Police Officer Loses Public Records Lawsuit Aimed At Obtaining His Own Internal Affairs File

Hal Hempel is a police officer with the City of Baraboo, Wisconsin Police Department. A fellow officer, Kaye Howver, filed an eight-page written complaint against Hempel alleging gender-based harassment. The Department eventually closed its investigation into the matter, with the Chief writing a memorandum to Hempel indicating that the complaint “has been resolved to the mutual satisfaction of the parties and the Department.”

Hempel filed a request for the complete investigatory file under Wisconsin’s Open Records Law. The request squarely faced the Wisconsin Supreme Court with two questions: (1) Does an employee have the right under Wisconsin law to obtain a copy of his or her own internal affairs file; and (2) are internal files generally subject to disclosure under the law.

In a 4-3 decision, the Court rejected Hempel’s request for the records. The Court first turned to the section of the Wisconsin law that allows an individual access to records if they contain “personally identifiable information pertaining to the individual that is maintained by an authority.” To Hempel, it seemed self-evident that his own internal affairs file fell within this category.

The Court disagreed. In essence, the Court found that the right to obtain “personally identifiable information” specifically articulated in the statute did not give Hempel any additional rights to those found elsewhere in the law: “Giving an individual access to records of a government investigation that may be used in a future proceeding, particularly internal investigative records that will identify informants, was never an objective of this portion of the law. We conclude that a police officer is not entitled to inspect records of an internal investigation pertaining to the officer under this section of the statute if the factual circumstances reasonably fall within one or more of the statutory exceptions.

“In this case, Hempel was the subject of an investigation in connection with a complaint. The internal investigation records were maintained in connection with that complaint and are being held for possible use in connection with any future complaint. Disclosure of the records would also expose the names and statements of informants who were promised confidentiality for their cooperation in the internal investigation. Hempel had no right to more information than he received.”

The Court then turned to the general notion of whether internal affairs files such as those of Hempel are subject to disclosure under the law. The Court acknowledged that “this is an uncommon case. Typically, a person subject to misconduct allegations attempts to prevent disclosure of the investigative records. In this case, Hemple is the party seeking release of the records.”

While the Court declined to adopt a broad rule protecting all internal affairs investigations, it did hold that “the Department’s concern about witness confidentiality carries special weight in cases like this one involving sexual harassment. We further agree with the Department that the release of the information could cause a loss of morale within the Department if police officers believed that their personnel files are readily available to the public. If the scrutiny of rank-and-file police officers extends too far, it may indeed discourage qualified candidates from entering police work.”

On balance, the Court found that “the privacy interests in this case are more compelling than those at issue in most of our prior cases because we are not presented here with an alleged wrongdoer trying to cover up evidence. Rather, the Department, as custodian, is trying to protect the complainant and reluctant witnesses involved in an investigation.”

The three dissenting judges contended that the facts before it were not “exceptional or even uncommon,” and that the Court’s opinion “creates a rule that unfortunately can be applied in a broad array of cases to deny access to records.”

Hempel v. City of Baraboo, 699 N.W.2d 551 (Wis. 2005).

This article appears in the September 2005 issue