- Associated Press - Sunday, May 11, 2014

MADISON, Wis. (AP) - Government officials can consider the intentions of people who file open records requests when deciding whether to fill them, according to a recent court ruling that experts say marks a significant change in Wisconsin law.

The Court of Appeals ruled last week that the Milwaukee school board acted appropriately when it denied a request for an employee’s attendance and disciplinary records from a man accused of abusing her. The employee had obtained a restraining order against Korry Ardell in the past, and the board said it worried about her safety.

The appeals court said records custodians rightfully considered Ardell’s history when denying his request. Ardell’s attorney, Rebecca Mason, said that had not been allowed in the past and the decision changed state law.

“We’re setting a precedent where you could have a custodian who doesn’t agree with a media outlet or a particular citizen’s viewpoint and … deny the request,” Mason said. “That is not supported anywhere in the case law and it is a slippery slope.”

The woman obtained a restraining order against Ardell in July 2008. He violated it twice by sending the woman text messages and he served three months in jail. But he was free and the order had expired when he filed his open records request in November 2012.

Wisconsin law denies access to most public records to people who are incarcerated. The appeals court said Ardell’s history put him in the same category as inmates even though he wasn’t in jail and had never been criminally charged with abuse.

Ardell’s violent history with the MBSD employee … align him more closely with the class of persons statutorily denied access to public records for all safety reasons, that is, committed and incarcerated persons,” the appeals court wrote in a decision upholding a May 2013 lower court ruling.

Ardell told The Associated Press he sought the records to show the employee wasn’t credible and that she was abusing sick leave and employee benefits.

The court said the facts of the case were “exceptional,” and Milwaukee Assistant City Attorney Melanie Rutledge said she didn’t think the judges meant to create a new law but merely confirm that safety could be considered in records requests. She said the court clarified the law based on past rulings. The decision would likely apply only in very similar cases, she said.

“I think it’s a very good decision and it’s very strong in recognizing the public interest in protecting employee safety,” said Rutledge, who represented the MBSD in the case. “But I also think it’s a very narrow decision.”

Still, Wisconsin Freedom of Information Council members were concerned the ruling would diminish the public’s right to government records.

“Until now we’ve been saying the purpose (behind the request) is irrelevant,” said Christa Westerberg, the council’s vice president. “I think the decision does reject the idea that the identity of the person is never an issue.”

Claire Silverman, an attorney for the Wisconsin League of Municipalities, agreed the decision was a change but said she doesn’t expect the ruling will allow public officials to deny access to records sought by journalists or others, as Mason warned.

Mason planned to appeal the decision to the Wisconsin Supreme Court, along with an appeal of a second restraining order the employee obtained against Ardell in May 2013.

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