Caught Playing Hooky? Using Public Records Requests to Identify Wisconsin Teachers That "Called in Sick" During February Protests
In February, thousands of protestors, including many teachers, attended rallies in Wisconsin’s capitol to protest Governor Scott Walker’s proposed limits on collective bargaining for public workers. As a result, schools were closed for a day or more in many districts. Now conservative groups have filed public records requests asking school districts across the state to release the names of teachers who “called in sick” during the protests.
Many districts have complied, but the Madison School District (“District”), which had four days of closures in February, has denied several public records requests. As reported by the Wisconsin State Journal, the District is concerned that the release of the teachers’ names could “risk the safety of teachers and students, and disrupt morale and the learning environment in schools.” The requesting groups deny that the information will be used to harm or harass teachers. However, the District’s counsel believes otherwise, citing “a number of threats” made against board members, administrators and district employees as a result of teachers’ participation in the protests.
Some districts have successfully prevented disclosure of teachers’ names. The Wisconsin Education Association Council argued on behalf of the La Crosse and Holmen School Districts that safety risks outweighed the benefits of disclosure, obtaining an injunction from a La Crosse Circuit Court Judge.
Wisconsin’s Public Records laws do not include a disclosure exemption for general safety concerns. There is an exemption for specific employee records, including “personally identifiable information” such as addresses, phone numbers and social security numbers. Sec. 19.36(1) of the 2003 Wisconsin Act 47. However, the requestors in this case seek only names, not identifying information.
When there is no established exemption (by statute or common law) and a public records custodian has doubts or concerns about whether to release records, Wisconsin courts perform a balancing test. Sec. 19.35(1)(a). Records may be withheld only if the public interest in nondisclosure outweighs the public interest in disclosure, as there is a strong presumption of access. See Matter of Estates v. Zimmer, 151 Wis. 2d 122 (Wis. Ct. App. 1989).
It remains to be seen how the court will balance the competing interests in this case, and whether the District’s safety argument will outweigh the presumption of disclosure that is central to the Wisconsin Public Records Act.
Washington’s Public Records Act is similar, in that there is no blanket exemption for safety or privacy. To prevent disclosure out of concerns for privacy or safety, an agency must prove that disclosure of the information 1) would be highly offensive to a reasonable person, and 2) is not of legitimate concern to the public. RCW 42.56.050. Specific personal identifying data is, of course, exempt from disclosure. RCW 42.56.210. However, names must generally be disclosed. See John Doe No. 1 v. Reed, __ U.S. ___, 130 S. Ct. 2811, 177 L.Ed.2d 493 (2011) (finding that Washington’s public records act authorized the release of the names of voters who signed referendum petitions); King County v. Sheehan, 114 Wn. App. 325, 57 P.3d 307 (2002) (holding that public records act does not exempt from disclosure the full names and ranks of county police officers).
An article in the May 26, 2011 Seattle Times highlights a recent Seattle “name release” case. A labor arbitrator, acting at the request of the Seattle Police Officers’ Guild, just ordered the Seattle Police Department to stop releasing the names of officers found to have engaged in misconduct. It is reported that the city attorneys plan to appeal, believing the decision is in conflict with Washington law.