Milwaukee Journal Sentinel v. Department of Administration

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Milwaukee Journal Sentinelvs.Department of Administration
Number: 2009 WI 79, 2007AP1160
Year: 2008
State: Wisconsin
Court: Wisconsin Supreme Court
Other lawsuits in Wisconsin
Other lawsuits in 2008
Precedents include:
This case established that collective bargaining agreement decisions could not override the Wisconsin Open Records Law unless accompanied by a specific legislative bill to do so.
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Deliberative Process Exemption

Milwaukee Journal Sentinel v. Department of Administration is an appeal filed with the Wisconsin Supreme Court in 2009 concerning public records exemptions in collective bargaining agreements. The Journal Sentinel originally submitted the request in 2005 and has finally received the requested documents. After the ruling was issued, the Sentinel made a new request for more up to date information, to which the state promptly replied positively.[1]

Important precedents

This case established that collective bargaining agreement decisions could not override the Wisconsin Open Records Law unless accompanied by a specific legislative bill to do so.


  • The Milwaukee Journal Sentinel had requested from the Department of Administration (DOA) of the State of Wisconsin the names of union-represented state employees who lost the privilege of driving state-owned vehicles because of traffic violations.
  • The newspaper's request for the records under the Wisconsin Open Records Law was denied based on a collective bargaining agreement between the DOA and the Wisconsin State Employees Unions (“WSEU”). The relevant portion of the contract says, "...the Employer will not release information relating to the names … of employees covered by this Agreement to labor unions, labor organizations, local unions or the press…."
  • The newspaperfiled suit in district court, arguing that:
  • The collective bargaining agreement attempts to amend the open records statute through a private agreement between two parties (the union and the DOA).
  • Agreement runs afoul of the U.S. Constitution in the sense that the First Amendment prevents differential, discriminatory treatment toward the press.
  • The Wisconsin Open Records Law has a presumption of disclosure which requires the release of the names of the public employees as sought by the newspaper.
  • The trial court delivered its decision in favor of the newspapers on October 13, 2006.
  • The administration appealed the decision to the Wisconsin Court of Appeals who affirmed the decision of the district court. The administration and the union appealed the case yet again to the Wisconsin Supreme Court

Supporters of the FOIA request

The reporters committee for the Freedom of the Press issued an amicus brief on behalf of the newspaper. To see a copy of the brief, please go to: Amicus brief filed in the lawsuit by the Reporters Committee for Freedom of the Press

Ruling of the court

The trial court ruled in favor of the newspapers, ordering the documents released. It determined that the legislature could not have intended to alter the Wisconsin Open Records Law by ratifying the collective bargaining agreements, thus rendering the exemption in the bargaining agreements pointless. It also determined that there would be no contractual violations if the names were disclosed. Finally the court was forced to apply the balancing test, and determined that the public interest in disclosure clearly outweighed any public or private interest in exempting the documents. The court thus ordered them released.

The Supreme Court affirmed the ruling of the trial court, but remanded the decision for further review based on a new look at the balancing test.

Jurisdiction for the appeal

The Supreme Court determined that, despite the separation of powers argument laid out by the unions and the administration, the courts did in fact have the right to interpret the statutes in question and determine the legislatures intention in ratifying the contracts without actually changing the relevant portions of the open records act.

Collective bargaining as law

The court also determined that the specific collective bargaining agreement arrived at by the administration and the union was not a law. Nor did the act that endorsed collective bargaining for public employees refer at all to the bills ability to alter existing open records legislation. Thus, the article within the collective bargaining contract agreement that exempts employee information from records requests, is not law, does not carry the force of law, and cannot override law. Thus, the ratification of the collective bargaining agreement did not constitute a change in the open records laws of the state.

The Exemption as a condition of employment

The court also ruled on the unions argument that the public records exception was overridden by statute 111.93(3, which states:
"the provisions of [the collective bargaining] agreement shall supersede the provisions of civil service and other applicable statutes . . . related to wages, fringe benefits, hours, and conditions of employment whether or not the matters contained in those statutes, rules, and policies are set forth in the collective bargaining agreement."
The court determined that, even if the exemption is a condition of employment, as the union argues, the public records act is not an "applicable statute" and is not relevant to the issues associated with conditions of employment but is more importantly related to the release of documents to the public. Thus, the exemption to public records requests could not constitute a condition of employment.

Balancing Test

Finally, the court arrived at the balancing test established by Wisconsin Newspress, Inc. v. School District of Sheboygan Falls. The court determined that, even if the public interest in disclosure is low, the burden of proof still rests on those seeking non-disclosure because Wisconsin law naturally favors disclosure. The also note that disclosure is designed to protect privacy and not to prevent embarrassment by those who have committed wrongs citing Zellner v. Cedarburg School District and Linzmeyer v. D.J. Forcey. The court also rejected any security issues as issues that came with public employment and could not be protected against. Based on these two facts, the court decided that, as a group, the public interest in non-disclosure did not out weigh the public interest in disclosure, thus requiring the release of the records. However, the Supreme Court did allow for the possibility that on remand a number of individuals would come forward and present a successful case as to why their record specifically should be exempt.

Associated cases

See also

External links

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