's Board of Education, only one was in office during part of Woznicki's tenure with the District," see Appellant Br. at 9-10, n. 4, are not properly before this Court as they were not a part of the record below. Schill v. Wisc. Rapids Sch. Dist., 2010 WI 86, i! 45, 327 Wis. 2d 572, 786 N.W.2d 177 (holding that an issue is forfeited when not raised before lower court). Nevertheless, the fact that at least one elected School Board Member who served during Woznicki's tenure with the District remains on the District's Board of Education further supports the public interest in disclosure of the records, as the public will be able to assess and monitor the current Board Member's performance related to the investigation into the past allegations of misconduct related to Woznicki. 12

17. N.W.2d 165 (Ct. App. 1994) (recognizing the public's interest in a school district's decision to accept a superintendent's resignation as part of settlement with the superintendent); John K. Maciver Institute for Public Policy Inc. v. Erpenbach, 2014 WI App 49, 'I] 32, 254 Wis. 2d 61, 848 N.W.2d 862 ("Transparency and oversight are essential to honest, ethical governance."). Indeed, in Kai/in, the Wisconsin Court of Appeals held that informed public debate over investigations of public employee misconduct is more important than protecting the reputation or privacy of the public employee involved. 226 Wis. 2d at 153-54. Contrary to Woznicki's assertions that public interest in his personnel file is minimal, as he last worked for the District approximately eighteen years ago, Woznicki has remained almost exclusively employed in the Wisconsin public school system as both a teacher and more recently as an Administrator. (R. 12 at 'I] 8, Ex. Bl.) Woznicki has failed to demonstrate that his speculative concern for his reputation and future employment withstands the great weight of the public's interest in his personnel file, or the volume of the case law supporting the District's decision to release the records. What information a requester may glean from heavily-redacted documents remains to be seen, but the public is nevertheless entitled to receive and review such information. See Ledford, 195 Wis. 2d at 251 ("If the investigation revealed illegal conduct on the part of the public employees, the public is entitled to that information ... ") (emphasis added). 13

18. B. Woznicki Cannot Demonstrate that He Will Be Subjected to Future Harassment, Nor Can He Establish that such Purported Harassment Outweighs the Strong Presumption of Access Just as he has failed to establish that his privacy or reputational concerns require non-disclosure, Woznicki cannot demonstrate that the purported future harassment he claims he may face creates an "exceptional circumstance" so as to overcome the strong presumption in favor of disclosing public records. With respect to his allegations of potential future harassment, Woznicki devotes the vast majority of his Amended Complaint and Appellate Briefto allegations relating to a man named John Batchelor. (See R. 12 at '1]'1] 8-21, Ex.Bl; Appellant Br. at 3-6, 14, 16-17, 20.) As explained by the District on numerous occasions, the records requester is CRG Network, not Mr. Batchelor, and Woznicki has presented nothing other than mere speculation that Mr. Batchelor is involved with CRG Network's request. (See R. 12 at '1]'1] 4, R. 18 at 'l]'l] 7, 9.) In fact, since Woznicki filed the original Summons and Complaint on April 16, 2015, the District has received eight additional requests for his personnel file, including requests from news organizations. 3 None of these additional requests were made by Mr. Batchelor, and there is no evidence to support Woznicki's argument that Mr. Batchelor is behind every request, especially where news organizations have made the requests. 3 Given Woznicki's continued role in the field of public education and the requests for his personnel file from news organizations, there is still clearly significant public interest in the disclosure of his personnel file. Consistent with Wisconsin Statutes Section 19.356(5), the District has notified each requester of the instant action, that the District may not disclose the records while this action is pending, and that the District will notify the requester of, and comply with, the Court's decision regarding the disclosure of Woznicki's personnel file. (See R. 22 at p. 9, n. 1.) 14

19. In arguing that the District's release of these records should be enjoined due to potential future harassment, Woznicki makes a request for an extension of the law and a change to the balancing test. To support this request, he relies on State ex rel. Ardell v. Milwaukee Board of School Directors, 2014 WI App 66, 354 Wis. 2d 471, 849 N.W.2d 894, a case wholly distinguishable from the matter here. In that case, the records requester was an individual who had both been enjoined from having any contact with the employee who was the subject of the records request pursuant to a domestic abuse injunction, and had already pied guilty to two counts of violating the injunction. Id. at 'I] 3. Noting that the legislature had declared the open records law must be construed with a presumption of complete access, the court nevertheless found the physically violent history of the requester towards the subject employee to be so exceptional as to outweigh the presumption. Id. at 'l]'l] 7-9. The court noted that "[t]he determination of whether there is a safety concern that outweighs the presumption of disclosure is a fact-intensive inquiry that we determine on a case-by-case basis." Id. at 'I] I 0 (citing Kroeplin v. DNR, 2006 WI App 227, 'I] 37, 297 Wis. 2d 254, 725 N.W.2d 286). In reviewing the facts, the court was especially persuaded by the requester's violent history with the subject employee, which "align[ ed] him more closely with the class of persons statutorily denied access to public records for safety reasons, that is, committed and incarcerated persons." Id. at '1] 17. Thus, "[i]n committing acts of violence against the [subject employee] and ignoring the domestic abuse injunction, he forfeited his right to the documents he request[ed]." Id. at 'I] 13. 15

20. As already explained, the records requester is not Mr. Batchelor, but rather CRG Network, as well as other news organizations and individuals who have subsequently requested the records. Woznicki has failed to articulate why the nine entities or individuals who have actually made requests - none of whom are Mr. Batchelor and some of whom are news organizations - should not receive copies of the requested records. That said, even if Mr. Batchelor had requested the records, his purported actions do not amount to harassment and there are no allegations of any threats of violence by Mr. Batchelor. Rather, his statement to Woznicki that he wants to review records and publicize information related to Woznicki's alleged previous sexual misconduct with students nowhere near approximates the type of harassing conduct that concerned the court in Ardell. Indeed, contrary to the facts of Ardell, there is absolutely no evidence in the record to suggest that Mr. Batchelor has been involved in previous criminal or civil litigation against Woznicki, or has made any threats of physical violence towards Woznicki. Finally, Woznicki alleges that Mr. Batchelor's alleged future harassment creates a "reasonable probability that the compelled disclosure" of personal information will subject him to "threats, harassment, and reprisals" from either the Government or private parties. See Appellant Br. at 16 (citing Erpenbach, 2014 WI App 49, if 25 (quoting Doe v. Reed, 561U.S.186, 130 S.Ct. 2811 (2010) (internal citations omitted)). However, as Erpenbach noted, although the possibility of threats, harassment or reprisals is a legitimate consideration for a custodian, "the public interest weight given to such a consideration increases or decreases depending on the likelihood of threats, harassment, 16

21. or reprisals actually occurring." 2014 WI App a t ~ 26. There, the court found the records must be disclosed, as the records subject failed to establish a reasonable probability of such harm. Id. Similarly here, none of the requesters have threatened or harassed Woznicki in any way. Although Woznicki provides examples of purported harassment by a third party who has not made a request for records, Mr. Batchelor, any such future harassment is merely conjectural. Indeed, Mr. Batchelor has merely notified Woznicki that he wishes to ensure he does not remain publicly employed. Such an alleged fonn of harassment certainly does not rise to a "reasonable probability of harm," nor is it remotely similar to the harassment at issue in Ardell, as explained above. Accordingly, Woznicki has failed to meet his burden of demonstrating that his circumstances are so exceptional as to overcome the strong presumption in favor of disclosing public records. Thus, this Court must uphold the St. Croix County Circuit Court and District's decision to release Woznicki's personnel file. II. WOZNICKI'S RECORDS RETENTION ARGUMENTS ARE NOT PROPERLY BEFORE THIS COURT, AND EVEN IF THEY WERE, THE DISTRICT HAS COMPLIED WITH ITS RECORDS RETENTION POLICY. Woznicki's allegation that the District has not complied with its own records retention policy is not properly before this Court, as Woznicki has no private cause of action on this issue under Wisconsin Statutes Section 19 .21 ( 6). As the District previously noted to this Court in its Response to Appellant's Docketing Statement, any arguments and relief Woznicki is requesting under Wisconsin Statutes Section 19 .21 is 17

22. not a proper issue on appeal. Accordingly, the Court should refuse Woznicki's requests for relief pursuant to the District's records retention policy. See Appellant Br. at 1, 10- 13, 21; Appellant App. to Br. at 13-16. Even assuming this Court were to consider Woznicki's arguments regarding the District's adherence to its records retention policy, contrary to Woznicki's allegations, the District has complied with its records retention policy. Not only does the Public Records Board's Records Retention Schedule, published via the Wisconsin Department of Public Instruction ("DPI"), establish only a minimum retention period, the District's Board of Education ("School Board") has the authority to determine that certain records should be kept for longer than the designated minimums. District Policy 8310-Public Records provides that "[t]he District will follow the Wisconsin Department of Administration's guidelines on School District record retention," citing to the Wisconsin Records Retention Schedule for School Districts ("Records Retention Schedule") promulgated by the DPI. (R. 12 a t ~ 22; R. 18 a t ~ 10.) In pertinent part, the Records Retention Schedule states that "[t]his Wisconsin School District Records Retention Schedule (WSDRRS) provides recommended retention periods for records common to all school districts. . . . The Schedule serves as a guidepost against which to check the individual needs of each school district." (R. 12, Ex. Dl at page 2) (emphasis added). That the retention periods are minimum requirements is consistent with the plain language of state law, which recommends a minimum period of retention but does not contain any maximum legal limit for retention. Wis. Stat. § 19.21(6) ("The period of time a school district record shall be kept before destruction 18

23. shall be not less than 7 years, unless a shorter period is fixed by the public records board ... ") (emphasis added). To interpret the recommended minimum retention periods as an absolute maximum and all documents older than seven years to be obsolete, which Woznicki would have this Court do, would produce an absurd result. The District would be without any authority to determine that certain records should be maintained for periods outside of seven years or the retention period set by the DPI.4 School districts would be required to destroy almost every record it maintains at most seven years after its creation, even if the records are essential to ongoing litigation, which can very well last beyond seven years. Consistent with the DPl's statement that the recommendations for retention periods serve as a guidepost, the School Board has the absolute authority to determine whether certain records should be maintained outside of the minimum required retention period. See generally Wis. Stat. § 120.12 (listing powers of school boards, which include possession, care, control, and management of property and affairs of school district). On July 1, 2015, the District offered Woznicki an opportunity to review his record prior to disclosure, which he refused to do. (R. 22 at 2.) Woznicki thus has no personal knowledge of whether the records were required to be maintained or destroyed; likewise, he has produced absolutely no evidence in the record to support his new, unfounded accusation that the District maliciously kept his personnel file in an effort to harass him. 4 The Records Retention Schedule provides for some periods for retention of records that are shorter than seven years, in accordance with the authority provided to the Public Records Board under Wisconsin Statutes Sections 19.21(6) and 16.63(3)(e). 19

24. See Appellant Br. at 12 (alleging District "selectively cho[se] to keep only specific files related to specific employees"). However, even ifthere had been evidence introduced to show that the District singled Woznicki out and only maintained his personnel file beyond the minimum retention period while destroying all other former employees' files, such a decision would not be arbitrary or capricious because Woznicki has been involved in several arbitrations and litigation with the District in the past. 5 Moreover, some of the records may arguably relate to labor disputes, for which permanent retention is required. See Appellant Appx. of Br. at 15. Woznicki is thus not entitled to have this Court reconsider the District's decision to maintain such records or its reasoning underlying that decision. Moreover, taking Woznicki's argument to its logical conclusion, he is asking that the Court ignore the legal requirement that once a request for records is received, the District is not permitted to destroy any record responsive to the request, regardless of whether the record is within or outside the recommended minimum retention time. Wis. Stat.§ 19.35 (5) ("No authority may destroy any record at any time after the receipt of a request for inspection or copying of the record under sub. (I) until after the request is granted or until at least 60 days after the date that the request is denied .... "). The District maintains the requested information and cannot now destroy the documents, as 5 In that same vein, it is judicious for the District to maintain Woznicki' s records due to potential future litigation. See, e.g., Wis. Stat. § 893.587 ("An action to recover damages for injury caused by an act that would constitute a violation of s. 948.02 [sexual assault of a child], 948.025 [engaging in repeated acts of sexual assault of the same child], 948.06 [incest with a child], 948.085 [sexual assault of a child placed in substitute care], or 948.095 [sexual assault of a child by a school staff person or a person who works or volunteers with children] or would create a cause of action under s. 895.442 [sexual exploitation by a member of the clergy; action for] shall be commenced before the injured party reaches the age of 35 or be barred."). 20

25. requested by Woznicki. Instead, the District's records authority and legal custodian are legally obligated to produce such existing records. Wis. Stat.§ 19.35(l)(a). In sum, Woznicki' s request for "relief' that the District be required to enforce the District's records retention policy must be denied, as the District is complying with records retention guidelines and the Board has absolute authority to maintain records beyond statutory minimums. CONCLUSION For the foregoing reasons, the District respectfully requests that this Court issue an order upholding the St. Croix County Circuit Court and the District's decision to release the records at issue. RUPP, ANDERSON, SQUIRES & ~ ~ ~ - - ~ ~ 7 Dated: December 30, 2015 M i c h ~ e l J. Waldspurger (#1020974) Trevor S. Helmers (#1096386) Rachel A. Centinario (#1079757) 527 Marquette Ave. S., Suite 1200 Minneapolis, MN 55402 P: (612) 436-4300 E: rnick.waldspurger@raswlaw.com trevor.helmers@raswlaw.com rachel.centinario@raswlaw.com Attorneys for Defendant Moberg and the School District of New Richmond 21

26. CERTIFICATION OF FORM AND LENGTH OF BRIEF I hereby certify that this brief conforms to the rules contained in s. 809. l 9(8)(b) and ( c) for a brief produced with a proportional serif font. The length of this brief is 5,637 words. Dated: December 30, 2015 ac ario (#1079757) 527 Marquette Ave. S., Suite 1200 Minneapolis, MN 55402 P: (612) 436-4300 E: rachel.centinario@raswlaw.com 22

27. CERTIFICATION OF COMPLIANCE WITHS. 809.1902) I hereby certify that: I have submitted an electronic copy of this brief, excluding the appendix, if any, which complies with the requirements of s. 809.19(12). I further certify that: This electronic brief is identical in content and format to the printed form of the brief filed as of this date. A copy of the certificate has been served with the paper copies of this brief filed with the court and served on all opposing parties. Dated: December 30, 2015 B c tin rio (#1079757) 27 Marquette ve. S., Suite 1200 Minneapolis, MN 55402 P: (612) 436-4300 E: rachel.centinario@raswlaw.com 23

28. CERTIFICATION OF SERVICE I hereby certify that on December 30, 2015, in accordance with Wisconsin Statutes Section 809.80(3)(b), ten copies of Defendant-Respondent's Brief and Appendix were mailed via first-class certified mail to the Clerk of the Court of Appeals, P.O. Box 1688, Madison, Wisconsin 53701-1688. I further certify that on December 30, 2015, in accordance with Wisconsin Statutes Section 809 .80(3)(b ), three copies of Defendant-Respondent's brief and appendix were mailed via certified mail to Anne-Marie Woznicki, 6107 Pine Cone Way, Fitchburg, WI 53719, Attorney for Plaintiff-Appellant. Dated: December 30, 2015 a el . 527 Marquette Ave. S., Suite 1200 Minneapolis, MN 55402 P: (612) 436-4300 E: rachel.centinario@raswlaw.com ti ·o (#1079757) 24