For public officials, open records remain open


Court rules resignation does not stop right to know





\nWISCONSIN - The Wisconsin Court of Appeals upheld a ruling\nin March that will make it hard for a public officials to avoid\nscrutiny into their wrongdoing by resigning.

The court ruled that privacy and reputational interests of a former\ngovernment employee do not outweigh the public interest in the\ndisclosure of records concerning an investigation into wrongdoing.

"This ruling was not much of a surprise," said Phil\nBrinkman, a reporter for the Wisconsin State Journal. "The\nsad part is that it has dragged on for so long."

The case arose from a controversy that began in 1996 over questions\nabout a Madison elementary school principal's past, including\nallegations of sexual molestation of several school girls.

Principal Stephen Kailin resigned, hoping to avoid public scrutiny.\nBut the controversy was not over, and an attorney retained by\nthe school district continued to interview and obtain affidavits\nfrom the alleged victims.

The Capital Times ran an article about the allegations\nand the Wisconsin State Journal interviewed the school\nsuperintendent. Also, the Journal, citing state open records\nlaws, requested the evidence documenting the school's investigation\ninto the principal's actions.

The school district agreed to release the records.

Kailin contested that decision by taking the school to court.\nHe argued that since he had resigned, the public no longer had\nan interest in seeing these records.

The court disagreed, however, and in February 1998, a circuit\njudge ruled against Kailin. The judge said that if Kailin were\nallowed to close off public access to the records, any public\nofficial in trouble could suppress the release of incriminating\nrecords simply by leaving office.

The appeals court agreed with the lower court's analysis of the\nissue.

"In light of the articles already published and the undeniable\ndamage that has already been done to Kailin's reputation, we conclude\nthat Kailin's reputational interests do not outweigh the public\ninterest in disclosure of the investigative report," the\nappeals court said in Kailin v. Rainwater, 1999 WL 173628\n(Wis. Ct. App. March 31, 1999).

Brinkman said this ruling, if upheld, could have real meaning\nfor journalists. Earlier court rulings, he said, threw a huge\nobstacle in the way of gaining access to employee records. By\nthe time information is released, the public often has lost interest\nin the story.

"This could be vindication for the press," Brinkman\nsaid. "This could help pry open the right [of access to records]."

Kailin has 30 days after the ruling to decide whether to appeal\nthe case to the state supreme court. Another case involving similar\nissues is before the supreme court now, and Kailin's lawyers may\nwait to see the outcome of that case before making their move.\nThe Journal is prepared for the next step.

"It is really too bad that it's taking this long for the\npublic to find out whether their children are being protected,"\nJournal editor Frank Denton said. "We will keep after\nit."\n


reports, Spring 1999