See also Zellner v. Herrick.
Zellner v. Cedarburg School District In this 2007 case, the Wisconsin Supreme Court affirmed an Ozaukee County trial court order to release a CD of images that a newspaper requested after a Wisconsin high school teacher was fired for viewing the images on his school computer.
This case established that copyright materials are considered exempt if they fail to meet the federal copyright "fair use" criteria. If they meet the criteria, they can be released.
- On January 17, 2006, Zellner, a science teacher within the school district for eleven years, was terminated from his post for viewing adult websites from his work computer.
- On February 20, 2006, Zellner and the school board met to discuss Zellner's termination. At the meeting, the school board gave Zellner a copy of a memo composed by the district attorney concerning the case and a cd containing a record of the websites, searches and images Zellner had viewed on the computer. The cd was compiled from an investigation conducted on Zellner's computer.
- On February 22, 2006, the Milwaukee Journal Sentinel made a public request for the memo and the CD under the Wisconsin Open Records Law. The district notified Zellner that it intended to release the documents.
- Zellner filed suite in Ozaukee County circuit court, attempting to prevent the release of the documents. Zellner argued that the items were exempt because they contained copyrighted material, were part of a current investigation and contained alleged and unproven information that would undermine Zellner's reputation, citing Newspapers Inc. v. Breier.
- The circuit court ruled against Zellner.
- The case was appealed to the Wisconsin Supreme Court
Ruling of the court
The trial court ruled in favor of the newspapers, ordering the documents released.
The supreme court affirmed the decision of the trial court and ordered the release of the documents.
The court first determined that the records in question were in fact public records and were not subject to copyright laws. In order to determine this, the court looked to federal fair use practices for copyright law.
Federal copyright law
The court included 4 criteria in their estimation of fair use copyright law:
1.) Purpose of use (commercial, educational)
2.) Nature of the work
3.) Amount of copyrighted information used
4.) Affect on the economic value of the work
The court determined that based on these criteria, the documents in question did not fall under the copyright exemption because the district did not gain anything economically from the release of the documents, and the documents were already free to view on the internet.
Exemption for investigations
The court also determined that the documents were not exempt under the Wisconsin Open Records Law's exemption for investigation files prior to disciplinary action. The court felt that the investigation clearly concluded in Zellner's termination and future union grievance hearings did not result in new investigations pending results.
The balancing test
Citing Linzmeyer v. D.J. Forcey, the court established that an individuals personal interest in privacy did not constitute an element of the public interest in keeping the records closed. The court further determined that the public's interest in regulating the behavior of teachers clearly outweighed any public interest for keeping these particular personal records exempt in order to protect Zellner's reputation.
Based on these three arguments, the Supreme Court decided to affirm the decision of the trial court and ordered the documents released.
- Ruling of the Court
- Supreme Court accepts 2 new cases, Wisconsin Law Journal, February 2, 2009
- Fired Cedarburg teacher loses final appeal, Milwaukee Journal Sentinel, January 16, 2009
- School can release pornographic images, Reporter's Committee for Freedom of the Press, May 15, 2007
- School District Required to Release Porn CD, Boardman Law Firm May/June 2007 newsletter
- Teacher may sue, but court orders release of adult images on school computer, Gannett, May 2007
- Court shapes open government in key cases, Your Right to Know,